Davint v Malburon

DAVINT
v
MALBURON
[2015] HCASL 240
M222/2015

The Federal Magistrates Court of Australia (Turner FM) made final orders, by consent, to give effect to a property settlement between the applicant and the respondent. The applicant filed an application seeking orders that the respondent comply with the consent orders, and later sought an order that the time for settlement be extended. Turner FM declined to make the order extending the time for settlement on the basis that the order would have conflicted with the consent orders and dismissed the applicant's application. An appeal by the applicant to a single justice of the Family Court of Australia (Strickland J) exercising that Court's appellate jurisdiction was unsuccessful.
The applicant now seeks special leave to appeal against the orders of the Family Court. The applicant does not have legal representation and requires an enlargement of time for the filing of his application for special leave. The application therefore falls to be dealt with under rr 4.02 and 41.10 of the High Court Rules 2004 (Cth).
The decision of the Family Court involved the resolution of matters of practice and procedure by the application of well-settled principles. Nothing in the applicant's application casts doubt on the correctness of the decisions below or suggests that there is a question of principle which warrants a grant of special leave. It would therefore be futile to grant the enlargement of time sought by the applicant. The application is dismissed.
Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
17 December 2015 S.J. Gageler

CaseChat Overview and Summary

In the case of Davint v Malburon, the Federal Magistrates Court of Australia had previously made final orders, by mutual consent, to enforce a property settlement agreement between the parties. The applicant subsequently sought compliance with these consent orders and later applied for an extension of the settlement time. Turner FM declined to extend the settlement time, ruling that such an order would conflict with the existing consent orders. This decision was subsequently upheld by the Family Court of Australia, which dismissed the applicant's appeal.

The central issue before the court was whether the applicant should be granted special leave to appeal against the Family Court's orders. The court had to determine if there were grounds for the appeal that would warrant a review of the decision below, potentially involving questions of principle that could warrant a grant of special leave. The court examined whether the Family Court's application of well-settled principles in resolving the procedural matters was correct and if the applicant's arguments suggested any doubts about the correctness of the decisions.

The court concluded that the Family Court's decisions were based on well-established principles and that there was no indication in the applicant's application that the decisions were incorrect or that a question of principle warranted further appeal. As such, the court found that granting the enlargement of time sought by the applicant would be futile. The application for special leave to appeal was dismissed, and the court directed the Registrar to prepare an order reflecting this decision.

No further orders were made beyond the dismissal of the application for special leave.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established