Probert and Probert & Ors

[2019] FamCAFC 67

FAMILY COURT OF AUSTRALIA

PROBERT & PROBERT AND ORS [2019] FamCAFC 67

FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT OF THE APPEAL – Where the husband failed to file appeal books in compliance with procedural orders and his appeal was deemed abandoned – Where there was an adequate explanation proffered for the failure to comply with orders – Where the appeal is devoid of all merit and it would be futile to allow it to proceed – Application dismissed.

FAMILY LAW – CROSS-APPEAL – Where two of the three grounds of appeal were misconceived in that the errors alleged were not in fact errors made by the Magistrate – Where matters raised by the cross-appellants in challenging findings made by the Magistrate were not put to the Magistrate and thus it is not open to raise these matters on appeal – Where the Magistrate took into account the matters complained of by the cross-appellants and no error is demonstrated – Where there is no merit in any of the grounds of appeal – Cross-appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO ADDUCE FURTHER EVIDENCE IN THE CROSS APPEAL – Where it is not demonstrated how the admission of this further evidence would render the orders under appeal “erroneous” or “lead to a different result” – Application dismissed.

FAMILY LAW – COSTS – Where the husband did not seek costs in the event that the cross-appeal was dismissed – No order as to costs.

Family Law Act 1975 (Cth) s 93A(2)
Family Law Rules 2004 (Cth) r 22.44

Batey-Elton & Elton [2009] FamCAFC 101
Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Rand & Rand [2009] FamCAFC 88

APPELLANT/ FIRST CROSS-RESPONDENT: Mr Probert

FIRST RESPONDENT/

SECOND CROSS-RESPONDENT:

Ms Probert

SECOND RESPONDENTS/

CROSS-APPELLANTS:

Ms Turner &
Mr Turner

FILE NUMBER: PTW 872 of 2014

APPEAL NUMBER: WEA 17 of 2018

DATE DELIVERED: 24 April 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Perth

JUDGMENT OF: Strickland, Ainslie‑Wallace &
Austin JJ

HEARING DATE: 27 September 2018

LOWER COURT JURISDICTION: Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE: 29 March 2018

LOWER COURT MNC: [2018] FCWAM 54

REPRESENTATION

THE APPELLANT/FIRST CROSS RESPONDENT: In person

COUNSEL FOR THE FIRST RESPONDENT/SECOND CROSS RESPONDENT: Ms King

SOLICITOR FOR THE FIRST RESPONDENT: Genuine Legal

THE SECOND RESPONDENT/CROSS-APPELLANTS: In person

Orders

Order made on 27 September 2018

1. The Application in an Appeal filed by the appellant/first cross respondent on 4 September 2018 be dismissed.

…

Orders made on 24 April 2019

1. The Application in an Appeal filed by the cross-appellants on 21 May 2018 be dismissed.

2. The cross-appeal be dismissed.

3. There be no order as to costs.

Note: The form of the order is subject to…