Burt & Merrill - [2023] FedCFamC1A 20

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Burt & Merrill [2023] FedCFamC1A 20

Appeal from: Merrill & Burt [2018] FamCA 609

Appeal number: SOA 63 of 2018

File number: MLC 9912 of 2013

Judgment of: AUSTIN J

Date of judgment: 2 March 2023

Catchwords: FAMILY LAW – APPEAL – Property – Application in an Appeal – Slip rule amendment – Where the applicant’s appeal was previously withdrawn without prejudice to his right to seek re-instatement of the appeal – Where those orders were made upon the applicant’s undertaking that an application at first instance would be pursued within seven days, upon which undertaking the applicant defaulted – Where more than three years later the applicant seeks the order be re-crafted in a way which would enable him to unilaterally and unconditionally re-instate the withdrawn appeal at any future time – Where an amendment in the manner the applicant proposes would be unreasonable – Where the applicant refused an immediate re-instatement of the appeal or a confined period of time within which to elect to re-instate it – Application dismissed – No order as to costs.

Legislation:
Family Law Act 1975 (Cth) Pt VIIIAB, s 90SN

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Number of paragraphs: 25

Date of hearing: 27 February 2023 & 2 March 2023

Place: Melbourne

Counsel for the Applicant: Mr Cain (on 27 February 2023)

Solicitor for the Applicant: Vasilaras & Co Lawyers

The First Respondent: Did not participate

Counsel for the Second Respondent: Mr Eely

Solicitor for the Respondents: McKean Park
ORDERS

SOA 63 of 2018
MLC 9912 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR BURT

Applicant

AND:
MS MERRILL

First Respondent

MR COUPE, AS TRUSTEE OF THE BANKRUPT ESTATE OF MS MERILL

Second Respondent

order made by:

AUSTIN J

DATE OF ORDER:

2 March 2023

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 16 December 2022 is dismissed.
2.The second respondent’s application for costs is 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 the pseudonym Burt & Merrill has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

Before the Court is an application to vary an interlocutory order made in September 2019 within the appellate jurisdiction of the Court.
The application is dismissed for the reasons which follow.
History
On 10 August 2018, a judge of the Family Court of Australia (as…

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 Burt & Merrill

Details

AGLC: Burt & Merrill [2023] FedCFamC1A 20
Case: [2023] FedCFamC1A 20
Decision Date

CaseChat Overview and Summary

The case of Burt & Merrill before the Federal Circuit and Family Court of Australia concerns an application to modify an interlocutory order made in a property settlement appeal. The applicant, Mr Burt, seeks to amend the terms of an order from September 2019, which allowed him to withdraw his appeal without prejudice to the right to seek reinstatement. More than three years later, he now seeks to alter the terms of this order to allow him to unilaterally and unconditionally reinstate the appeal at any future time. The application was dismissed by Justice Austin, who found that the amendment sought by the applicant would be unreasonable and would cede control of the appellate proceedings to the applicant, potentially affecting the interests of other parties.

The legal issues in this case primarily revolve around the interpretation and application of the slip rule, the discretionary nature of amending interlocutory orders, and the consequences of the applicant's failure to comply with his undertaking to the Court. The applicant argued that the original intention of the Court was to allow him the right to reinstate his appeal without needing to apply for it, but the Court held that even if there was an inadvertent error, there is no obligation to correct it. The Court also considered the applicant's failure to comply with his undertaking and the delays in the parallel proceedings under s 90SN of the Family Law Act 1975.

Justice Austin concluded that the proposed amendment to the 2019 order would not be a panacea for the applicant and would not be sensible given the interlocutory nature of the order. The Court found that the applicant's generic claim of prejudice dissipated due to his refusal to accept either immediate reinstatement of the appeal or a confined period within which to elect to reinstate it. Consequently, the application was dismissed, and the trustee's application for costs was also dismissed as the scope of the dispute was confined and did not justify significant costs.

Orders