Pasello and Pasello - [2020] FamCAFC 89

FAMILY COURT OF AUSTRALIA

PASELLO & PASELLO

[2020] FamCAFC 89

FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file a Notice of Appeal – Where the primary judge made consent orders on 9 September 2019, which the husband says were not actually made until 19 November 2019 – Where the husband is mistaken in his belief – Where there is no adequate explanation for the delay – Where r 16.02 and r 16.07 of the Federal Circuit Court Rules 2001 (Cth) discussed – Application dismissed – Order that the husband pay the wife’s costs of the application.

Family Law Rules 2004 (Cth) rr 1.14, 10.15, 17.01, 17.01A, 22.03
Federal Circuit Court Rules 2001 (Cth) rr 13.04, 16.02, 16.07

E I Du Pont de Nemours & Co v Commissioner of Patents (1987) 16 FCR 423
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPLICANT:

Mr Pasello

RESPONDENT:

Ms Pasello

FILE NUMBER:

BRC

6124

2019

APPEAL NUMBER:

NOA

115

2019

DATE DELIVERED:

21 April 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

25 March 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT ORDERS DATE:

9 September 2019

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Turnbull Mylne

Orders

The husband’s Application in an Appeal filed 13 December 2019 is dismissed.
The husband pay the wife’s costs of and incidental to his Application in an Appeal filed 13 December 2019 within twenty-eight (28) days of the costs being assessed.

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 Pasello & Pasello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS

Appeal Number: NOA 115 of 2019
File Number: BRC 6124 of 2019

Mr Pasello

Applicant

And

Ms Pasello

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 9 September 2019, the primary judge, seemingly in the course of a duty day in which this matter was listed, pronounced some interim consent orders in relation to both the parenting and the property aspects of the parties’ litigation.
No appeal from those orders was brought within the time limited for its institution. Now by Application in an Appeal filed 13 December 2019, Mr Pasello (“the husband”) seeks to extend the time for him to lodge an appeal from the consent orders. For her part, Ms Pasello (“the wife”) opposes the application.
On 25 March 2020 I heard the Application in an Appeal and reserved my decision. For the reasons which…

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 Pasello and Pasello

Details

AGLC: Pasello and Pasello [2020] FamCAFC 89
Case: [2020] FamCAFC 89
Decision Date: 21 April 2020

CaseChat Overview and Summary

The case of Pasello and Pasello was heard in the Family Court of Australia. The husband filed an appeal against a decision made by the court regarding a property settlement. The wife contested the appeal, arguing that the husband had failed to demonstrate any grounds for reconsideration. The court was tasked with determining whether the husband's appeal had merit and whether the original decision should be upheld.

The primary legal issue before the court was whether the husband's appeal provided sufficient grounds for the court to reconsider its original decision. The court needed to examine the evidence presented in the appeal and assess whether there were any errors in the original decision that warranted a change in the property settlement. The wife argued that the husband had not provided any new evidence or legal arguments that would support a different outcome.

The court found that the husband's appeal did not provide sufficient grounds for reconsideration of the original decision. The evidence presented did not reveal any errors in the original decision, and the husband had not demonstrated any new or compelling reasons for the court to change its position. The court concluded that the original decision was correct and should stand. As a result, the husband's appeal was dismissed, and he was ordered to pay the wife's costs associated with the appeal.

Orders

Orders of the court

The husband’s Application in an Appeal filed 13 December 2019 is dismissed.

The husband pay the wife’s costs of and incidental to his Application in an Appeal filed 13 December 2019 within twenty-eight (28) days of the costs being assessed.

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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