HUTH & HUTH - [2019] FamCAFC 26

FAMILY COURT OF AUSTRALIA

HUTH & HUTH

[2019] FamCAFC 26

FAMILY LAW – APPEAL – CONTRAVENTION – Where the appellant failed to appear at the hearing alleging he did not know about the listing and in any event he was unwell and he would not be appearing – Where the appellant had not complied with the orders of this Court – Where Senior Counsel on behalf of the respondent sought that the appeal be dismissed on its merits and in the alternative, that the Amended Notice of Appeal be struck out on the basis that the appellant failed to appear to pursue his appeal and failed to comply with orders – Where the appellant was well aware of the hearing – Amended Notice of Appeal struck out.

FAMILY LAW – COSTS – Where the respondent seeks her costs thrown away – Where the amount sought is reasonable in the circumstances and less than what the costs would be on a party/party basis – Costs ordered as sought by the respondent in the sum of $5,000.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

MR HUTH

RESPONDENT:

MS HUTH

APPEAL NUMBER:	WEA	33	of	2018
FILE NUMBER:	PTW	3874	of	2016

DATE DELIVERED:

18 February 2019

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland J

HEARING DATE:

18 February 2019

REPRESENTATION

THE APPELLANT:	No appearance
COUNSEL FOR THE RESPONDENT:	Mr Hedges SC

SOLICITOR FOR THE RESPONDENT:

WA Family Legal

Orders

The Amended Notice of Appeal filed on 10 January 2019 be struck out.
The husband pay to the wife costs thrown away today fixed in the sum of FIVE THOUSAND DOLLARS [$5,000] such amount to be paid within 28 days of the date hereof.

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 Huth & Huth 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

FILE NUMBER: PTW 3874 of 2016
APPEAL NUMBER: WEA 33 of 2019

Mr Huth

Appellant

And

Ms Huth

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is an Amended Notice of Appeal filed by Mr Huth (“the husband”) on 10 January 2019. Today was the date set for the hearing of that Amended Notice of Appeal, however, the husband has failed to appear.
Senior Counsel has appeared for Ms Huth (“the wife”), and he has advised the court that prior to the commencement of the hearing today, his instructing solicitor’s secretary telephoned…

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 HUTH & HUTH

Details

AGLC: HUTH & HUTH [2019] FamCAFC 26
Case: [2019] FamCAFC 26
Decision Date: 18 February 2019

CaseChat Overview and Summary

The appellant, Huth, contested a family law matter in the court, asserting that he was unaware of a scheduled hearing date and was unwell, leading to his non-attendance. The respondent argued that the appellant had been well aware of the hearing and had failed to comply with court orders. The court was tasked with deciding whether to dismiss the appeal on its merits, strike out the Amended Notice of Appeal due to the appellant's non-appearance, and whether to award costs to the respondent. The respondent's counsel submitted that the appeal should be dismissed and the Amended Notice of Appeal struck out, given the appellant's lack of appearance and non-compliance with court orders. Furthermore, the respondent sought her costs, arguing that the amount was reasonable and less than what would be awarded on a party/party basis.

The court found that the appellant had been well aware of the hearing and had deliberately chosen not to attend, and that he had not complied with the court's orders. Consequently, the court dismissed the appeal on its merits and struck out the Amended Notice of Appeal. Additionally, the court granted the respondent's application for costs, ordering the appellant to pay $5,000 within 28 days, finding the amount reasonable given the circumstances. The court's decision was final, with the form of the order subject to its entry in the court's records.

Orders

Orders of the court

The Amended Notice of Appeal filed on 10 January 2019 be struck out.

The husband pay to the wife costs thrown away today fixed in the sum of FIVE THOUSAND DOLLARS [$5,000] such amount to be paid within 28 days of the date hereof.

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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