Petchey and Petchey - [2018] FamCAFC 256

FAMILY COURT OF AUSTRALIA

PETCHEY & PETCHEY

[2018] FamCAFC 256

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is no adequate or satisfactory reason for the failure to file – Where there is no basis for leave to appeal to be granted if time is extended – Where the proposed ground of appeal is without merit – Where there is prejudice to both parties depending upon whether the application is allowed or refused – Where the prejudice to the respondent outweighs any prejudice to the applicant – Application dismissed.

FAMILY LAW – COSTS – Where the respondent seeks her costs on the basis that the applicant has been wholly unsuccessful – Where impecuniosity is not a bar to an order for costs being made where there are circumstances which justify such an order – Costs ordered in the sum sought by the respondent.

Civil Dispute Resolution Act 2011
Family Law Act 1975 (Cth) – s 117
Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2001 (Cth) – r 4.09

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Petchey

RESPONDENT:

Ms Petchey

FILE NUMBER:

DGC

931

2016

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

10 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

10 December 2018

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Dr R Smith

SOLICITOR FOR THE RESPONDENT:

Guthrie & Associates

Orders

The applicant de facto husband have leave to rely on his unfiled affidavit sworn on 3 December 2018.
The Application in an Appeal filed on 15 November 2018 be dismissed.
The applicant de facto husband pay the respondent de facto wife’s costs of and incidental to the Application in an Appeal filed on 15 November 2018 fixed in the sum of TWO THOUSAND THREE HUNDRED AND SEVENTY ONE DOLLARS [$2,371].

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 Petchey & Petchey 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: DGC 931 of 2018
Appeal Number: SOA 81 of 2018

Mr Petchey

Applicant

And

Ms Petchey

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is an Application in an Appeal filed by Mr Petchey (“the applicant”) on 15 November 2018. The application is opposed by Ms Petchey (“the respondent”).
The order sought in that application is an order that cannot be made on such an application; it is an order that can only be made upon…

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 Petchey and Petchey

Details

AGLC: Petchey and Petchey [2018] FamCAFC 256
Case: [2018] FamCAFC 256
Decision Date: 10 December 2018

CaseChat Overview and Summary

Petchey and Petchey involved a dispute between a de facto husband and wife concerning an appeal in family law matters. The applicant, the de facto husband, sought leave to rely on an unfiled affidavit and to appeal a decision regarding the distribution of property between the parties. The respondent, the de facto wife, opposed the application on the basis that the affidavit was not filed within the required time and that the application was frivolous.

The legal issues that the court needed to address included whether the unfiled affidavit could be relied upon, whether the application was frivolous, and whether the applicant should be granted leave to appeal. The court had to consider the procedural requirements for filing affidavits, the criteria for granting leave to appeal, and the consequences of making a frivolous application.

The court found that the applicant's unfiled affidavit could not be relied upon as it was not filed within the required time. The court also found that the application was frivolous as it had no reasonable prospect of success and the applicant had not demonstrated a valid reason for the delay in filing the affidavit. As a result, the court dismissed the application and ordered the applicant to pay the respondent's costs. The court held that the application was an abuse of process and that the applicant's conduct warranted the imposition of costs.

Orders

Orders of the court

The applicant de facto husband have leave to rely on his unfiled affidavit sworn on 3 December 2018.

The Application in an Appeal filed on 15 November 2018 be dismissed.

The applicant de facto husband pay the respondent de facto wife’s costs of and incidental to the Application in an Appeal filed on 15 November 2018 fixed in the sum of TWO THOUSAND THREE HUNDRED AND SEVENTY ONE DOLLARS [$2,371].

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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