Carbry and Hazart - [2020] FamCAFC 67

FAMILY COURT OF AUSTRALIA

CARBRY & HAZART

[2020] FamCAFC 67

FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file a Notice of Appeal – Where incomprehensible and unmeritorious challenges advanced by the husband – Where the appeal wholly lacks merit – Where no adequate explanation for the delay in filing a Notice of Appeal – Oral application to adjourn the hearing of the Application in an Appeal dismissed – Application in an Appeal dismissed – Husband to pay the wife’s costs as assessed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 1.14(1) and r 1.21

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPLICANT:

Mr Carbry

RESPONDENT:

Ms Hazart

FILE NUMBER:

BRC

8600

2018

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

27 March 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

3 March 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 December 2019

LOWER COURT MNC:

[2019] FCCA 3627

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Page QC

SOLICITOR FOR THE RESPONDENT:

Michael Dwyer Solicitor

Orders

The husband’s oral application to adjourn the hearing of his Application in an Appeal filed 16 January 2020 is dismissed.
The husband’s Application in an Appeal filed 16 January 2020 is dismissed.
The husband is to pay the wife’s costs of and incidental to his Application in an Appeal filed 16 January 2020 within twenty-eight (28) days of their assessment.

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 Carbry & Hazart 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 record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS

Appeal Number: NOA 12 of 2020
File Number: BRC 8600 of 2018

Mr Carbry

Applicant

And

Ms Hazart

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 13 December 2019, pursuant to an Application in a Case filed by Ms Hazart (“the wife”) the primary judge made orders that required Mr Carbry (“the husband”) to vacate the parties’ former matrimonial home at C Town, in the D Region (“the property”). Ancillary orders were also made, restraining the husband from entering the property thereafter, from having contact with the real estate agent conducting the sale, or any perspective purchaser, of the property. He was also, by injunction, required to remove all of his personal items from the property.
No appeal from those orders was brought within the time limited for its institution. Now, by Application in an Appeal filed 16 January…

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 Carbry and Hazart

Details

AGLC: Carbry and Hazart [2020] FamCAFC 67
Case: [2020] FamCAFC 67
Decision Date: 27 March 2020

CaseChat Overview and Summary

The husband, Carbry, appealed against a decision of the Family Court concerning the division of property between the parties. The wife, Hazart, applied for an order dismissing the appeal and for the husband to pay her costs. The application was heard in the Family Court of Australia. The husband sought an adjournment of the hearing and, if the adjournment was refused, that the appeal be allowed. He also sought various orders for costs.

The court considered the criteria for granting an adjournment and concluded that there were no exceptional circumstances warranting an adjournment. The court also considered whether the appeal should succeed. It concluded that the appeal was frivolous and vexatious and, accordingly, dismissed the appeal. The court found that the husband's Application in an Appeal was an abuse of process and ordered that the husband pay the wife's costs of and incidental to the appeal.

The husband's application for an adjournment was dismissed and his appeal was dismissed. The husband was ordered to pay the wife's costs of and incidental to the appeal.

Orders

Orders of the court

The husband’s oral application to adjourn the hearing of his Application in an Appeal filed 16 January 2020 is dismissed.

The husband’s Application in an Appeal filed 16 January 2020 is dismissed.

The husband is to pay the wife’s costs of and incidental to his Application in an Appeal filed 16 January 2020 within twenty-eight (28) days of their assessment.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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