Bethke & Bethke - [2019] FamCAFC 106

FAMILY COURT OF AUSTRALIA

BETHKE & BETHKE

[2019] FamCAFC 106

FAMILY LAW – APPEAL – Dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant repeatedly failed to file a Notice of Address for Service and an Amended Notice of Appeal joining the trustees as parties to the proceedings – Where the matter was adjourned several times – Consideration of merits of substantive appeal – Where the appellant is an undischarged bankrupt– Whether the primary judge misinterpreted the law – Where the primary judge was well aware of requirements and in ordering the joinder of the Trustees – Whether the primary judge erred in considering ss 79(2) and 79(4) of the Family Law Act 1975 (Cth) in making the orders – Where consent orders were made between represented parties – Where the primary judge was entitled to conclude that it was appropriate to make the consent orders – Where there were no discrete reasons for judgment delivered – Where it was sufficient for the primary judge to demonstrate, in the transcript, that the orders consented to were just, equitable and appropriate – Where there is no apparent merit in any of the grounds of appeal – Appeal dismissed.

Bankruptcy Act 1966 (Cth) ss 58(1), 116
Family Law Act 1975 (Cth) ss 79, 97(3), 106B
Family Law Rules 2004 (Cth) rr 1.04, 1.08, 22.45

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Connor & Cosgrove (2017) FLC 93‑769; [2017] FamCAFC 61
Crestin & Crestin (2008) FLC 93-368; [2008] FamCAFC 71
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Markes & Markes [2018] FamCAFC 222

APPELLANT:

Mr Bethke

RESPONDENT:

Ms Bethke

FILE NUMBER:

PAC

602

2016

APPEAL NUMBER:

EAA

127

2017

DATE DELIVERED:

19 June 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Kent & Watts JJ

HEARING DATE:

25 February 2019

LOWER COURT JURISDICTION:

Federal Circuit of Court of Australia

LOWER COURT ORDERS DATE:

23 November 2017

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Godden, Godden Lawyers

Order made on 25 February 2019

Pursuant to r 22.45 of the Family Law Rules 2004 (Cth), the appeal against the orders of a judge of the Federal Circuit Court made on 23 November 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bethke & Bethke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to…

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 Bethke & Bethke

Details

AGLC: Bethke & Bethke [2019] FamCAFC 106
Case: [2019] FamCAFC 106
Decision Date: 19 June 2019

CaseChat Overview and Summary

This appeal concerns the orders made by a judge of the Federal Circuit Court of Australia in relation to property settlement proceedings between the parties. The appeal was dismissed by the Full Court of the Family Court of Australia. The appellant was required to file a Notice of Address for Service and an Amended Notice of Appeal joining the Trustees as parties to the proceedings on several occasions but failed to do so. The Full Court found that the appeal should be dismissed for non-compliance with the Family Law Rules 2004 (Cth) because the appellant had not taken reasonable diligence in proceeding with his appeal and had offered no adequate explanation for his failure to prosecute his appeal. The Full Court also considered the merits of the substantive appeal. The primary judge was correct in making an order joining the Trustees as parties to the proceedings and there was no merit in the grounds of appeal concerning the equitable nature of the orders made. The Full Court concluded that there was no apparent merit in any of the grounds of appeal and dismissed the appeal against the orders of the primary judge made on 23 November 2017.

Orders