Lewberger & Lewberger - [2008] FamCAFC 117

FAMILY COURT OF AUSTRALIA

LEWBERGER & LEWBERGER

[2008] FamCAFC 117

FAMILY LAW - APPLICATION FOR EXTENSION OF TIME TO APPEAL ORDER OF FEDERAL MAGISTRATE – Where costs orders made by Federal Magistrate following consent order for summary dismissal of husband’s application under s 79A, dismissal of spousal maintenance claim and departure application – Where some explanation for delay – Where uncertain whether Applicant husband could pay costs if the appeal was unsuccessful – Where proposed appeal lacks merit – Where strict application of the rules will not work an injustice on the Applicant husband – Application dismissed.

FAMILY LAW - COSTS – Where Applicant husband was wholly unsuccessful in the application – Where circumstances do not warrant indemnity costs – Applicant husband ordered to pay the Respondent wife’s costs as agreed or assessed of application for extension of time.

Family Law Act 1975 (Cth) – s 79A, s 94AAA, s 117, s 117(2A)
Family Law Rules 2004 (Cth) – r 1.14

Federal Magistrates Rules 2001 – r 16.06(2)(e), r 21.02, r 21.05

Carr v Finance Company of Australia Ltd (No 1) (1981) 147 CLR 246
Gallo v Dawson (1990) 93 ALR 479
Lancer & Lancer [2008] FamCAFC 112
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251
McMahon & McMahon (1976) FLC 90-038
Penfold & Penfold (1980) 144 CLR 311
Re Luck (2003) 203 ALR 1

Tormsen & Tormsen (1993) FLC 92-392

APPLICANT:

Mr Lewberger

RESPONDENT:

Ms Lewberger

FILE NUMBER:

SYC

1372

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

6 August 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

JUDGMENT OF:

Boland J

HEARING DATE:

28 July 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

12 September 2007

LOWER COURT MNC:

[2007] FMCAfam1217

REPRESENTATION

ADVOCATE FOR THE APPLICANT:

Mr Lewberger in Person

SOLICITOR FOR THE RESPONDENT:

Mr Dimock of Dimocks Family Lawyers

Orders

The Application in a Case filed 22 May 2008 is dismissed.
That the husband pay the wife’s costs of and incidental to the application as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

IT IS NOTED that publication of this judgment under the pseudonym Lewberger & Lewberger is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 55 of 2008
File Number: SYC 1372 of 2007

Mr Lewberger

Applicant

And

Ms Lewberger

Respondent

REASONS FOR JUDGMENT

Introduction

By Application in Case filed 22 May 2008 Mr Lewberger (“the husband”) seeks orders that he be granted an extension of time in which to file an appeal against costs orders made by Federal Magistrate Housego on 12 September 2007 in proceedings between himself and Ms Lewberger (“the wife”).
On 24 July 2008 the wife filed a Response in which she seeks that the husband’s application be dismissed and that he pay her costs of and incidental to the application on an indemnity basis.
At the hearing before me, the…

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 Lewberger & Lewberger

Details

AGLC: Lewberger & Lewberger [2008] FamCAFC 117
Case: [2008] FamCAFC 117
Decision Date: 6 August 2008

CaseChat Overview and Summary

In the case of Lewberger & Lewberger, the husband, the Applicant, sought an extension of time to appeal an order made by the Federal Magistrate. The original matter involved a consent order for the summary dismissal of the husband’s application under section 79A, the dismissal of a spousal maintenance claim, and a departure application. The Federal Magistrate had also made costs orders following these outcomes.

The primary legal issue before the court was whether to grant the husband's application for an extension of time to appeal the Federal Magistrate's order. The court needed to consider several factors, including the explanation for the delay in making the application, the likelihood of success of the proposed appeal, and whether the strict application of the rules would result in an injustice to the husband. Additionally, the court assessed whether the husband could afford to pay the wife’s costs if the appeal were unsuccessful and whether the husband’s circumstances warranted indemnity costs.

The court found that while there was some explanation for the delay in the application, the proposed appeal lacked merit. Moreover, the court was uncertain whether the husband could pay the wife’s costs if the appeal was unsuccessful. Given these considerations, the court decided that a strict application of the rules would not result in an injustice. Consequently, the husband's application for an extension of time was dismissed. The court further ordered that the husband pay the wife's costs of and incidental to the application, as agreed or assessed under Chapter 19 of the Family Law Rules 2004.

The final orders of the court were that the application for an extension of time to appeal the Federal Magistrate’s order was dismissed, and that the husband pay the wife’s costs of and incidental to the application as agreed or assessed under Chapter 19 of the Family Law Rules 2004.

Orders

Orders of the court

The Application in a Case filed 22 May 2008 is dismissed.

That the husband pay the wife’s costs of and incidental to the application as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

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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