McMillan & McMillan

Case [2017] FamCAFC 88

FAMILY COURT OF AUSTRALIA

MCMILLAN & MCMILLAN [2017] FamCAFC 88
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – extension of time to file Notice of Appeal – where the husband sought to file two Notices of Appeal out of time – where the first Notice of Appeal related to the trial judge’s decision to dismiss an application to strike out an enforcement warrant issued by the wife in relation to a costs order –where the second Notice of Appeal related to the trial judge’s decision not to recuse himself – where there was a substantial delay in the husband filing the Notice of Appeal – where the husband’s explanation did not constitute a reasonable excuse for a delay of this magnitude – applications dismissed – costs ordered.

Family Law Act 1975 (Cth) ss 94(2D)(e), 94AA(1)
Family Law Regulations 1984 (Cth) reg 15A
Family Law Rules 2004 (Cth) rr 1.14(1), 1.14(3), 22.03, 117

Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170
Bant & Clayton [2014] FamCAFC 108
Bowcott & Welling (2016) FLC 93-723
Chong & Chong [2016] FamCAFC 211
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gallo v Dawson (1990) 93 ALR 479
Joshua & Joshua (1997) FLC 92-767
Manotis & Manotis and Ors (No 2) [2016] FamCAFC 232
Niemann v Electronic Industries Ltd [1978] VR 431
Rutherford & Rutherford (1991) FLC 92-255
Samsung Electronics Company Ltd v Apple Inc and Anor (2011) 217 FCR 238
Tormsen & Tormsen (1993) FLC 92-392

APPLICANT: Mr McMillan
RESPONDENT: Ms McMillan
FILE NUMBER: CSC 355 of 2015
FIRST APPEAL NUMBER: NA 11 of 2017
SECOND APPEAL NUMBER: NA 12 of 2017
DATE DELIVERED: 24 April 2017
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Murphy J
HEARING DATE: 24 April 2017
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE:

23 May 2016

25 October 2016
LOWER COURT MNC: [2016] FamCA 387
[2016] FamCA 894

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person
SOLICITOR FOR THE RESPONDENT: Mr Lago appearing via videolink

Orders

  1. The Application in an Appeal filed 23 February 2017 in respect of Appeal number NA11 of 2017 be dismissed.

  2. The Application in an Appeal filed 23 February 2017 in respect of Appeal number NA12 of 2017 be dismissed.

  3. The applicant husband pay the respondent wife’s costs of and incidental to both Applications in an Appeal in an amount to be agreed between the parties in writing or failing agreement, as assessed.

  4. The costs ordered in (3) be paid within sixty (60) days of the date of any such assessment or agreement.

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 Act 1975 (Cth).

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AGLC
McMillan & McMillan [2017] FamCAFC 88
Case
[2017] FamCAFC 88
Decision Date

CaseChat Overview and Summary

The case involved an appeal by the husband against two decisions of the Family Court of Australia, which were subsequently dismissed by the Full Court of the Family Court of Australia. The wife had filed for property settlement, and the husband sought to appeal against the decisions of the primary judge. The primary judge had ordered the husband to pay the wife’s costs of the proceedings in the Family Court and the Full Court. The husband appealed the orders for costs, arguing that they were excessive and should not be paid.

The court considered the husband's appeal, which focused on the amount of costs ordered to be paid by the husband to the wife. The court was required to determine whether the orders for costs were appropriate, and if not, whether the amount should be reduced. The court noted that the husband had not provided any evidence to support his claim that the costs were excessive. The court also considered the nature of the appeal, which was unsuccessful, and the conduct of the husband during the proceedings. The court found that the orders for costs were reasonable and appropriate, and that the husband should pay the wife's costs of and incidental to both Applications in an Appeal.

The court dismissed the husband's appeal, finding that the orders for costs were appropriate and that the husband should pay the wife's costs. The court ordered that the husband pay the wife's costs of and incidental to both Applications in an Appeal in an amount to be agreed between the parties in writing or, failing agreement, as assessed. The court also ordered that the costs be paid within sixty days of the date of any such assessment or agreement. The form of the order was subject to the entry of the order in the Court's records.

Orders

Orders of the court

1.

The Application in an Appeal filed 23 February 2017 in respect of Appeal number NA11 of 2017 be dismissed.

2.

The Application in an Appeal filed 23 February 2017 in respect of Appeal number NA12 of 2017 be dismissed.

3.

The applicant husband pay the respondent wife’s costs of and incidental to both Applications in an Appeal in an amount to be agreed between the parties in writing or failing agreement, as assessed.

4.

The costs ordered in (3) be paid within sixty (60) days of the date of any such assessment or agreement.

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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