Broughton & Broughton - [2014] FamCAFC 206

FAMILY COURT OF AUSTRALIA

BROUGHTON & BROUGHTON

[2014] FamCAFC 206

FAMILY LAW – APPEAL – Application in an appeal for extension of time – where the husband took the right approach by applying at first instance to set aside orders made in his absence – where this did not preclude the husband from appealing the orders made in his absence – where the principles in Gallo v Dawson (1990) 93 ALR 479 were applied to grant the husband’s application for extension of time to appeal the orders made in his absence.

FAMILY LAW – APPEAL – where the trial judge did not consider the provisions of section 79 of the Family Law Act 1975 (Cth) when making orders on an undefended basis – where the trial judge did not provide reasons for the orders – where the appeal was conceded by the respondent - appeal allowed.

Family Law Act 1975 (Cth)
Federal Circuit Court Rules 2001 (Cth), r 16.05
Federal Court Rules 2011(Cth), r 39.05

Allesch v Maunz (2000) 203 CLR 172
Australian Securities and Investments Commission v ActiveSuper Pty Ltd (No 4) [2013] FCA 318
Gallo v Dawson (1990) 93 ALR 479
Harris v Caladine (1991) 172 CLR 84
Taylor v Taylor (1979) 143 CLR 1
Wilkes and Wilkes (1981) FLC 91-060

APPELLANT:

Mr Broughton

RESPONDENT:

Ms Broughton

FILE NUMBER:

CAC

1600

2012

APPEAL NUMBERS:

EA
EA

51
75

Of
Of

2014
2014

DATE DELIVERED:

DATE ORDERS MADE:

23 October 2014

15 October 2014

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Ainslie-Wallace & Ryan JJ

HEARING DATE:

15 October 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

6 June 2013
10 April 2014

FIRST APPEAL LOWER COURT MNC:

[2014] FCCA 667

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Howard

SOLICITOR FOR THE RESPONDENT:

KJB Law

Orders made 15 October 2014

The husband be granted an extension of time to file an appeal against the orders made by Judge Brewster on 6 June 2013 and for that purpose the draft Notice of Appeal received by the Eastern Appeal Registry on 2 July 2014 be treated as the Notice of Appeal (EA75/2014) and as filed on this day.
The appeal (EA75/2014) against orders made by Judge Brewster of
6 June 2013 be listed for hearing today.
The appeal (EA75/2014) against the orders made by Judge Brewster on
6 June 2013 be allowed.
It is noted in connection with this order that this appeal was conceded by the respondent wife.
The orders made by Judge Brewster on 6 June 2013 be set aside.
The wife’s application for property settlement orders (filed on
17 October 2012) be remitted to the Federal Circuit Court for rehearing
(by a judge other than Judge Turner) as expeditiously as possible.
The appeal (EA51/2014) against the order made by Judge Turner on
10 April 2014 is dismissed.
It is noted in connection with this order that this appeal was not heard on its merits.
There be no order for…

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 Broughton & Broughton

Details

AGLC: Broughton & Broughton [2014] FamCAFC 206
Case: [2014] FamCAFC 206
Decision Date: 23 October 2014 15 October 2014

CaseChat Overview and Summary

This appeal before the Family Court of Australia involved three applications related to property settlement orders made in the Federal Circuit Court. The first application was filed by the husband, Mr Broughton, seeking an extension of time to appeal property settlement orders made in his absence by Judge Brewster on 6 June 2013. The second and third applications were filed by the wife, Ms Broughton, seeking summary dismissal of the husband's appeal against an order made by Judge Turner on 10 April 2014, or alternatively, that the husband provide security for her costs of that appeal.

The legal issues before the court were whether the husband's application for an extension of time to appeal the orders made in his absence should be granted and whether the wife's applications against the husband's appeal should be upheld. The court considered the principles in Gallo v Dawson (1990) 93 ALR 479 to grant the husband's application for an extension of time to appeal the orders made in his absence, as he had taken the proper approach by applying at first instance to set aside those orders. The court also found that the trial judge did not consider the provisions of section 79 of the Family Law Act 1975 (Cth) when making the orders on an undefended basis and did not provide reasons for the orders, leading to the appeal being conceded by the wife.

The court allowed the husband's appeal against the orders made by Judge Brewster on 6 June 2013, set aside those orders, and remitted the wife's application for property settlement orders to the Federal Circuit Court for rehearing. The court dismissed the husband's appeal against the orders made by Judge Turner on 10 April 2014, as it was no longer necessary due to the setting aside of the orders of 6 June 2013. The wife's applications for summary dismissal of the husband's appeal or for security of her costs of that appeal were not pursued as they were no longer relevant.

In summary, the court allowed the husband's appeal, set aside the property settlement orders made in his absence, and remitted the wife's application for rehearing. The husband's appeal against the subsequent order was dismissed, and the wife's applications against the husband's appeal were not pursued. Both parties were ordered to bear their own costs of the applications and appeals.

Orders