Hagen & Hagen - [2024] FedCFamC1A 71

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hagen & Hagen [2024] FedCFamC1A 71

Appeal from:
Hagen & Hagen (No 5) [2024] FedCFamC2F 38

Hagen & Hagen (No 6) [2024] FedCFamC2F 129

Appeal numbers: NAA 21 of 2024
NAA 43 of 2024

File number: MLC 5784 of 2019

Judgment of: AUSTIN J

Date of judgment: 2 May 2024

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where in January 2024 the primary judge made consequential orders to facilitate the implementation of property settlement orders made between the parties in 2021 (“the final orders”) – Where the appellant appeals from the January 2024 orders (“the substantive appeal”) – Where the appellant’s application to stay the January 2024 orders was partially granted by the primary judge in February 2024 – Where the appellant seeks leave to appeal those orders (“the stay appeal”) – Where the substantive appeal is really a complaint about the final orders – Where the appellant’s grievance with the final orders cannot be ventilated in this appeal – Where the substantive appeal is dismissed – Where the appellant fails to plead any recognisable form of appealable error in the stay appeal – Where leave to appeal is refused – Where the appellant was wholly unsuccessful – Where impecuniosity is not a shield against a costs order – Appellant to pay the costs of the respondent in the fixed sum of $5,000.

Legislation:
Family Law Act 1975 (Cth) Pt VIIIAB, s 90SN

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and r 12.17

Cases cited: Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66

Number of paragraphs: 35

Date of hearing: 2 May 2024

Place: Melbourne

The Appellant: Litigant in person

Counsel for the Respondent: Mr Goussis

Solicitor for the Respondent: Mirabellas Solicitors

ORDERS

NAA 21 of 2024
NAA 43 of 2024
MLC 5784 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR HAGEN

Appellant

AND:
MS HAGEN

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

2 MAY 2024

THE COURT ORDERS THAT:
1.Appeal NAA 21/2024 is dismissed.
2.Leave to appeal is refused in Appeal NAA 43/2024.
3.The appellant shall pay the respondent’s party/party costs of and incidental to the above appellate proceedings fixed in the sum of $5,000.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hagen & Hagen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

Several years ago,…

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 Hagen & Hagen

Details

AGLC: Hagen & Hagen [2024] FedCFamC1A 71
Case: [2024] FedCFamC1A 71
Decision Date: 2 May 2024

CaseChat Overview and Summary

The appeal in NAA 21 of 2024 involved Mr Hagen, the appellant, challenging property settlement orders made in January 2024 by the primary judge to implement the final orders from 2021. These orders were made between the parties, with Ms Hagen, the respondent, being the other party. Mr Hagen sought leave to appeal these consequential orders, which was partially granted by the primary judge in February 2024 in NAA 43 of 2024. The appellant, however, was wholly unsuccessful in both the substantive appeal and the stay appeal.

The legal issues that the court had to address were whether there was any appealable error in the substantive appeal concerning the final orders made in 2021 and whether there was any recognisable form of appealable error in the stay appeal. The court found that the substantive appeal was essentially a complaint about the final orders, which could not be addressed in this appeal. Therefore, the substantive appeal was dismissed. In the stay appeal, the court also found that the appellant had failed to plead any recognisable form of appealable error, and hence, leave to appeal was refused.

In its reasoning, the court emphasised that the appellant's grievances about the final orders could not be ventilated in the substantive appeal and that there was no recognisable form of appealable error in the stay appeal. Consequently, the substantive appeal was dismissed, and leave to appeal the stay appeal was refused. The court also noted that impecuniosity was not a shield against a costs order, and thus, the appellant was ordered to pay the respondent's costs of the appeal in the fixed sum of $5,000. This was the final outcome of the proceedings, with the appellant being wholly unsuccessful in both appeals.

Orders

Orders of the court

NAA 21 of 2024

NAA 43 of 2024

MLC 5784 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HAGEN

Appellant

AND:

MS HAGEN

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

2 MAY 2024

THE COURT ORDERS THAT:

1. Appeal NAA 21/2024 is dismissed.

2. Leave to appeal is refused in Appeal NAA 43/2024.

3. The appellant shall pay the respondent’s party/party costs of and incidental to the above appellate proceedings fixed in the sum of $5,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 21 of 2024 NAA 43 of 2024 MLC 5784 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR HAGEN Appellant
AND:	MS HAGEN Respondent

Appeal from:		Hagen & Hagen (No 5) [2024] FedCFamC2F 38 Hagen & Hagen (No 6) [2024] FedCFamC2F 129
Appeal numbers:		NAA 21 of 2024 NAA 43 of 2024
File number:	MLC 5784 of 2019
Judgment of:	AUSTIN J
Date of judgment:	2 May 2024
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Where in January 2024 the primary judge made consequential orders to facilitate the implementation of property settlement orders made between the parties in 2021 (“the final orders”) – Where the appellant appeals from the January 2024 orders (“the substantive appeal”) – Where the appellant’s application to stay the January 2024 orders was partially granted by the primary judge in February 2024 – Where the appellant seeks leave to appeal those orders (“the stay appeal”) – Where the substantive appeal is really a complaint about the final orders – Where the appellant’s grievance with the final orders cannot be ventilated in this appeal – Where the substantive appeal is dismissed – Where the appellant fails to plead any recognisable form of appealable error in the stay appeal – Where leave to appeal is refused – Where the appellant was wholly unsuccessful – Where impecuniosity is not a shield against a costs order – Appellant to pay the costs of the respondent in the fixed sum of $5,000.
Legislation:	Family Law Act 1975 (Cth) Pt VIIIAB, s 90SN Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and r 12.17
Cases cited:	Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Number of paragraphs:	35
Date of hearing:	2 May 2024
Place:	Melbourne
The Appellant:		Litigant in person
Counsel for the Respondent:		Mr Goussis
Solicitor for the Respondent:		Mirabellas Solicitors

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	2 MAY 2024