Padgett & Padgett (No 2) - [2024] FedCFamC1A 135

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Padgett & Padgett (No 2) [2024] FedCFamC1A 135

Appeal from: Padgett & Padgett [2024] FCWAM 44

Appeal number: NAA 46 of 2024

File number: 3906 of 2018

Judgment of: TREE J

Date of judgment: 12 August 2024

Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Reinstatement – Where the applicant failed to file her appeal book notwithstanding she was already granted an extension of time – Where she advances no satisfactory explanation for the two month delay – Where the appeal enjoys no merit – Where no prejudice can be suffered by the dismissal of an unmeritorious appeal – Application dismissed – Costs ordered in a fixed sum.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.22, 13.44

Cases cited:
Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100

Gallo v Dawson (1990) 93 ALR 47; [1990] HCA 30

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Padgett & Padgett [2024] FedCFamC1A 84

Padgett & Padgett [2024] FCWAM 44

Number of paragraphs: 27

Date of hearing: 12 August 2024

Place: Cairns (via video link)

The Applicant: Litigant in person

Counsel for the Respondent: Mr Raphael

Solicitor for the Respondent: Clement and Co
ORDERS

NAA 46 of 2024
3906 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS PADGETT

Applicant

AND:
MR PADGETT

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

5 AUGUST 2024

ON 5 AUGUST 2024 THE COURT ORDERED THAT:
1.The Application in an Appeal filed 26 July 2024 is dismissed.
2.The applicant pay the respondent’s costs in the sum of $1,760 within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Padgett & Padgett (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:

On 29 January 2024, a Western Australian Family Law Magistrate made orders as follows:
1.The Applicant, [MS PADGETT], pay to the Respondent, [MR PADGETT], by way of costs, the sum of $20,000, with such payment to be made within 6 months.
2.The Form 2 Applications filed on 4 December 2023, 5 December 2023, 7 December 2023 and the Form 2A Response filed on 24 January 2024, be and are hereby dismissed.
3.All subpoenaed documents be returned or destroyed in accordance with the request from the named person.
4. The said proceedings shall otherwise be dismissed.
On 26 February 2024, Ms…

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 Padgett & Padgett (No 2)

Details

AGLC: Padgett & Padgett (No 2) [2024] FedCFamC1A 135
Case: [2024] FedCFamC1A 135
Decision Date: 12 August 2024

CaseChat Overview and Summary

In the matter of Padgett & Padgett (No 2), the applicant sought to reinstate her appeal against certain family law orders. The orders in question were made by a Family Law Magistrate on 29 January 2024 and dismissed interlocutory applications filed by the applicant. The respondent was also ordered to pay the respondent's costs of those applications and of the proceedings concluded on 10 November 2023, fixed in the sum of $20,000. The applicant's appeal was dismissed by the Federal Circuit and Family Court of Australia on 5 August 2024.

The primary legal issue the court had to decide was whether the applicant's appeal should be reinstated. The applicant had failed to file her appeal book despite being granted an extension of time. She did not provide a satisfactory explanation for the two-month delay. The court also had to consider whether the appeal had any merit and whether the dismissal of the unmeritorious appeal would cause any prejudice. The court found that the appeal did not have any merit and that there would be no prejudice if it was dismissed. The court dismissed the application for reinstatement and ordered the applicant to pay the respondent's costs in the sum of $1,760 within 28 days.

The court found that the applicant's failure to file her appeal book was inexcusable, and she did not provide any satisfactory explanation for the delay. The court also found that the appeal had no merit and that there was no prejudice that would result from the dismissal of the unmeritorious appeal. The court dismissed the application for reinstatement and ordered the applicant to pay the respondent's costs in the sum of $1,760 within 28 days. The court's decision was based on the applicant's failure to file her appeal book and the lack of merit in the appeal. The court found that there was no prejudice that would result from the dismissal of the unmeritorious appeal.

