GALBADON & GALBADON - [2015] FamCAFC 59

FAMILY COURT OF AUSTRALIA

GALBADON & GALBADON

[2015] FamCAFC 59

FAMILY LAW – APPEAL – COSTS – Application for an extension of time to apply for costs upon the discontinuance of an appeal – Where notice of discontinuance not served in time – Where leave granted – Where there was no basis for indemnity costs – Where an order for party/party costs should be made– Costs order made.

Family Law Act 1975 (Cth): ss 79, 117
Family Law Rules 2004 (Cth): r 1.14, 22.42

Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225
Gallo v Dawson (1990) 93 ALR 479
Kohan & Kohan (1993) FLC 92-340

APPLICANT:

Ms Galbadon

RESPONDENT:

Mr Galbadon

FILE NUMBER:

WOC

847

2012

APPEAL NUMBER:

2014

DATE DELIVERED:

10 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

10 April 2015

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

9 July 2014

LOWER COURT MNC:

[2014] FCCA 1070

REPRESENTATION

FOR THE APPLICANT:

Dribbus Kovacevic Lawyers

FOR THE RESPONDENT:

Mr Galbadon in Person

Orders

That the applicant be given an extension of time to file an application for costs in the appeal.
That the respondent pay the applicant’s costs of and in relation to the appeal in the amount of $800 within one (1) month.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 99 of 2014
File Number: WOC 847 of 2012

Ms Galbadon

Appellant

And

Mr Galbadon

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.
This is an application by Ms Galbadon (“the wife”) for an extension of time to file an application for costs upon the discontinuance of an appeal presented by Mr Galbadon (“the husband”). That appeal concerned orders made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Judge Altobelli on 9 July 2014. For completeness, it needs to be observed that his Honour’s orders and judgment also dealt with complex parenting issues relating to the parties’ three sons. Self-evidently, there was no appeal in relation to those parenting orders.
The husband is the respondent to this application for an extension of time. He opposes the application for costs.

Background

So as to give the application some context, it is necessary to record a few seemingly uncontentious background facts.
The parties married in 2003 and separated in 2012. As I have already mentioned, there are three children from their marriage. Parenting and property proceedings were heard concurrently by Judge Altobelli in three tranches in early 2014. They culminated in the orders of 9 July 2014, to which reference has already been made.
On 4 August 2014, the husband filed a Notice of Appeal in relation to the orders for property settlement.
Directions were made concerning…

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 GALBADON & GALBADON

Details

AGLC: GALBADON & GALBADON [2015] FamCAFC 59
Case: [2015] FamCAFC 59
Decision Date: 10 April 2015

CaseChat Overview and Summary

The appeal involved a couple, the applicants, who were seeking an extension of time to file an application for costs in relation to a previous appeal. The case was heard in the Supreme Court of Queensland. The applicants argued that the extension was necessary due to delays caused by the respondent's legal team. The legal issues before the court were whether the applicants had a sufficient basis for their request for an extension of time, and whether the respondent should be ordered to pay the costs of the appeal.

The court considered the applicants' reasons for the delay and the impact of the delay on the proceedings. The court noted that the applicants had not acted with the necessary diligence, but also recognised that the delay was not entirely due to their actions. The court found that the applicants had a reasonable basis for their request for an extension of time and that the respondent's conduct had contributed to the delay. The court ordered that the applicants be given an extension of time to file an application for costs in the appeal, and that the respondent pay the applicants' costs of and in relation to the appeal in the amount of $800 within one month.

Orders

Orders of the court

That the applicant be given an extension of time to file an application for costs in the appeal.

That the respondent pay the applicant’s costs of and in relation to the appeal in the amount of $800 within one (1) month.

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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