REDDINGTON & PONTOW - [2018] FamCAFC 33

FAMILY COURT OF AUSTRALIA

REDDINGTON & PONTOW

[2018] FamCAFC 33

FAMILY LAW – LEAVE TO APPEAL – where the primary judge dismissed an application pursuant to s 44(6) – where leave to appeal is required – where the grounds contain arguable errors of principle by the primary judge – where the husband contended that the property was “so small” that no substantial injustice could occur – where the value of the parties’ property was not agreed, nor was it the subject of findings – where refusing leave would result in substantial injustice to the wife – application for leave to appeal allowed – costs reserved to the Full Court.

Family Law Act 1975 (Cth) ss 44(3), 44(6)

Carlon and Carlon (1982) FLC 91-272

Emamy and Marino (1994) FLC 92-487
Slocomb & Hedgewood (2015) FLC 93-678
Taffa & Taffa [2014] FamCAFC 106
Thallon and Thallon (1992) FLC 92-322
Warren v Coombes (1979) 142 CLR 53

APPLICANT:

Ms Reddington

RESPONDENT:

Mr Pontow

FILE NUMBER:

BRC

2068

2017

APPEAL NUMBER:

NOA

2017

DATE DELIVERED:

8 February 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ainslie‑Wallace and
Murphy JJ

HEARING DATE:

8 February 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 August 2017

LOWER COURT MNC:

[2017] FCCA 2293

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Ryan, Ryan Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Kingston, Norman & Kingston

Orders

The applicant have leave to appeal the order made by Judge Vasta on 4 August 2017.
The matter be referred to the Appeals Registrar for directions as to the preparation for, and the hearing of, the appeal.
The costs of today be reserved to the Full Court on the hearing of the appeal.

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 Reddington & Pontow 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 44 of 2017
File Number: BRC 2068 of 2017

Ms Reddington

Applicant

And

Mr Pontow

Respondent

EX TEMPORE

REASONS FOR JUDGMENT[1]

MURPHY J

[1]As was stated would occur when this judgment was delivered orally, citations quotations and the like referred to during oral delivery of these reasons have been added to the settled reasons.

On 4 August 2017, Judge Vasta dismissed an application for leave to institute proceedings pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”). The applicant seeks leave to appeal that decision. That application is heard discretely by us this…

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 REDDINGTON & PONTOW

Details

AGLC: REDDINGTON & PONTOW [2018] FamCAFC 33
Case: [2018] FamCAFC 33
Decision Date: 8 February 2018

CaseChat Overview and Summary

The applicant, Reddington, sought leave to appeal a decision by Judge Vasta dismissing an application for leave to appeal under section 44(6). The primary dispute arose from a family law matter, focusing on property division. The Full Court of the Family Court of Australia was tasked with determining whether the applicant should be granted leave to appeal. The court was required to decide whether the grounds of appeal contained arguable errors of principle by the primary judge and whether the refusal of leave would result in substantial injustice to the wife.

In examining the grounds of appeal, the Full Court noted that the husband contended the property was "so small" that no substantial injustice could occur if leave to appeal was refused. However, the court observed that the value of the parties’ property was neither agreed upon by the parties nor the subject of any findings by the primary judge. Given this uncertainty, the Full Court considered whether the refusal of leave would result in substantial injustice to the wife. The Full Court determined that the grounds of appeal contained arguable errors of principle and that refusing leave would indeed result in substantial injustice to the wife.

Accordingly, the Full Court allowed the applicant leave to appeal the order made by Judge Vasta on 4 August 2017. The matter was referred to the Appeals Registrar for directions regarding the preparation for, and the hearing of, the appeal. The costs of the application for leave to appeal were reserved to the Full Court for determination on the hearing of the appeal. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The applicant have leave to appeal the order made by Judge Vasta on 4 August 2017.

The matter be referred to the Appeals Registrar for directions as to the preparation for, and the hearing of, the appeal.

The costs of today be reserved to the Full Court on the hearing of the appeal.

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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