DAKIN & SANSBURY - [2012] FamCAFC 129

FAMILY COURT OF AUSTRALIA

DAKIN & SANSBURY

[2012] FamCAFC 129

FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the appellant did not appear before the Federal Magistrate at the hearing on 30 January 2012 – where the Federal Magistrate determined to proceed and hear the matter in the absence of the appellant – where final orders were made by way of property settlement and spousal maintenance – where the Notice of Appeal is completely inadequate – where an adjournment was granted to enable the appellant to file an amended Notice of Appeal in proper form – where no amended Notice of Appeal as ordered was filed nor was an application made seeking a further extension of time to file – where the appellant makes oral applications for short adjournments – where the appellant is not able to put adequate reasons to the court as to why a further adjournment should be granted – where the respondent opposes any further adjournment – adjournment applications dismissed – inadequate grounds of appeal – appeal dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks costs in the sum of $4,300 – where it is apparent that those costs are well outside the Family Law Scale – where the respondent then sought costs calculated on an indemnity basis – where there are no exceptional circumstances and no basis for awarding indemnity costs – where the appellant opposes any order for costs – where there should be an order for costs made on a party/party basis – costs ordered in the sum of $1,000.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

Colgate-Palmolive Co & Another v Cussons Pty Ltd (1993) 118 ALR 248
D & D (Costs) (No 2) (2010) FLC 93-435
Kohan and Kohan (1993) FLC 92-340
Yunghanns and Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029

APPELLANT:

MS DAKIN

RESPONDENT:

MR SANSBURY

FILE NUMBER:

MLC

3048

2010

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

3 August 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

3 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 January 2012

LOWER COURT MNC:

[2012] FMCAfam 81

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Appellant appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Kiernan

SOLICITOR FOR THE RESPONDENT:

Cahill & Rowe Family Law

Orders

The oral applications for adjournment made by Ms Dakin today be dismissed.
The Notice of Appeal filed on 7 February 2012 be dismissed.
The appellant pay the sum of $1,000 by way of costs thrown away.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 9 of 2012
File Number: MLC 3048 of 2010

MS DAKIN

Appellant:

And

MR…

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: DAKIN & SANSBURY [2012] FamCAFC 129
Case: [2012] FamCAFC 129
Decision Date

CaseChat Overview and Summary

This appeal is from orders made by the Federal Magistrates Court on 30 January 2012 in proceedings concerning a property settlement and spousal maintenance between Ms Dakin and Mr Sansbury. The appeal was filed on 7 February 2012. Ms Dakin did not appear before the Federal Magistrate at the hearing, and the Federal Magistrate proceeded and heard the matter in the absence of Ms Dakin. The Federal Magistrate made final orders by way of property settlement and spousal maintenance, dismissed Ms Dakin's application for spousal maintenance and ordered that both parties retain what they had. The appeal is from those orders.

The legal issues before the court were whether the Notice of Appeal was adequate, whether further adjournments should be granted to Ms Dakin to enable her to file an amended Notice of Appeal and whether costs should be awarded. The court found that the Notice of Appeal was inadequate, that further adjournments should not be granted and that costs should be awarded on a party/party basis.

The court found that the Notice of Appeal was inadequate as it did not set out any recognisable grounds of appeal identifying errors made by the Federal Magistrate. The court had previously given Ms Dakin an opportunity to file an amended Notice of Appeal but she failed to do so. The court also found that further adjournments should not be granted as Ms Dakin was unable to provide a viable proposal as to how she would use the time to prepare an amended Notice of Appeal. The court found that there were circumstances that justified an order for costs but that there were no exceptional circumstances warranting indemnity costs.

The orders of the court were that the oral applications for adjournment made by Ms Dakin be dismissed, that the Notice of Appeal filed on 7 February 2012 be dismissed and that the appellant pay the sum of $1,000 by way of costs thrown away.

Orders