DISHMAN & DISHMAN - [2020] FamCAFC 15

FAMILY COURT OF AUSTRALIA

DISHMAN & DISHMAN

[2020] FamCAFC 15

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where applicant was given twenty-eight days to pay the filing fee and failed to pay on time – Notice of Appeal voided – No adequate explanation for failure to pay – Where the proposed appeal concerns recusal – Where the proposed appeal is doomed to fail – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant sought leave to file further written submissions and affidavit evidence – No appearance by the respondent –Leave granted in the interests of expediency and finality – Where the further submissions and evidence do not raise anything of substance – Application dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 22.02, 22.03, 22.44, 24.05(1)
Family Law Regulations 1984 (Cth) reg 5

Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
R v Watson; Ex Parte Armstrong (1976) 136 CLR 248; [1976] HCA 39
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPLICANT:

Mr Dishman

RESPONDENT:

Ms Dishman

FILE NUMBER:

PAC

6114

2018

APPEAL NUMBER:

132

2019

DATE DELIVERED:

28 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

22 & 28 January 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 September 2019

LOWER COURT MNC:

[2019] FCCA 2786

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Matthews Dooley & Gibson

Orders

That the applicant husband have leave to rely on an Application in an Appeal and affidavit by him dated 28 January 2020, which is returnable instanter.
That the applicant husband have leave to rely on the further Written Submissions filed in Court today and called “Additional Submissions in Reply to Her Honour’s Comments”.
That the Applications in an Appeal filed on 5 December 2019 and 28 January 2020 be dismissed.
That the applicant husband pay the respondent wife’s costs in the amount of $3,960 within twenty-eight (28) days of these orders.

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 Dishman & Dishman 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…

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 DISHMAN & DISHMAN

Details

AGLC: DISHMAN & DISHMAN [2020] FamCAFC 15
Case: [2020] FamCAFC 15
Decision Date: 28 January 2020

CaseChat Overview and Summary

Dishman & Dishman is a family law appeal case in which the husband sought an extension of time to file a Notice of Appeal and permission to file further written submissions and affidavit evidence. The case was heard in the relevant Australian court, and the husband was given a deadline of twenty-eight days to pay the filing fee for the Notice of Appeal. However, he failed to pay on time, leading to the voiding of the Notice of Appeal. The husband's proposed appeal concerns the issue of recusal, and the court found that it was doomed to fail. The husband's application for leave to file further written submissions and affidavit evidence was granted in the interests of expediency and finality, but the application was dismissed as the further submissions and evidence did not raise anything of substance.

The court had to decide whether to grant the husband's application for an extension of time to file the Notice of Appeal and leave to file further written submissions and affidavit evidence. The husband argued that he had a reasonable explanation for his failure to pay the filing fee on time, but the court found that he had not provided an adequate explanation. The court also considered whether the proposed appeal was likely to succeed and found that it was doomed to fail. The court granted leave to file further written submissions and affidavit evidence, but dismissed the application as it did not raise anything of substance.

The court found that the husband's application for an extension of time to file the Notice of Appeal was dismissed as he had failed to pay the filing fee on time, and there was no adequate explanation for his failure. The court also dismissed the husband's application for leave to file further written submissions and affidavit evidence as it did not raise anything of substance. The court ordered that the husband pay the wife's costs in the amount of $3,960 within twenty-eight days of the orders. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

That the applicant husband have leave to rely on an Application in an Appeal and affidavit by him dated 28 January 2020, which is returnable instanter.

That the applicant husband have leave to rely on the further Written Submissions filed in Court today and called “Additional Submissions in Reply to Her Honour’s Comments”.

That the Applications in an Appeal filed on 5 December 2019 and 28 January 2020 be dismissed.

That the applicant husband pay the respondent wife’s costs in the amount of $3,960 within twenty-eight (28) days of these orders.

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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