Bernier & Bernier - [2022] FedCFamC1A 192

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Bernier & Bernier [2022] FedCFamC1A 192

Appeal from: Bernier & Bernier [2022] FCWAM 118

Appeal number(s): NAA 2020 of 2022

File number: PTW 5811 of 2020

Judgment of: AUSTIN J

Date of judgment: 18 November 2022

Catchwords: FAMILY LAW – APPEAL – Application in an appeal – Summary dismissal – Where the respondent husband seeks that the appeal be summarily dismissed – Where the husband’s application raises essentially the same considerations about the merit of the proposed appeal as the applicant wife’s application for leave to appeal – Where it would be impossible to entertain the application to summarily dismiss the appeal unless and until leave to appeal was granted – Where the hearing proceeded on the discrete question of leave to appeal – Leave to appeal – Where the proposed appeal is futile – Where the appeal is without merit – Leave to appeal refused – Where the husband’s two pending interlocutory applications to summarily dismiss the appeal and to adduce further evidence in the appeal are superfluous and may be dismissed – Order made.

Legislation:
Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 36

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.13

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02

Cases cited:
Kartal & Templeman (2022) FLC 94-080; [2022] FedCFamC1A 46

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Number of paragraphs: 14

Date of hearing: 18 November 2022

Place: Newcastle

Counsel for the Applicant: Mr Hooper SC

Solicitor for the Applicant: Kim Wilson & Co

The Respondent: Litigant in person

ORDERS

NAA 2020 of 2022
PTW 5811 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BERNIER

Applicant

AND:
MR BERNIER

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

18 NOVEMBER 2022

THE COURT ORDERS THAT:
1.The application for leave to appeal is refused and the Notice of Appeal filed on 15 September 2022 is dismissed.
2.Otherwise, the two Applications in an Appeal filed by the respondent on 27 October 2022 are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

On 15 September 2022, the applicant wife filed a Notice of Appeal seeking leave to appeal from a single interim financial order made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bernier & Bernier

Details

AGLC: Bernier & Bernier [2022] FedCFamC1A 192
Case: [2022] FedCFamC1A 192
Decision Date

CaseChat Overview and Summary

In the case of Bernier & Bernier, the Federal Circuit and Family Court of Australia was presented with an appeal from a wife, Ms Bernier, against an interim financial order made by a magistrate of the Magistrates Court of Western Australia. The wife sought leave to appeal from an order that required the sale of the former family home in early 2023, while the husband, Mr Bernier, contested the appeal by applying for it to be summarily dismissed and also sought to adduce further evidence. The wife argued that the magistrate erred by making interim orders instead of deferring the decision on the family home until the final trial, while the husband argued that the appeal was without merit and should be dismissed.

The central legal issue the court had to decide was whether Ms Bernier should be granted leave to appeal the interim financial order. The court had to assess whether the proposed appeal had merit and whether leave should be granted under the relevant provisions of the Federal Circuit and Family Court of Australia Act 2021 and the Federal Court and Federal Circuit and Family Court Regulations 2012. Additionally, the court considered the husband's applications to summarily dismiss the appeal and to adduce further evidence, which became moot if leave to appeal was denied.

In its judgment, the court found that the proposed appeal was both futile and devoid of merit. The court held that even if leave to appeal was granted and the appeal was successful, the sale of the former family home would still be necessary due to the revival of earlier orders. Furthermore, the court found that the wife had failed to identify any legal error by the magistrate, and there was no miscarriage of justice that warranted leave to appeal. As a result, the court refused the wife's application for leave to appeal, dismissed the husband's applications to summarily dismiss the appeal and to adduce further evidence, and consequently dismissed the Notice of Appeal.

In conclusion, the court ordered that the application for leave to appeal was refused, the Notice of Appeal was dismissed, and the husband's applications in the appeal were also dismissed.

Orders