MCMILLAN & MCMILLAN - [2018] FamCAFC 200

FAMILY COURT OF AUSTRALIA

MCMILLAN & MCMILLAN

[2018] FamCAFC 200

FAMILY LAW – APPLICATION IN AN APPEAL – ADJOURNMENT – Where the appellant sought that the appeals be adjourned – Where the appellant relied on medical certificates to demonstrate that he was unable to present his appeals – Where the medical certificates presented did not establish that there was any medical reason why the hearing of the appeals should be adjourned – Application dismissed.

FAMILY LAW – APPEAL – REFUSE TO STAY – Where the appeal was deemed abandoned on 7 September 2017 – Where there is no appeal on foot that would justify a stay being granted as sought in the appellant’s application before the trial judge – Where even if leave to appeal was granted the application seeking a stay could not be pursued and thus the appeal is futile – Where pursuing the appeal in these circumstances borders on an abuse of process – Where there is no proper basis for leave to appeal to be granted – Where the grounds of appeal relied on are incompetent and no appealable error is demonstrated – Application for leave to appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal does not raise any question of general principle – Where none of the grounds of appeal have merit – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks an order for costs – Where the appellant opposes any such order – Where there are circumstances here which justify an order for costs being made – Where the appellant has been wholly unsuccessful in the appeals – Costs ordered in the sum as sought by the respondent.

Family Law Act 1975 (Cth) ss 94(2A) and 117
Family Law Rules 2004 (Cth) r 19.18

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

APPELLANT:

Mr McMillan

RESPONDENT:

Ms McMillan

FILE NUMBER:

CSC

355

2015

APPEAL NUMBERS:	NOA	42	of	2017
NOA	12	of	2018

DATE DELIVERED:

25 October 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ryan &
Kent JJ

HEARING DATE:

19 October 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

28 September 2017

22 December 2017

LOWER COURT MNC:

[2017] FamCA 773
[2017] FamCA 1102

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR ADVOCATE FOR THE

RESPONDENT:

Mr Lago (via telephone)

SOLICITOR FOR THE RESPONDENT:

WGC Lawyers

Orders

The application for leave to appeal in appeal no. NOA 42 of 2017 be dismissed.
The appeal in appeal no. NOA 12 of 2018 be dismissed.
The appellant husband pay the respondent wife’s costs fixed in the sum of THREE THOUSAND SIX HUNDRED AND TWENTY FIVE DOLLARS AND TEN CENTS [$3,625.10].

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 McMillan & McMillan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law…

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.

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Details

AGLC: MCMILLAN & MCMILLAN [2018] FamCAFC 200
Case: [2018] FamCAFC 200
Decision Date: 25 October 2018

CaseChat Overview and Summary

McMillan & McMillan involved an appeal by the husband against a decision made by the Family Court regarding the financial settlement of their divorce. The husband sought to adjourn the appeal hearings on the basis of medical certificates which he claimed showed his inability to present his case. The wife opposed the adjournment and argued that the medical certificates did not provide any valid reason for the hearing to be postponed. The court held that the medical certificates did not demonstrate any impediment that would justify an adjournment, and therefore dismissed the husband's application for an adjournment.

The court also addressed the husband's application for leave to appeal, which had been deemed abandoned on 7 September 2017. The husband sought a stay of the proceedings to allow the appeal to proceed. The court found that there was no appeal on foot that would justify a stay, and that even if leave to appeal were granted, the application for a stay would be futile. The court further held that pursuing the appeal in these circumstances bordered on an abuse of process, as there was no proper basis for leave to appeal to be granted. The grounds of appeal relied upon were deemed incompetent and did not demonstrate any appealable error. Consequently, the application for leave to appeal was dismissed.

The court also dismissed the appeal in appeal no. NOA 12 of 2018, as the appeal did not raise any question of general principle, and none of the grounds of appeal had merit. In addition, the court ordered the husband to pay the wife’s costs, fixed in the sum of $3,625.10, due to the husband's unsuccessful appeals. This order was made because the appellant had been wholly unsuccessful in his appeals, and the circumstances justified an order for costs.

Orders

Orders of the court

The application for leave to appeal in appeal no. NOA 42 of 2017 be dismissed.

The appeal in appeal no. NOA 12 of 2018 be dismissed.

The appellant husband pay the respondent wife’s costs fixed in the sum of THREE THOUSAND SIX HUNDRED AND TWENTY FIVE DOLLARS AND TEN CENTS [$3,625.10].

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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