PETCHEY & PETCHEY - [2019] FamCAFC 48

FAMILY COURT OF AUSTRALIA

PETCHEY & PETCHEY

[2019] FamCAFC 48

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no basis for leave to appeal to be granted if time to appeal is extended – Where the proposed grounds of appeal are without merit – Where the prejudice to the respondent outweighs any prejudice to the applicant – Application dismissed.

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

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479
Petchey & Petchey [2018] FamCAFC 256

APPLICANT:

Mr Petchey

RESPONDENT:

Ms Petchey

FILE NUMBER:

DGC

931

2016

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

20 March 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

20 March 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 June 2016

LOWER COURT MNC:

NA Transcript only

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Bastick

SOLICITORS FOR THE RESPONDENT:

Guthrie & Associates

Orders

The application in an appeal filed on 21 December 2018 be dismissed.
The applicant pay the costs of the respondent of an incidental to the appeal fixed in the sum of TWO THOUSAND FIVE HUNDRED AND THIRTY ONE DOLLARS AND NINETY FOUR CENTS [$2,531.94].

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

Appeal Number: SOA99 of 2018
File Number: DGC 931 of 2016

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 21 December 2018. The application is opposed by Ms Petchey (“the respondent”).
The order sought in the application is in effect an extension of time to file a Notice of Appeal against orders made by Judge Phipps on 23 June 2016.
In the application it is said that the applicant is “[s]eeking further orders as set out in the draft notice of appeal attached.” I do not know to what that is referring, save and…

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 & PETCHEY

Details

AGLC: PETCHEY & PETCHEY [2019] FamCAFC 48
Case: [2019] FamCAFC 48
Decision Date: 20 March 2019

CaseChat Overview and Summary

Petchey & Petchey involved an application in an appeal within the realm of family law. The applicant sought an extension of time to appeal against a decision, while the respondent opposed the extension on various grounds. The court was tasked with determining whether the application for an extension of time should be granted, considering the merits of the proposed grounds of appeal and the respective prejudices to both parties.

The legal issues before the court included whether there was any basis for granting leave to appeal if the time to appeal were extended and whether the proposed grounds of appeal were without merit. Additionally, the court had to assess the relative prejudice to each party if the extension was granted. The applicant argued that the extension was necessary due to various factors, while the respondent contended that granting the extension would cause significant prejudice and that the proposed grounds of appeal lacked merit.

In its reasoning, the court found that the proposed grounds of appeal were without merit and that the prejudice to the respondent would significantly outweigh any prejudice to the applicant if the extension were granted. Consequently, the application for an extension of time was dismissed. The court also ordered the applicant to pay the respondent’s costs associated with the appeal, amounting to $2,531.94, noting that the applicant had been wholly unsuccessful and that the respondent’s impecuniosity did not preclude the order for costs in the circumstances.

The court’s final orders were to dismiss the application in an appeal and to direct the applicant to pay the respondent’s costs in the specified amount. This decision underscores the importance of the merits of the proposed grounds of appeal and the balance of prejudice in determining applications for extensions of time in family law matters.

Orders

Orders of the court

The application in an appeal filed on 21 December 2018 be dismissed.

The applicant pay the costs of the respondent of an incidental to the appeal fixed in the sum of TWO THOUSAND FIVE HUNDRED AND THIRTY ONE DOLLARS AND NINETY FOUR CENTS [$2,531.94].

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.