Nettler and Nettler - [2008] FamCAFC 141

FAMILY COURT OF AUSTRALIA

NETTLER & NETTLER

[2008] FamCAFC 141

FAMILY LAW - APPLICATION FOR REINSTATEMENT OF APPEAL – Where appeal deemed abandoned – Where mistake as to filing date made by solicitor – Appeal reinstated.

Family Law Act 1975 (Cth) – s 75(2), s 94(2D), s 94(2F), s 117
Family Law Rules 2004 (Cth) – r 1.04, r 22.56, r 22.57, ch 19

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Mackey and Mackey [2007] HCATrans 271 (28 May 2007)

APPLICANT:

Ms Nettler

RESPONDENT:

Mr Nettler

FILE NUMBER:

PAF

1206

2005

APPEAL NUMBER:

151

2007

DATE DELIVERED:

31 July 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

31 July 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 November 2007

LOWER COURT MNC:

[2007] FamCA 1374

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Aitken Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Judge

SOLICITOR FOR THE RESPONDENT:

Goldrick Farrell Mullan

Orders

That the Notice of Appeal filed 18 December 2007 is reinstated.
That the orders made by Registrar Halbert on 28 February 2008 be varied as follows:
(a)That Order 3 be varied by deleting where appearing therein the date “24 April 2008” and substituting in lieu “21 August 2008”.
(b)That Order 4 be varied by deleting where appearing therein the date “24 April 2008” and substituting in lieu “21 August 2008”.
(c)That Order 5 be varied by deleting where appearing therein the date “22 May 2008” and substituting in lieu “2 October 2008”.
That the wife pay the husband’s costs of and incidental to this application as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
The Court notes the undertaking of the wife’s solicitor not to charge the wife professional costs associated with the filing and hearing of the application for reinstatement.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 151 of 2007
File Number: PAF 1206 of 2005

Ms Nettler

Applicant

And

Mr Nettler

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

On 18 December 2007 Ms Nettler (“the wife”) filed a Notice of Appeal against orders made by Coleman J on 23 November 2007. The orders were made at the conclusion of defended property proceedings between the wife and Mr Nettler (“the husband”).
On 28 February 2008 the Appeal Registrar, Registrar Halbert, made procedural orders for the conduct of the appeal. The orders made included an order that the appeal books be filed on or before 24 April 2008. There was no compliance with this order and on 27 May 2008 the Appeal Registrar wrote to the parties’ lawyers advising, as a result of non compliance…

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 Nettler and Nettler

Details

AGLC: Nettler and Nettler [2008] FamCAFC 141
Case: [2008] FamCAFC 141
Decision Date: 31 July 2008

CaseChat Overview and Summary

The parties involved in the case are Nettler (the husband) and Nettler (the wife), who were married and are now divorced. The dispute pertains to an appeal that was lodged on 18 December 2007, which was subsequently dismissed by the court. The husband sought to reinstate the appeal and make adjustments to certain dates and orders associated with the appeal process. The case was heard by the Family Court of Australia.

The central legal issues the court needed to address included the reinstatement of the husband's appeal and the modification of specific orders that were initially set for certain dates. The court needed to determine whether the appeal could be reinstated, and if so, whether the dates for certain proceedings should be altered. The court also had to consider the costs associated with the application for reinstatement, including whether the wife should be liable for the husband's costs and whether the wife's solicitor should be allowed to charge the wife for professional costs.

The court ruled in favour of reinstating the appeal and modifying certain dates and orders. It found that the appeal should be reinstated because the dismissal was unjust. The court varied the dates for specific orders to provide the parties with adequate time to prepare for the proceedings. The court also ordered that the wife pay the husband's costs of the application, with the option to assess these costs under the Family Law Rules 2004 if the parties could not agree on the amount. Additionally, the court acknowledged the wife's solicitor's undertaking not to charge the wife for professional costs related to the filing and hearing of the application.

The final orders of the court included the reinstatement of the Notice of Appeal, the variation of specific orders to change certain dates, the imposition of the husband's costs on the wife, and the acknowledgment of the wife's solicitor's undertaking regarding professional costs.

Orders

Orders of the court

That the Notice of Appeal filed 18 December 2007 is reinstated.

That the orders made by Registrar Halbert on 28 February 2008 be varied as follows:

(a) That Order 3 be varied by deleting where appearing therein the date “24 April 2008” and substituting in lieu “21 August 2008”.

(b) That Order 4 be varied by deleting where appearing therein the date “24 April 2008” and substituting in lieu “21 August 2008”.

(c) That Order 5 be varied by deleting where appearing therein the date “22 May 2008” and substituting in lieu “2 October 2008”.

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

The Court notes the undertaking of the wife’s solicitor not to charge the wife professional costs associated with the filing and hearing of the application for reinstatement.

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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