PETERS & ORTONA - [2016] FamCAFC 94

FAMILY COURT OF AUSTRALIA

PETERS & ORTONA

[2016] FamCAFC 94

FAMILY LAW – APPEAL – CHILDREN AND PROPERTY – Appeal dismissed – Order for the appellant to pay the respondent’s costs.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Applicable principles – Eight applications dismissed.

Family Law Act 1975 (Cth) – s 93A(2), s 94AAA(7), s 98AB(1), s 117

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
CDJ v VAJ (1998) 197 CLR 172
Lenova & Lenova(Costs) [2011] FamCAFC 141

APPELLANT:

Ms Peters

RESPONDENT:

Mr Ortona

FILE NUMBER:

MLC

8590

2012

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

10 June 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thackray, Ryan & Austin JJ

HEARING DATE:

10 May 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 February 2015

LOWER COURT MNC:

[2015] FamCA 99

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

Orders

The applications in an appeal be dismissed.
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 20 of 2015
File Number: MLC 8590 of 2012

Ms Peters

Appellant

And

Mr Ortona

Respondent

REASONS FOR JUDGMENT

Ms Peters (“the mother”) appeals against orders made by Thornton J on 26 February 2015. The appeal is opposed by Mr Ortona (“the father”). An Independent Children’s Lawyer was appointed at first instance but did not participate in the appeal.
The parenting orders provided for the parties’ children to live with the father and to spend time with the mother. The property orders provided for the division of the parties’ assets and superannuation worth about $680,000.

The appeal

The Notice of Appeal was filed in March 2015. At the hearing, the mother sought leave to rely on 10 grounds of appeal in an Amended Notice filed in April 2016. For reasons we gave at the time, the mother was allowed to rely on all of the grounds, save for Grounds 7, 8 and 9.
The appeal was conducted without the benefit of a trial transcript. The mother advised us that a transcript was unnecessary for the purposes of her appeal. There is a strong presumption in favour of the correctness of the decision appealed from: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621. The absence of a transcript could not be permitted to undermine the strength of the presumption and necessarily adds a layer of complexity for an appellant who attempts to challenge a discretionary judgment based on events that ostensibly occurred during the trial.

The applications to introduce further evidence

The mother filed…

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 PETERS & ORTONA

Details

AGLC: PETERS & ORTONA [2016] FamCAFC 94
Case: [2016] FamCAFC 94
Decision Date: 10 June 2016

CaseChat Overview and Summary

In the case of Peters & Ortona, the appeal arose from a family law decision concerning the division of property following a separation. The parties were a former couple, and the central dispute revolved around the division of their property, specifically whether certain assets should have been included in the property pool. This matter was brought before the court for appeal, where the appellant challenged the original decision.

The legal issues before the court were multifaceted. The primary issue was whether the appeal itself should be upheld, and if not, whether the original decision regarding the division of property was correct. Additionally, the court had to consider eight applications by the appellant to adduce further evidence, which would alter the evidence presented at the initial hearing.

The court found that the appeal was without merit, affirming the original decision. The reasoning included that the evidence presented at the initial hearing was sufficient and that the decisions made were within the legal framework. Furthermore, the court dismissed all eight applications to adduce further evidence, holding that these applications did not meet the criteria for admitting new evidence. Consequently, the appeal was dismissed, and the original decision stood. The appellant was ordered to pay the respondent's costs of the appeal, as agreed or assessed if an agreement could not be reached.

Orders

Orders of the court

The applications in an appeal be dismissed.

The appeal be dismissed.

The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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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