PENCIOUS & SEARLE - [2015] FamCAFC 2

FAMILY COURT OF AUSTRALIA

PENCIOUS & SEARLE

[2015] FamCAFC 2

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant seeks to reinstate the appeal previously filed against orders made by Cronin J on 28 February 2012 – Where that appeal was deemed abandoned pursuant to r 22.21 of the Family Law Rules 2004 (Cth) – Where the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties – Where the applicant provides no explanation of the failure to comply with the order for the filing of the appeal books and no plausible explanation for the delay in filing an application until 21 March 2014 – Where the Notice of Appeal is deficient namely, the applicant failed to apply for leave to appeal and there is no proper ground of appeal – Where the application lacks bona fides – Where there is an obvious prejudice to the respondent in granting the application – Where the interests of justice demand that the application be refused – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – COSTS – Where in the event that either party seeks costs r 22.53 of the Family Law Rules 2004 (Cth) applies.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) – r 22.21, r 22.44 and r 22.53

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Batey-Elton & Elton [2009] FamCAFC 101
Bemert & Swallow (2010) FLC 93-441
CDJ v VAJ (1998) 197 CLR 172
Gallo v Dawson (1990) 93 ALR 479
McMillan and McMillan (2000) FLC 93-048
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Mr Pencious

RESPONDENT:

Ms Searle (formerly Pencious)

FILE NUMBER:

MLC

11069

2008

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

13 January 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

7 May 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 February 2012

LOWER COURT MNC:

[2012] FamCA 74

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rattray

SOLICITOR FOR THE APPLICANT:

Altona Legal

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Adrian Abrahams Family Law

Order

The application in an appeal filed on 21 March 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pencious & Searle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 24 of 2012
File Number: MLC 11069 of 2008

Mr Pencious

Applicant

And

Ms Searle (formerly Pencious)

Respondent

REASONS FOR JUDGMENT

Introduction

The application before the court is the application in an appeal filed by

Mr Pencious (“the husband”) on 21 March 2014. In that application three orders were sought, but I note that the application was not received in relation to the second…

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 PENCIOUS & SEARLE

Details

AGLC: PENCIOUS & SEARLE [2015] FamCAFC 2
Case: [2015] FamCAFC 2
Decision Date: 13 January 2015

CaseChat Overview and Summary

In the case of Pencious & Searle, the applicant sought to reinstate an appeal against orders made by Cronin J on 28 February 2012. The appeal was deemed abandoned under rule 22.21 of the Family Law Rules 2004 (Cth), and the fundamental issue before the court was whether reinstatement was necessary to achieve justice between the parties. The applicant's failure to provide an explanation for not complying with the order for filing the appeal books, coupled with the lack of a plausible reason for the significant delay in filing the application, further complicated the matter. Additionally, the Notice of Appeal was deficient as the applicant did not seek leave to appeal and failed to present any proper grounds for appeal, casting doubt on the application's bona fides.

The court meticulously evaluated the application, considering the prejudice to the respondent and the broader interests of justice. Given the absence of a compelling explanation for the procedural failures and the significant delay in filing the application, the court found that the applicant's request lacked merit. The court was also mindful of the potential prejudice to the respondent if the application were to be granted. Ultimately, the court concluded that justice would not be served by reinstating the appeal, and the application was dismissed.

The court's decision was unequivocal in its refusal to reinstate the appeal, highlighting the procedural shortcomings and the lack of justification provided by the applicant. In light of the dismissal, the court noted that if either party were to seek costs, the provisions of rule 22.53 of the Family Law Rules 2004 (Cth) would apply. The orders of the court were clear, with the appeal remaining dismissed and no reinstatement granted to the applicant.

Orders