DAVINT & MALBURON - [2015] FamCAFC 176

FAMILY COURT OF AUSTRALIA

DAVINT & MALBURON

[2015] FamCAFC 176

FAMILY LAW – APPEAL – PROPERTY – Where the appellant seeks to appeal the summary dismissal of his application alleging contravention – Where there is merit in one ground of appeal but in none of the other grounds of appeal – Where the appeal is allowed in part and the order dismissing the application is set aside – Where as a result the costs order made by the trial judge cannot stand and must be set aside – Matter listed for directions to consider whether the discretion should be re-exercised or the matter be remitted for rehearing.

FAMILY LAW – APPEAL – COSTS – Where in the event that the appeal was successful the parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appeal was successful on only one of the five grounds of appeal – Oral applications for costs certificates dismissed.

Family Law Act 1975 (Cth) – s 112AB(1)

Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit Court Rules 2001 (Cth) – rr 13.10(a), 25B.04(a) and (b)

Australian Competition and Consumer Commission v Collings Construction Co Pty Ltd (Unreported, SCNSW 2 July 1997, BC 9702850)
Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483
Button v Cooper (1947) SASR 286
Davint & Malburon [2014] FamCAFC 3

Hale & Hale [2011] FMCAfam 1107

APPELLANT:

Mr Davint

RESPONDENT:

Ms Malburon

FILE NUMBER:

MLC

4677

2012

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

15 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

25 February 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 September 2014

LOWER COURT MNC:

FCCA 1944

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr R Smith

SOLICITOR FOR THE RESPONDENT:

Lampe Family Lawyers

Orders

The appeal be allowed in part.
Paragraph 1 of the orders made on 1 September 2014 be set aside to the extent that it dismisses count 5 of the Further Amended Application Alleging Contravention filed on 10 June 2014.
Paragraph 2 of the orders made on 1 September 2014 be set aside.
The oral applications of the parties for costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
The Notice of Appeal be adjourned for a directions hearing before his Honour Justice Strickland in the Melbourne Registry of the Family Court of Australia at 11:30am on Friday 25 September 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davint & Malburon 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 59 of 2014
File Number: MLC 4677 of 2012

Mr Davint

Appellant

And

Ms Malburon

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 8 September 2014 Mr Davint (“the husband”)…

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 DAVINT & MALBURON

Details

AGLC: DAVINT & MALBURON [2015] FamCAFC 176
Case: [2015] FamCAFC 176
Decision Date: 15 September 2015

CaseChat Overview and Summary

The appeal before the court involved the appellant, DAVINT, who sought to challenge the summary dismissal of his application alleging contravention. The application was dismissed by the trial judge, and the matter was brought before the Family Court of Australia for appeal. The respondent to the appeal, MALBURON, defended the decision of the trial judge. The legal issues that the court was required to decide centered around the grounds of appeal presented by the appellant. The appellant argued that the trial judge had erred in dismissing his application and sought to have the dismissal set aside. The court was also required to consider the costs implications of the appeal, as both parties sought costs certificates.

The court found that while the appellant had merit in one ground of appeal, none of the other grounds presented had any merit. The court examined the evidence and arguments presented by both parties and determined that the appeal was successful in part. The court found that the trial judge had erred in dismissing count 5 of the Further Amended Application Alleging Contravention. As a result, the court set aside the orders made by the trial judge that dismissed count 5 and the associated costs order. The court also dismissed the oral applications for costs certificates made by both parties, as the appeal was only successful on one of the five grounds of appeal.

In summary, the appeal was allowed in part, and the orders dismissing count 5 of the Further Amended Application Alleging Contravention and the associated costs order were set aside. The oral applications for costs certificates were dismissed, and the Notice of Appeal was adjourned for a directions hearing before his Honour Justice Strickland in the Melbourne Registry of the Family Court of Australia. This decision highlights the importance of ensuring that all grounds of appeal have merit, and that the court carefully considers the evidence and arguments presented by both parties in determining the outcome of the appeal.

Orders

Orders of the court

The appeal be allowed in part.

Paragraph 1 of the orders made on 1 September 2014 be set aside to the extent that it dismisses count 5 of the Further Amended Application Alleging Contravention filed on 10 June 2014.

Paragraph 2 of the orders made on 1 September 2014 be set aside.

The oral applications of the parties for costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.

The Notice of Appeal be adjourned for a directions hearing before his Honour Justice Strickland in the Melbourne Registry of the Family Court of Australia at 11:30am on Friday 25 September 2015.

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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