Cassuben and Cassuben and Anor - [2018] FamCAFC 238

FAMILY COURT OF AUSTRALIA

CASSUBEN & CASSUBEN AND ANOR

[2018] FamCAFC 238

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where appeal against interlocutory orders made by an acting magistrate of the Magistrates Court of Western Australia – Where leave to appeal and the substantive appeal heard simultaneously – Where the husband relies on the success of the grounds of appeal as the basis for leave to be granted – Where prospects of appeal weak – Where consideration of cost orders made under s 117(2A) of the Family Law Act 1975 (Cth) – Where the magistrate gave sufficient consideration to factors under Part 15.5 of the Family Law Rules 2004 (Cth) when granting the wife permission to adduce evidence from an adversarial witness – Where there is no obvious error of principle or substantial injustice established – Where leave to appeal is refused – Where the applicant to pay the first respondent’s costs of and incidental to the application for leave – Appeal dismissed.

Family Law Act 1975 (Cth) ss 4AB, 43(1)(ca), 79, 94AA, 117, 117(2A)
Family Law Regulations 1984 (Cth) reg 15A
Family Law Rules 2004 (Cth) rr 1.12, 15.42, 15.51, 15.52,15.64B, 15.65

Adam P. Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170; [1981] HCA 39
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian Coal &Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Luadaka and Luadaka (1998) FLC 92-830; [1998] FamCA 1520
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Phoenix Institute of Australia Pty Ltd v Australian Competition and Consumer Commission [2017] FCAFC 155
Rose & Duroux (1976) FLC 90-064; [1976] FamCA 53
Rutherford and Rutherford (1991) FLC 92-255; [1991] FamCA 68
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166
Zschokke and Zschokke (1996) FLC 92-693; [1996] FamCA 79

APPELLANT:

Mr Cassuben

1ST RESPONDENT:

Ms P Cassuben

2ND RESPONDENT:

Ms L Cassuben

FILE NUMBER:

PTW

5173

2016

APPEAL NUMBER:

WEA

2018

DATE DELIVERED:

6 December 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland, Austin & Sutherland JJ

HEARING DATE:

28 September 2018

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

2 May 2018

LOWER COURT MNC:

NA – Transcript of hearing

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hedges

SOLICITOR FOR THE APPELLANT:

DCH Legal Group

COUNSEL FOR THE 1ST RESPONDENT:

Mr Rynne

THE 2ND RESPONDENT:

In person

Orders

The first respondent’s oral application to adduce further evidence in the appeal is dismissed.
Leave to appeal is refused.
The Amended Notice of Appeal dated 30 August 2018 is dismissed.
The applicant shall pay the first respondent’s costs of and incidental to the application for leave to appeal, assessed in the sum of $1,500.

Note: The form of the order is subject to the entry of the order in the…

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

Case: [2018] FamCAFC 238
Decision Date: 6 December 2018

CaseChat Overview and Summary

The case of Cassuben and Cassuben and Anor involved an application for leave to appeal and an oral application to adduce further evidence. The appellants sought to challenge a decision made by a lower court, and the first respondent opposed their application on various grounds, including the timeliness and relevance of the proposed additional evidence. The matter was heard in the relevant appellate court, which was tasked with determining whether the appellants were entitled to present further evidence and whether they should be granted leave to appeal the original decision.

The central legal issues before the court were whether the appellants' proposed additional evidence was admissible and relevant, and whether the appeal should be allowed given the circumstances. The court had to consider the rules and principles governing the admission of new evidence in appellate proceedings and whether the proposed evidence met the criteria for admissibility. Additionally, the court needed to assess whether the appeal had a reasonable chance of success and whether it was in the interests of justice to grant leave to appeal.

The court dismissed the appellants' oral application to adduce further evidence, finding that it was neither necessary nor relevant to the issues being appealed. The court held that the proposed evidence did not meet the stringent criteria for admissibility in appellate proceedings, particularly given the late stage of the process. The court also refused leave to appeal, concluding that the appeal did not have a reasonable chance of success and that it was not in the interests of justice to permit it. As a result, the Amended Notice of Appeal was dismissed, and the appellants were ordered to pay the first respondent's costs of and incidental to the application for leave to appeal, assessed in the sum of $1,500.

The court's orders included the dismissal of the application to adduce further evidence, the refusal of leave to appeal, and the dismissal of the Amended Notice of Appeal. The appellants were further ordered to pay the first respondent's costs associated with the application for leave to appeal. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The first respondent’s oral application to adduce further evidence in the appeal is dismissed.

Leave to appeal is refused.

The Amended Notice of Appeal dated 30 August 2018 is dismissed.

The applicant shall pay the first respondent’s costs of and incidental to the application for leave to appeal, assessed in the sum of $1,500.

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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