Findlay and Daniels (No 2) - [2013] FamCAFC 184

FAMILY COURT OF AUSTRALIA

FINDLAY & DANIELS (NO. 2)

[2013] FamCAFC 184

FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where appellant failed to appear and emailed Appeals Registrar on morning of hearing of matter in Full Court seeking an adjournment because of ill health and asserting non-disclosure by the husband in property settlement proceedings in 2010 – Where there was no medical evidence of the wife’s ill health – adjournment not allowed.

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Application for costs of abandoned appeal – Where the appeal was abandoned by failure of the wife to file appeal books – Where costs sought on an indemnity basis – Where no circumstance justifying an order for costs on an indemnity basis – Where there had been a previous order that Wife pay the husband’s costs – Wife to pay the husband’s costs of the appeal and the costs of the husband’s application to be assessed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 22.13(3), 22.43, 22.43(1) and (2)

APPELLANT:

MS FINDLAY

RESPONDENT:

MR DANIELS

FILE NUMBER:

MLC

1996

2008

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:	18 October 2013
PLACE DELIVERED:	Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Faulks DCJ, May & Murphy JJ

HEARING DATE:

18 October 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 October 2012

LOWER COURT MNC:

[2013] FamCA 864

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

No appearance by or on behalf of the appellant

SOLICITOR FOR THE RESPONDENT:

Respondent appeared in person

Orders

The wife pay the costs of the husband of the appeal filed on 1 November 2012 together with the costs of the application filed 2 July 2013. Such costs to be assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Findlay & Daniels has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 79 of 2012
File Number: MLC 1996 of 2008

Ms Findlay

Appellant

And

Mr Daniels

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

MAY J

At the outset of this matter we informed the applicant, Mr Daniels, that the Appeals Registrar, had received an email from Ms Daniels, who we assume is the respondent, Ms Findlay, to this application. The email was received this morning at 9.11am.
The email says this:
Subject: I have had a seizure.
The body of the email then says:
I am physically unable to attend today. I attach two documents: Statement from [South African Bank] showing funds my ex did not disclose at Trial. Second is ASIC search showing he had a Superannuation Fund from 2008 but did not disclose the funds at Trial.
I request The Bench for an adjournment as Mr [Daniels] must explain the non disclosure to the Honourable Court.
The first observation I could make is that…

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 Findlay and Daniels (No 2)

Details

AGLC: Findlay and Daniels (No 2) [2013] FamCAFC 184
Case: [2013] FamCAFC 184
Decision Date

CaseChat Overview and Summary

The case of Findlay and Daniels (No 2) was heard by the Full Court of the Family Court of Australia, comprising Faulks DCJ, May and Murphy JJ. The appellant, Ms Findlay, was absent at the hearing of the appeal due to an alleged seizure, which the Court found lacked medical evidence. The appeal was related to costs following the abandonment of an appeal filed by Ms Findlay on 1 November 2012, and an application in relation to the costs of that appeal filed by the respondent, Mr Daniels, on 2 July 2013. The primary issue was whether Ms Findlay should be ordered to pay Mr Daniels’ costs of the appeal and the application on an indemnity basis, as requested by Mr Daniels.

The Court considered the provisions of the Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth) relevant to costs in appeals and applications. The Court noted that the appeal was deemed abandoned when Ms Findlay failed to file the appeal books, and that Mr Daniels had previously been ordered to be paid costs for other applications made by Ms Findlay. The Court further observed that Mr Daniels had a costs agreement with his lawyers, and sought costs in the amount of $2462 for the appeal and $1379 for the dismissed applications. The Court held that the appeal had been abandoned and that Mr Daniels was entitled to costs related to the appeal, but declined to order the costs on an indemnity basis.

The reasoning of the Court was that the abandonment of the appeal justified an order for costs in relation to the appeal, but the absence of any exceptional circumstances meant that the order should not be on an indemnity basis. The Court also noted that the wife had previously been ordered to pay the husband's costs for other applications, and that this order would also be assessed together with the costs of the appeal. The Full Court agreed with the proposed orders that Ms Findlay should pay the costs of Mr Daniels of the appeal and the application filed on 2 July 2013, with those costs to be assessed.

In conclusion, the Full Court of the Family Court of Australia dismissed the application for an adjournment and ordered that Ms Findlay pay the costs of Mr Daniels of the appeal and the application filed on 2 July 2013. The costs were to be assessed, and not on an indemnity basis. The Court held that Mr Daniels was entitled to costs related to the appeal due to its abandonment, but the absence of exceptional circumstances precluded an order for costs on an indemnity basis. The Court also noted that the previous order for costs in relation to other applications made by Ms Findlay would also be assessed together with the costs of the appeal.

Orders