Petchey and Petchey (No 2) - [2019] FamCAFC 157

FAMILY COURT OF AUSTRALIA

PETCHEY & PETCHEY (NO. 2)

[2019] FamCAFC 157

FAMILY LAW – APPEAL – PROPERTY – Where only two grounds of appeal are potentially competent – Where there is no merit in either of the grounds of appeal, nor in any of the complaints made by the appellant in his “brief summary of argument” or his “Pre-argument Statement” – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the appellant has been wholly unsuccessful – Costs awarded in favour of the respondent in the sum of $13,108.89.

Family Law Act 1975 (Cth) ss 90SB and 117

Petchey & Petchey [2018] FamCAFC 256
Petchey & Petchey [2019] FamCAFC 48

APPELLANT:

Mr Petchey

RESPONDENT:

Ms Petchey

FILE NUMBER:

DGC

931

2016

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

18 September 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

7 February 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 March 2018

LOWER COURT MNC:

[2018] FCCA 535

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Lane

SOLICITORS FOR THE RESPONDENT:

Guthrie & Associates

Orders

The Application in an Appeal filed on 4 October 2018 be dismissed.
The appellant have leave to rely on his “Pre-argument Statement” dated 6 February 2019.
The respondent have leave to rely on her summary of argument dated 4 February 2019.
The appeal be dismissed.
The appellant pay the costs of the respondent fixed in the sum of THIRTEEN THOUSAND ONE HUNDRED AND EIGHT DOLLARS AND EIGHTY-NINE CENTS [$13,108.89].

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 (No. 2) 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

Appeal Number: SOA 27 of 2018
File Number: DGC 931 of 2016

Mr Petchey

Appellant

And

Ms Petchey

Respondent

REASONS FOR JUDGMENT

Introduction

On 26 October 2018 Mr Petchey (“the appellant”) filed a Further Amended Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal against the final orders for property settlement made by Judge Burchardt on 26 March 2018.
There is of course no need for leave to be given to the appellant to challenge final property settlement orders; he has an appeal as of right.
The appeal is opposed by Ms Petchey (“the respondent”).
At [1] – [88] his Honour, in order to establish his jurisdiction to make a property settlement order, addressed whether the…

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 (No 2)

Details

AGLC: Petchey and Petchey (No 2) [2019] FamCAFC 157
Case: [2019] FamCAFC 157
Decision Date: 18 September 2019

CaseChat Overview and Summary

The parties to the appeal were Petchey (the appellant) and Petchey (the respondent). The appeal arose from an earlier decision concerning property division, with the current appeal focusing on whether the trial judge made certain errors in his findings and conclusions. The appeal was heard by the Family Court of Australia.

The legal issues before the court were whether the appeal was valid and, if so, whether any of the grounds for appeal had merit. Specifically, the court had to determine if there were any errors in the primary judge’s findings and conclusions. The appellant argued that there were significant errors made by the primary judge, particularly in the assessment of property. However, the court found no merit in any of the grounds of appeal nor in the complaints made by the appellant in his "brief summary of argument" or his "Pre-argument Statement".

The court dismissed the appeal outright. It found that only two grounds of appeal were potentially competent, but neither had any merit. The appellant had not successfully demonstrated any error on the part of the primary judge. Given the appellant's complete lack of success on all grounds, the court awarded costs in favour of the respondent in the sum of $13,108.89. The court noted that the appellant had been wholly unsuccessful and thus was liable to pay the respondent's costs.

The court made several orders to formalise its decision. It dismissed the appeal, granted leave to the parties to rely on their respective summaries of argument, and ordered the appellant to pay the respondent’s costs in the sum of $13,108.89. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Application in an Appeal filed on 4 October 2018 be dismissed.

The appellant have leave to rely on his “Pre-argument Statement” dated 6 February 2019.

The respondent have leave to rely on her summary of argument dated 4 February 2019.

The appeal be dismissed.

The appellant pay the costs of the respondent fixed in the sum of THIRTEEN THOUSAND ONE HUNDRED AND EIGHT DOLLARS AND EIGHTY-NINE CENTS [$13,108.89].

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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