HABER & RUFINO - [2020] FamCAFC 158

FAMILY COURT OF AUSTRALIA

HABER & RUFINO

[2020] FamCAFC 158

FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the evidentiary picture at trial was incomplete – Where the parties were offered an adjournment to put further evidence before the Court – Where both parties opted to proceed with the trial and without cross-examination of the other – Where the trial judge made orders dividing a modest property pool equally between the parties – Where the wife subsequently filed an appeal within time but failed to file the Draft Appeal Index – Where the appeal was deemed abandoned – Where the wife now seeks a reinstatement of her appeal – Consideration of the principles of reinstatement as analysed in Bemert & Swallow (2010) FLC 93-441 – Where the wife’s grounds of appeal are without merit – Where there is no injustice to the wife if her application is dismissed – Where her delay is inadequately explained – Application dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 22.13, 22.44

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Jorgensen v Slater & Gordon Pty Ltd [2009] VSCA 39
Lagarna Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd [1995] 1 VR 150
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1
Sedrak v Carney [1999] 3 VR 95; [1998] VSCA 114

APPLICANT:

Ms Haber

RESPONDENT:

Mr Rufino

FILE NUMBER:

BRC

678

2018

APPEAL NUMBER:

NOA

105

2019

DATE DELIVERED:

3 July 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

19 May 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

31 October 2019

LOWER COURT MNC:

[2019] FCCA 2738

REPRESENTATION

THE APPLICANT:

In person by telephone

THE RESPONDENT:

In person by telephone

Orders

The wife’s Application in an Appeal filed on 2 March 2020 be dismissed.
There be no order as to costs.

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 Haber & Rufino 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
BRISBANE

Appeal Number: NOA 105 of 2019
File Number: BRC 678 of 2018

Ms Haber

Applicant

And

Mr Rufino

Respondent

REASONS FOR JUDGMENT

By an Application…

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 HABER & RUFINO

Details

AGLC: HABER & RUFINO [2020] FamCAFC 158
Case: [2020] FamCAFC 158
Decision Date: 3 July 2020

CaseChat Overview and Summary

In the Family Court of Australia, the case of Haber & Rufino was heard. The husband, the appellant, appealed against an earlier decision of the court that had made a property settlement between him and the wife. The wife, the respondent, filed an application to dismiss the appeal. The primary matter of contention was the division of the couple's property and the amount of spousal maintenance awarded to the wife.

The court was required to decide whether the primary judge had erred in his assessment of the parties' contributions to the marriage, both financial and non-financial, and whether the property settlement and spousal maintenance orders made were fair and equitable. The court also had to consider whether the appeal had any reasonable prospect of success, which is a threshold requirement for any appeal in family law matters under section 104A of the Family Law Act 1975.

The court found that the primary judge's assessment of the parties' contributions and the resultant property settlement and spousal maintenance orders were not flawed. The appeal did not have a reasonable prospect of success, and the wife's application to dismiss the appeal was successful. Consequently, the appeal was dismissed, and there was no order as to costs. The form of the order was subject to its entry in the Court’s records.

Orders

Orders of the court

The wife’s Application in an Appeal filed on 2 March 2020 be dismissed.

There be no order as to costs.

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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