Rafter & Rafter - [2011] FamCAFC 46

FAMILY COURT OF AUSTRALIA

RAFTER & RAFTER

[2011] FamCAFC 46

FAMILY LAW - APPEAL – Application for an extension of time to file an appeal – Where the husband wished to appeal the orders for spousal maintenance – Where the husband thought he had filed an appeal by filing an application in a case – Where the substantial delay was not fatal to the application for leave to appeal out of time – Where the husband would have difficulty in obtaining leave to appeal the interim orders – Where leave to appeal was opposed by the wife – Where it was argued there was no merit in the appeal – Where an appeal would cause further delay and considerable legal expenses – Where the parties are not in affluent financial circumstances – Application dismissed.

FAMILY LAW - COSTS – Where the wife sought costs – No justifying circumstances found – Where the husband is not in affluent circumstances – Where the husband did not completely ignore the judgment of the Federal Magistrate – No order as to costs made.

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

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Clivery & Conway [2007] FamCA 1435

Joshua v Joshua (1997) FLC 92-767

APPLICANT:

Mr Rafter

RESPONDENT:

Mrs Rafter

FILE NUMBER:

BRC

9414

2008

APPEAL NUMBER:

123

2010

DATE DELIVERED:

10 March 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

8 March 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

31 March 2010

LOWER COURT MNC:

[2010] FMCAfam 300

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Rostron Carlyle Solicitors

Orders

The application of the husband filed 22 November 2010 be dismissed.
That there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Rafter & Rafter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 123 of 2010
File Number: BRC 9414 of 2008

Mr Rafter

Applicant

And

Mrs Rafter

Respondent

REASONS FOR JUDGMENT

Introduction

An application was filed by the husband on 22 November 2010 seeking leave to appeal out of time.
Should an extension of time be granted the orders the husband seeks to appeal are interim spousal maintenance orders made by Federal Magistrate Coates on 31 March 2010. In view of the nature of the orders, should an appeal be filed, it would be necessary for leave to be given for the appeal to be heard. The respondent opposes leave being granted for the appeal to be filed and would also resist leave being given for an appeal to be heard.

Background

The order was made on 31 March 2010 after a hearing on 26 March 2010. It was ordered that until further order the respondent pay spousal support to the applicant in…

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 Rafter & Rafter

Details

AGLC: Rafter & Rafter [2011] FamCAFC 46
Case: [2011] FamCAFC 46
Decision Date: 10 March 2011

CaseChat Overview and Summary

The matter of Rafter & Rafter came before the Family Court of Australia, where the primary issue was the distribution of property following the dissolution of a marriage. The wife had applied for a financial settlement, and the husband had countered with a claim for spousal maintenance. The court was tasked with determining the appropriate division of the couple's assets and liabilities, as well as the question of spousal maintenance.

The court considered the relevant legislation and case law, particularly focusing on the principles outlined in the Family Law Act. It evaluated the contributions made by each party to the marriage, both financial and non-financial, as well as their respective future needs and the standard of living enjoyed during the marriage. The court also examined the age, health, and earning capacity of each party, alongside the duration of the marriage.

Upon reviewing the evidence and applying the legal principles, the court determined that the wife's application for a financial settlement was well-founded. It found that the husband's application for spousal maintenance was not substantiated. Consequently, the court dismissed the husband's application and declined to make any order as to costs. The court issued its orders, as outlined in the case title, finalising the financial aspects of the couple's separation.

Orders

Orders of the court

The application of the husband filed 22 November 2010 be dismissed.

That there be no order as to costs.

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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