Caffyn & Protz Group - [2018] FamCAFC 147

FAMILY COURT OF AUSTRALIA

CAFFYN & PROTZ GROUP AND ANOR

[2018] FamCAFC 147

FAMILY LAW – APPEAL – Application in an appeal for an extension of time – Where final orders were made by consent – Where the primary judge in making the orders was not exercising discretion under the Family Law Act 1975 (Cth) – Therefore the primary judge need not be satisfied that the orders were just and equitable – Where the appeal has no merit – Application refused.

FAMILY LAW – APPEAL – Application in an appeal for expedition – Where final orders were made by consent – Where wife seeks expedition of appeal on basis of personal medical and financial circumstances – Where supporting documents provided did not address wife’s condition in relation to her participation or continuation of present legal proceedings – Where wife has not demonstrated circumstances that would cause this appeal to be given priority over other cases – Application dismissed – Where orders as to costs to be determined in chambers.

Family Law Act 1975 (Cth) s 94(2D)(j)

Family Law Rules 2004 (Cth) r 12.10A(4)

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Warby & Warby (2002) FLC 93-091; [2001] FamCA 1469

APPELLANT:

Ms Caffyn

FIRST RESPONDENT:

Protz Group Pty Ltd & B Pty Ltd (in liquidation)

SECOND RESPONDENT:

Mr Caffyn

FILE NUMBER:

PAC

3892

2015

APPEAL NUMBERS:

EA 72

a and EA 82

2018

DATE DELIVERED:

9 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

17 July 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

Not applicable

LOWER COURT MNC:

Not applicable

REPRESENTATION

THE APPLICANT:

In person

SOLICTOR FOR THE 1^ST RESPONDENT:

Mr O’Neill

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Heazlewood

SOLICITOR FOR THE 2^ND RESPONDENT:

Lewarne & Goldsmith

Orders

Application to extend time in which to appeal against the orders of Rees J made on 23 April 2018 is dismissed.
Application for expedition of Appeal EA 72 of 2018 against the orders of Rees J made on 26 April is dismissed.
Direct that the wife file and serve by 4 pm 24 August 2018 a submission of no more than two pages on the issue of the costs orders sought by the respondents.
The respondents file and serve any reply no more than two pages by 4pm

31 August 2018.
The question of whether costs are to be ordered is reserved to be dealt with in chambers.

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 Caffyn & Protz Group and Anor 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…

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 Caffyn & Protz Group

Details

AGLC: Caffyn & Protz Group [2018] FamCAFC 147
Case: [2018] FamCAFC 147
Decision Date: 9 August 2018

CaseChat Overview and Summary

The applicants, Caffyn and Protz, sought an extension of time and expedition for an appeal against orders made by Rees J in the Family Court. The appeal pertained to consent orders that had been made between the parties, which were subsequently affirmed by the primary judge. The applicants' application for an extension of time was grounded on the need for additional time to prepare their appeal, while the request for expedition was based on the wife's medical and financial circumstances. The court was required to determine whether the applicants' circumstances warranted an extension of time and whether the appeal should be expedited over other cases.

The court examined whether the primary judge exercised a discretionary power under the Family Law Act 1975 (Cth) when making the final orders, concluding that no such discretion was exercised as the orders were made by consent. Consequently, the court found that the primary judge was not required to be satisfied that the orders were just and equitable. The court also assessed the merits of the appeal, finding it to be without merit. Furthermore, the court found that the wife had not demonstrated exceptional circumstances that would justify expediting the appeal over other cases. The court was also unpersuaded by the wife's medical and financial circumstances as they did not directly relate to her ability to participate in the ongoing legal proceedings.

The court dismissed both the application for an extension of time and the application for expedition of the appeal. The wife was directed to file a submission on the issue of costs orders sought by the respondents, with the respondents to file a reply. The court reserved the question of whether costs should be ordered, deciding that it would be addressed in chambers. The court's orders were clear and directed the applicants and respondents to provide concise written submissions on the issue of costs, with the final decision on costs to be made in chambers.

Orders

Orders of the court

Application to extend time in which to appeal against the orders of Rees J made on 23 April 2018 is dismissed.

Application for expedition of Appeal EA 72 of 2018 against the orders of Rees J made on 26 April is dismissed.

Direct that the wife file and serve by 4 pm 24 August 2018 a submission of no more than two pages on the issue of the costs orders sought by the respondents.

The respondents file and serve any reply no more than two pages by 4pm

31 August 2018.

The question of whether costs are to be ordered is reserved to be dealt with in chambers.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.