Radel and Radel - [2020] FamCAFC 105

FAMILY COURT OF AUSTRALIA

RADEL & RADEL

[2020] FamCAFC 105

FAMILY LAW – APPLICATON IN AN APPEAL – Application to extend time to file a Notice of Appeal – Where the husband has repeatedly failed to engage in proceedings – Where there is no reasonable explanation for the delay – Where the appeal is wholly without merit – Application dismissed – Order for the husband to pay the wife’s costs.

Family Law Act 1975 (Cth) s 79

Family Law Rules 2004 (Cth) r 1.14

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPLICANT:

Mr Radel

RESPONDENT:

Ms Radel

FILE NUMBER:

BRC

1099

2010

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

1 May 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

25 March 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 December 2019

LOWER COURT MNC:

[2019] FCCA 3115

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Hackett

SOLICITOR FOR THE RESPONDENT:

Biggs Fitzgerald Pike

Orders

The husband’s Application in an Appeal filed 9 January 2020 is dismissed.
The husband pay the wife’s costs in the sum of $8,836.59 within twenty-eight (28) days of these orders.

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 Radel & Radel 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 JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS

Appeal Number: NOA 5 of 2020
File Number: BRC 1099 of 2010

Mr Radel

Applicant

And

Ms Radel

Respondent

REASONS FOR JUDGMENT

Introduction

On 9 December 2019, the primary judge made final orders effecting a property settlement between the parties. Mr Radel (“the husband”) did not appeal from that decision within the 28 days in which he could do so as of right. Now, by Application in an Appeal filed 9 January 2020, he seeks an extension of time in which to bring such an appeal. That application is opposed by Ms Radel (“the wife”). For the reasons which follow, the application must be dismissed.

BACKGROUND

The parties commenced cohabitation in September 1989, and separated on a final basis in February 2018. Their relationship therefore lasted something in the order of 28 years. There were two, now adult, children born to the relationship.
As at the time of the hearing before the primary judge, the wife was 58 years of age and the husband 61. It was not clear whether the husband was then in employment, although the wife had then been out of the workforce…

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 Radel and Radel

Details

AGLC: Radel and Radel [2020] FamCAFC 105
Case: [2020] FamCAFC 105
Decision Date: 1 May 2020

CaseChat Overview and Summary

The case of Radel and Radel involved a husband and wife who were in dispute over the allocation of assets following their separation. The matter was heard in the Family Court of Australia, where the wife had filed a Financial Application and the husband subsequently filed an appeal. The husband sought to contest the orders made by the primary judge regarding the distribution of the couple's assets. The central issue before the court was whether the appeal should be upheld, and if not, whether costs should be awarded against the husband.

The court examined the nature of the husband's appeal, focusing on whether there were any errors in the primary judge's decision that warranted a reconsideration of the asset distribution. The court found that the appeal did not identify any such errors and that the primary judge's reasoning was sound. The husband's arguments were largely based on dissatisfaction with the outcome rather than on legal errors or misapplications of the law. The court held that the appeal was not well-founded and therefore dismissed it. Given the lack of merit in the appeal, the court considered it appropriate to award costs to the wife for the unnecessary burden placed on her by the husband's appeal.

In conclusion, the court dismissed the husband's appeal and ordered him to pay the wife's costs. The specific amount of costs, totalling $8,836.59, was to be paid within twenty-eight days from the date of the orders. The form of the orders was subject to final entry in the court's records.

Orders

Orders of the court

The husband’s Application in an Appeal filed 9 January 2020 is dismissed.

The husband pay the wife’s costs in the sum of $8,836.59 within twenty-eight (28) days of these orders.

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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