CANE & PAYTON - [2016] FamCAFC 197

FAMILY COURT OF AUSTRALIA

CANE & PAYTON

[2016] FamCAFC 197

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant has provided no basis for leave to be granted – Where no error of principle and/or substantial injustice has been demonstrated – Where it was open to the trial judge to make the orders that he did –– Where this is not a case where leave to appeal should be granted.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – Where the respondent seeks summary dismissal of the appellant’s Further Amended Notice of Appeal – Where s 96AA of the Family Law Act 1975 (Cth) is the relevant section –– Where none of the grounds of appeal have any reasonable chance of success – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks an order for costs based on the success of the application for summary dismissal – Where the order was opposed by the appellant on the basis that pursuant to s 117 of the Family Law Act 1975(Cth) each party should bear their own costs – Where the appellant’s financial circumstances are not such that they provide a basis for there being no order for costs being made against her – Where there are circumstances which justify an order for costs being made – Costs order made in favour of the respondent.

Child Support (Assessment) Act 1989 (Cth) – ss 102A, 116 and Part 7 Division 5
Family Law Act 1975 (Cth) – ss 96AA, 117(1) and (2)
Federal Circuit Court of Australia Act 1999 (Cth) – s 17A

Family Law Rules 2004 (Cth) – r 10.12

Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Rutherford v Rutherford (1991) FLC 92-255

APPELLANT:

Ms Cane

RESPONDENT:

Mr Payton

FILE NUMBER:

MLC

4645

2015

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

12 October 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

12 February 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

10 August 2015

LOWER COURT MNC:

[2015] FCCA 2718

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Bacon

SOLICITOR FOR THE APPELLANT:

Manby & Scott Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Williams

SOLICITOR FOR THE RESPONDENT:

Carew Counsel Solicitors

Orders of 12 February 2016

The Further Amended Notice of Appeal filed on 15 January 2016 be dismissed.
Judgment be reserved in relation to the application for costs made on behalf of the applicant.

Order of 12 October 2016

The appellant pay the respondent’s costs of and incidental to the application in an appeal filed on 8 February 2016, with such costs to be assessed in default of agreement.

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 Cane & Payton has been approved by the Chief Justice pursuant to s 121(9)(g)…

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.

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Details

AGLC: CANE & PAYTON [2016] FamCAFC 197
Case: [2016] FamCAFC 197
Decision Date: 12 October 2016

CaseChat Overview and Summary

The matter before the court involved an appeal against a decision in family law proceedings, where the appellant sought leave to appeal. The appeal was against the orders made by the trial judge in relation to property settlement and spousal maintenance. The respondent, in turn, sought summary dismissal of the appeal and an order for costs. The case was heard in the Family Court of Australia.

The primary legal issues that the court had to decide were whether the appellant had provided sufficient grounds to warrant the grant of leave to appeal, and whether the appeal had any reasonable chance of success. Additionally, the court had to determine whether the respondent’s application for summary dismissal of the appeal should be successful, and if an order for costs should be made in favour of the respondent.

The court found that the appellant had not provided any basis for leave to be granted as there was no error of principle or substantial injustice demonstrated. The trial judge was within their discretion to make the orders that they did, and this was not a case where leave to appeal should be granted. Furthermore, the court found that none of the grounds of appeal had any reasonable chance of success, and thus the respondent’s application for summary dismissal was successful. Lastly, the court found that the appellant’s financial circumstances did not provide a basis for there being no order for costs being made against her, and that there were circumstances which justified an order for costs being made. Therefore, an order for costs was made in favour of the respondent.

The appeal was dismissed, and an order for costs was made in favour of the respondent.

Orders