Orders

Orders of the court

NAA 46 of 2024

3906 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS PADGETT

Applicant

AND:

MR PADGETT

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

5 AUGUST 2024

ON 5 AUGUST 2024 THE COURT ORDERED THAT:

1. The Application in an Appeal filed 26 July 2024 is dismissed.

2. The applicant pay the respondent’s costs in the sum of $1,760 within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

On 5 August 2024, I heard the applicant’s application for reinstatement, and dismissed it for reasons to be later delivered. These are those reasons.BACKGROUND I gratefully adopt the background recited by O’Brien J in Padgett & Padgett [2024] FedCFamC1A 84 as follows:4After an undefended trial in which [the applicant] did not participate, orders were made by Sutherland CJ on 26 March 2021 finalising the parenting and financial proceedings then on foot. The orders provided for the children of the marriage to live with the Respondent and spend time with [the applicant]. Various specific issues orders were also made in the parenting case. Orders were also made for alteration of the parties’ property interests, including for the Respondent to transfer to [the applicant] his interest in the home in which she continues to reside. [The applicant] was to retain certain properties in Surburb B and City D, and the Respondent was to retain certain other properties in Western Australia.5[The applicant] told me this afternoon that she commenced an Appeal against those orders but subsequently withdrew it.6[The applicant] commenced further parenting proceedings by an application filed on 14 February 2022. Final orders were made on that application on 10 November 2023, providing for the Respondent to have sole parental responsibility, and for the children to live with him and spend time and communicate with [the applicant] in accordance with their wishes.7The orders the subject of the present Appeal were made by a Family Law Magistrate on 29 January 2024. The orders dismissed interlocutory applications filed by [the applicant] on 4 December 2023, 5 December 2023, and 7 December 2023, and ordered [the applicant] to pay the Respondent’s costs of those applications and of the proceedings concluded on 10 November 2023, fixed in the sum of $20,000.8The interlocutory applications just referred to sought a range of orders which are difficult to decipher. Among other things, [the applicant] sought to discharge all orders made by Sutherland CJ on 26 March 2021, 'review' certain of the orders made by the Family Law Magistrate on 10 November 2023, and set aside certain other orders. The applications filed on 4 and 5 December 2023 sought to set aside all orders made on 26 March 2021; but the application filed on 7 December 2023 sought to compel the Respondent to comply with those orders, at least insofar as they related to the parenting proceedings.9To the extent the interlocutory applications purported to seek orders to discharge the property orders made by Sutherland CJ on 26 March 2021, those applications were incompetent It appears that [the applicant] now recognises that, as she foreshadows an application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”).THE PRIMARY MAGISTRATE’S REASONS As to the costs order, in her edited ex tempore reasons (Padgett & Padgett [2024] FCWAM 44), the primary magistrate relevantly said:79.… The mother has not participated properly in the proceedings and, unfortunately, she has caused significant additional and unnecessary costs to be incurred.80.In terms of the father’s costs application, the mother’s conduct persuades me that a costs order in a substantial sum is appropriate. The Court was informed that the father’s total costs of the two tranches of the proceedings dramatically exceeds the itemised bill of costs presented to the Court. The itemised costs at scale are just over $17,000. There has been an additional $3,000 in costs thrown away as a result of the various recent Form 2 Applications which have been misguided. The father’s total costs exceed $20,000.81.In my view, the costs sought reflects only a relatively modest portion of the costs the father has incurred in the entirety of the two sets of proceedings including in the second tranche of the proceedings. I consider it appropriate that the mother understand that she cannot keep filing applications without proper legal merit.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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NAA 46 of 2024 3906 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS PADGETT Applicant
AND:	MR PADGETT Respondent

Appeal from:	Padgett & Padgett [2024] FCWAM 44
Appeal number:	NAA 46 of 2024
File number:	3906 of 2018
Judgment of:	TREE J
Date of judgment:	12 August 2024
Catchwords:	FAMILY LAW – APPEAL – Application in an Appeal – Reinstatement – Where the applicant failed to file her appeal book notwithstanding she was already granted an extension of time – Where she advances no satisfactory explanation for the two month delay – Where the appeal enjoys no merit – Where no prejudice can be suffered by the dismissal of an unmeritorious appeal – Application dismissed – Costs ordered in a fixed sum.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.22, 13.44
Cases cited:	Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100 Gallo v Dawson (1990) 93 ALR 47; [1990] HCA 30 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Padgett & Padgett [2024] FedCFamC1A 84 Padgett & Padgett [2024] FCWAM 44
Number of paragraphs:	27
Date of hearing:	12 August 2024
Place:	Cairns (via video link)
The Applicant:	Litigant in person
Counsel for the Respondent:	Mr Raphael
Solicitor for the Respondent:	Clement and Co

ORDER MADE BY:	TREE J
DATE OF ORDER:	5 AUGUST 2024