Danks & McCabe - [2017] FamCAFC 41

FAMILY COURT OF AUSTRALIA

DANKS & MCCABE

[2017] FamCAFC 41

FAMILY LAW – APPEAL – PROPERTY – Where the appellant left the courtroom not long after the commencement of the appeal – Where the respondent and the affected person sought that the appeal be dismissed – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs on a party/party basis – Where the affected person sought costs on an indemnity basis – Where there are circumstances that justify orders for costs – Costs ordered in favour of the respondent on a party/party basis – Where the affected person established exceptional circumstances such that his costs should be calculated on an indemnity basis – Costs ordered in favour of the affected person on an indemnity basis.

Family Law Act 1975 (Cth) – s 117

Colgate-Palmolive and Anor v Cussons Proprietary Limited (1993) 46 FCR 225
Munday & Bowman (1997) FLC 92-784

APPELLANT:

Mr Danks

RESPONDENT:	Ms McCabe
AFFECTED PERSON:	Robin Michael Smith

FILE NUMBER:

MLC

4677

2012

APPEAL NUMBER:

SOA

2016

DATE DELIVERED:

2 March 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

2 March 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 September 2016

LOWER COURT MNC:

[2016] FCCA 2367

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In Person

SOLICITOR FOR THE APPELLANT:

n/a

COUNSEL FOR THE RESPONDENT:

Mr Glass

SOLICITOR FOR THE RESPONDENT:

Lampe Family Lawyers

COUNSEL FOR THE AFFECTED PERSON:

Mr Mawson, QC

SOLICITOR FOR THE AFFECTED

PERSON:

Owen Dixon Chambers

Orders

The Notice of Appeal filed on 6 October 2016 be dismissed.
The appellant pay the respondent’s costs of and incidental to the said Notice of Appeal such costs to be assessed on a party/party basis in default of agreement.
The appellant pay the affected person’s costs of and incidental to the said Notice of Appeal such costs to be assessed on an indemnity basis 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 Danks & McCabe 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).

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

Appeal Number: SOA 89 of 2016
File Number: MLC 4677 of 2012

Mr Danks

Appellant

And

Ms McCabe

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

This is a Notice of Appeal filed by the appellant on 6 October 2016 against orders made by Judge Hartnett on 9 September 2016. The appeal was listed for hearing today and the appellant appeared…

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 Danks & McCabe

Details

AGLC: Danks & McCabe [2017] FamCAFC 41
Case: [2017] FamCAFC 41
Decision Date: 2 March 2017

CaseChat Overview and Summary

In the Family Court of Australia, the case of Danks & McCabe involved an appeal concerning property division and costs. The appellant left the courtroom shortly after the commencement of the appeal. The respondent and the affected person sought the dismissal of the appeal. The court was required to decide on the dismissal of the appeal and the allocation of costs between the parties.

The court considered the circumstances of the appeal and the submissions made by the parties. Given the appellant's departure from the courtroom, the court found that the appeal should be dismissed. Regarding costs, the respondent sought a party/party basis, while the affected person requested an indemnity basis. The court found that the circumstances justified an order for costs in favour of the respondent on a party/party basis, while the affected person established exceptional circumstances warranting an indemnity basis for his costs.

The court ordered that the notice of appeal filed on 6 October 2016 be dismissed. The appellant was ordered to pay the respondent's costs on a party/party basis, and the appellant was also ordered to pay the affected person's costs on an indemnity basis. These orders were subject to assessment and entry into the Court's records.

Orders

Orders of the court

The Notice of Appeal filed on 6 October 2016 be dismissed.

The appellant pay the respondent’s costs of and incidental to the said Notice of Appeal such costs to be assessed on a party/party basis in default of agreement.

The appellant pay the affected person’s costs of and incidental to the said Notice of Appeal such costs to be assessed on an indemnity basis in default of agreement.

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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