Davint & Malburon - [2014] FamCAFC 3

FAMILY COURT OF AUSTRALIA

DAVINT & MALBURON

[2014] FamCAFC 3

FAMILY LAW – APPEAL – LEAVE TO APPEAL/APPEAL – where the appellant seeks to appeal orders made by the Federal Magistrate (as he then was) dismissing his application in a case filed on 22 October 2012 and the respondent’s application for costs – where it is clearly a mistake by the appellant to seek to appeal the latter order – where the application for leave to appeal relies on the success of the grounds of appeal in establishing errors of principle – where there is no merit in any of the grounds of appeal – application for leave to appeal dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL/APPEAL – COSTS – where the respondent seeks an order for costs in the event that the application for leave is dismissed or if leave is granted and the appeal dismissed – where the applicant opposes the respondent being granted an order for costs – where the appellant has been wholly unsuccessful – where there are circumstances which justify an order for costs being made as sought by the respondent – costs so ordered.

Family Law Act 1975 (Cth) – s 90SN(1)(c)

Bray & Bray (1988) FLC 91-968
Kaljo & Kaljo (1978) FLC 90-445
McDonald & McDonald (1976) FLC 90-047
Molier & Van Wyk (1980) FLC 90-911
Ravasini & Ravasini (1983) FLC 91-312
Rutherford & Rutherford (1991) FLC 92-255
Slapp & Slapp (1989) FLC 92-022
Vasilias & Vasilias (No. 3) [2008] FamCA 407

APPELLANT:

Mr Davint

RESPONDENT:

Ms Malburon

FILE NUMBER:

MLC

4677

2012

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

20 January 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

5 April 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

16 November 2012

LOWER COURT MNC:

FMCAfam 1427

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Puckey

SOLICITOR FOR THE APPELLANT:

Parke Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Nicholson

SOLICITOR FOR THE RESPONDENT:

Lampe Family Lawyers

Orders

The application for leave to appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the application for leave to appeal and the appeal with such costs to be assessed in default of agreement.

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 89 of 2012
File Number: MLC 4677 of 2012

Mr Davint

Appellant

And

Ms Malburon

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 8 February 2013 Mr Davint (“the appellant”) seeks leave to appeal, and if leave is granted, to appeal against orders made by Federal Magistrate Turner (as he then was) on 16 November 2012. Ms Malburon (“the respondent”) opposes the application for leave to appeal, and the appeal,…

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 [2014] FamCAFC 3
Case: [2014] FamCAFC 3
Decision Date: 20 January 2014

CaseChat Overview and Summary

In the case of Davint & Malburon, the appellant sought to appeal against orders made by the Federal Magistrate, which dismissed his application filed on 22 October 2012. The appellant also sought to challenge the respondent's application for costs. The court identified that the appellant's attempt to appeal the order for costs was erroneous. The appellant's application for leave to appeal was contingent upon the success of the grounds of appeal in identifying errors of principle. However, the court found that none of the grounds of appeal had any merit.

The court thoroughly examined the grounds of appeal and concluded that they were devoid of any legal or factual basis. As a result, the application for leave to appeal was dismissed. The respondent subsequently sought an order for costs in the event that the application for leave to appeal was dismissed or if leave was granted and the appeal subsequently dismissed. The appellant opposed the respondent's request for costs. Given that the appellant was wholly unsuccessful in his appeal and in light of the circumstances, the court found that there were grounds to justify the respondent's request for costs. Consequently, the court ordered that the appellant pay the costs of the respondent for the application for leave to appeal and the appeal, with costs to be assessed if the parties could not agree on the amount.

The court's final orders were as follows: the application for leave to appeal was dismissed, and the appellant was ordered to pay the costs of the respondent for the application for leave to appeal and the appeal, with costs to be assessed in default of agreement.

Orders

Orders of the court

The application for leave to appeal be dismissed.

The appellant pay the costs of the respondent of and incidental to the application for leave to appeal and the appeal with such costs to be assessed in default of agreement.

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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