Dakin and Sansbury (No 2) - [2014] FamCAFC 80

FAMILY COURT OF AUSTRALIA

DAKIN & SANSBURY (NO. 2)

[2014] FamCAFC 80

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks to review the exercise of power by the Appeal Registrar – where the application is opposed – where the application is an abuse of process – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks his costs – where the applicant opposes the application – where there was no need for the respondent to respond in the way that he did – where the submissions of counsel were not of assistance – application dismissed.

Family Law Act 1975 (Cth) – s 117

APPLICANT:

Ms Dakin

RESPONDENT:

Mr Sansbury

FILE NUMBER:

MLC

3048

2010

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

7 May 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

7 May 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

12 December 2013

LOWER COURT MNC:

[2013] FCCA 2141

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Mr Trim

SOLICITOR FOR THE RESPONDENT:

Cahill & Rowe Family Law

Orders

The application in an appeal filed on 1 April 2014 be dismissed.
The oral application for costs made on behalf of the respondent be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dakin & Sansbury has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 16 of 2014
File Number: MLC 3048 of 2010

Ms Dakin

Applicant

And

Mr Sansbury

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

The application before me today is an application in an appeal filed by

Ms Dakin (“the applicant”) on 1 April 2014 in which she seeks, and these are my words and my summary, a review of the exercise of power by the Appeal Registrar in uplifting and returning to the applicant her application in an appeal, her affidavit in support, and her draft notice of appeal which were in fact filed on 25 February 2014.
In support of that application the applicant has filed an affidavit.
The application is opposed by Mr Sansbury (“the respondent”); he filed a response on 1 May 2014 seeking a number of orders. I have clarified with counsel for the respondent, Mr Trim, that what his client seeks today is that the application be dismissed, and he does not seek the alternative order sought in paragraph 2 of that response.
To complete the picture, in that response an order is also sought in paragraph 3 “[t]hat the Applicant be restrained from filing any further Application in these proceedings without leave of the Court.” I have indicated earlier, and I confirm, that I am not prepared to make any such order. These proceedings are appeal proceedings, and they only comprise this matter, and…

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 Dakin and Sansbury (No 2)

Details

AGLC: Dakin and Sansbury (No 2) [2014] FamCAFC 80
Case: [2014] FamCAFC 80
Decision Date: 7 May 2014

CaseChat Overview and Summary

In the case of Dakin and Sansbury (No 2), the applicant, Mrs. Dakin, filed an application in an appeal against Mr. Sansbury, seeking to review the exercise of power by the Appeal Registrar. The application was opposed by Mr. Sansbury. The Federal Circuit and Family Court of Australia was required to decide whether the application was an abuse of process and whether it was necessary for Mr. Sansbury to respond in the way that he did.

The court considered that the application was an abuse of process, as the applicant had not provided any grounds for the exercise of the Appeal Registrar's power to be reviewed. Furthermore, the submissions of counsel were not of assistance in resolving the matter. The court held that there was no need for Mr. Sansbury to respond in the way that he did, as the application was an abuse of process.

Consequently, the application in an appeal filed on 1 April 2014 was dismissed. Additionally, the oral application for costs made on behalf of the respondent was also dismissed, as there was no need for the respondent to respond in the way that he did, and the submissions of counsel were not of assistance.

The final orders were that the application in an appeal filed on 1 April 2014 be dismissed and the oral application for costs made on behalf of the respondent be dismissed.

Orders

Orders of the court

The application in an appeal filed on 1 April 2014 be dismissed.

The oral application for costs made on behalf of the respondent be dismissed.

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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