DENNY & BARTLETT - [2020] FamCAFC 182

FAMILY COURT OF AUSTRALIA

DENNY & BARTLETT

[2020] FamCAFC 182

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the applicant wife’s application for costs of a discontinued appeal was brought one day late – Delay explained – Where the wife would suffer an injustice if leave is not granted – Application allowed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for costs of a discontinued appeal – Where the respondent husband’s discontinued appeal sought to challenge spousal maintenance and interim property settlement orders – Where the wife incurred costs unnecessarily – Application allowed – Husband to pay the wife’s costs of the discontinued appeal and this application.

Family Law Act 1975 (Cth) ss 94AA, 94AAA, 117

Family Law Rules 2004 (Cth) Schedule 3, r 1.14

Gallo v Dawson (1990) ALR 479; [1990] HCA 30
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

APPLICANT:

Ms Denny

RESPONDENT:

Mr Bartlett

FILE NUMBER:

PAC

5587

2017

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

28 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

14 July 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 March 2020

LOWER COURT MNC:

[2020] FCCA 678

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Khalil Family Lawyers Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Taylor & Scott Lawyers

Orders

The time for the wife to file an application for costs of the discontinued appeal be extended to 17 June 2020.
The husband is to pay the wife’s costs thrown away by reason of the discontinuation of appeal EAA 41 of 2020 fixed in the sum of $2,431.
The husband is to pay the wife’s costs of and incidental to this application fixed in the sum of $1,364.03.

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 Denny & Bartlett 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 41 of 2020
File Number: PAC 5587 of 2017

Ms Denny

Applicant

And

Mr Bartlett

Respondent

REASONS FOR JUDGMENT

Ms Denny (“the wife”) seeks an order for costs of a discontinued appeal instituted by Mr Bartlett (“the husband”). The Notice of Appeal was filed on 6 April 2020 and pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), it was determined that the appeal would be heard by a single judge. The appeal concerned orders for spousal maintenance and…

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 DENNY & BARTLETT

Details

AGLC: DENNY & BARTLETT [2020] FamCAFC 182
Case: [2020] FamCAFC 182
Decision Date: 28 July 2020

CaseChat Overview and Summary

The wife in Denny & Bartlett brought an application for costs of a discontinued appeal against the husband in the Family Court of Australia. The wife had incurred costs following the husband’s discontinued appeal which sought to challenge spousal maintenance and interim property settlement orders. The application for costs was filed one day late, but the wife sought an extension of time and an order for the husband to pay the costs of the discontinued appeal as well as the costs of the current application. The husband opposed the wife’s application on the grounds that the late filing was unjustified and that the costs incurred were not unreasonable.

The court was required to decide whether to grant the wife an extension of time to file her application for costs of the discontinued appeal, and if so, whether the husband should be ordered to pay the wife’s costs of the discontinued appeal as well as the costs of the current application. The court considered the reasons for the delay in filing the application, the likelihood of injustice to the wife if the application was not allowed, and the merits of the husband’s opposition to the application. The court found that the delay in filing was due to an administrative error and that the wife would suffer an injustice if the application was not allowed. The court also found that the husband’s opposition to the application was not well-founded.

The court allowed the wife’s application for an extension of time to file her application for costs of the discontinued appeal. The court ordered that the husband pay the wife’s costs thrown away by reason of the discontinuation of appeal, fixed in the sum of $2,431, as well as the wife’s costs of and incidental to this application, fixed in the sum of $1,364.03. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The time for the wife to file an application for costs of the discontinued appeal be extended to 17 June 2020.

The husband is to pay the wife’s costs thrown away by reason of the discontinuation of appeal EAA 41 of 2020 fixed in the sum of $2,431.

The husband is to pay the wife’s costs of and incidental to this application fixed in the sum of $1,364.03.

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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