Robeck & Robeck - [2018] FamCAFC 201

FAMILY COURT OF AUSTRALIA

ROBECK & ROBECK

[2018] FamCAFC 201

FAMILY LAW – APPEAL – PROCEDURAL – Where there is some confusion as to whether or not the appeal was discontinued – Where the appeal is against orders made for the filing of documents in relation to the issue of transferring the proceedings to the Family Court of Australia at Melbourne – Where the facts in support of leave to appeal and the grounds relied upon should leave be granted are incomprehensible – Where the orders appealed are not decrees within the definition of a decree in s 4(1) of the Family Law Act 1975 (Cth) and cannot be appealed – Where the appeal is incompetent – Appeal dismissed.

FAMILY LAW – APPEAL – TRANSFER OF PROCEEDINGS – Where leave to appeal has not been sought but is necessary – Where the grounds of appeal and the summary of argument are incomprehensible – Where there is no doubt that the Family Court of Australia has jurisdiction to hear and determine an application for a declaration of nullity – Where the appeal is incompetent and has no reasonable prospect of success – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs on the basis that the two appeals are to be dismissed – Where the appellant opposes any costs order – Where there are circumstances justifying an order for costs – Where the conduct of the appellant deserves condemnation – Where the costs proposed by the respondent are reasonably modest – Where the appellant in opposing the application for costs did not contend that his financial circumstances precluded or inhibited his ability to meet a costs order – Costs ordered in the sum as sought by the respondent.

Family Law Act 1975 (Cth) ss 4(1), 94AAA(1), 96AA, 117(2) and 117(2A)(c)
Family Law Rules (2004) (Cth) rr 11.17 and 11.18

Commonwealth v Mullane (1961) 106 CLR 166
Tallant & Kelsey (2016) FLC 93-742
Williams v Spautz (1992) 174 CLR 509

APPELLANT:

Mr Robeck

RESPONDENT:

Ms Robeck

FILE NUMBER:

PTW

7443

2017

APPEAL NUMBERS:	WEA	18	of	2018
WEA	23	of	2018

DATE DELIVERED:

28 September 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland, Austin & Sutherland JJ

HEARING DATE:

28 September 2018

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

3 April 2018

25 June 2018

LOWER COURT MNC:

NA – Transcript of hearing
[2018] FCWA 126

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Hedges

SOLICITOR FOR THE RESPONDENT:

Zervos Lawyers

orders

Appeal number WEA 18 of 2018 be dismissed.
Appeal number WEA 23 of 2018 be dismissed.
The appellant husband pay the costs of the respondent wife fixed in the sum of nine thousand seven hundred and twenty seven dollars [$9727.00].

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 Robeck &…

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.

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Details

AGLC: Robeck & Robeck [2018] FamCAFC 201
Case: [2018] FamCAFC 201
Decision Date: 28 September 2018

CaseChat Overview and Summary

The appeal before the court was from Robeck, the appellant, against orders made by the Family Court of Australia. The orders in question related to the filing of documents and the transfer of proceedings to the Family Court of Australia at Melbourne. The respondent, Robeck, sought to dismiss the appeal and requested costs due to the appellant's conduct. The appeal raised questions about whether it was properly discontinued, the sufficiency of the grounds for appeal, and the competency of the appeal itself.

The primary legal issues addressed by the court were whether the appeal was properly discontinued, if the appeal was competent given the nature of the orders, and whether the grounds for appeal were comprehensible. The court found that the appeal was not properly discontinued and was incompetent because the orders in question were not decrees within the definition of a decree in section 4(1) of the Family Law Act 1975 (Cth) and thus not appealable. Additionally, the grounds for appeal were found to be incomprehensible, leading to the conclusion that the appeal had no reasonable prospect of success.

In light of these findings, the court dismissed the appeal as incompetent. The court also considered the respondent's application for costs, noting the appellant's conduct that warranted condemnation and the modest nature of the costs proposed. Despite the appellant's opposition to any costs order, the court found sufficient justification to order costs in the sum sought by the respondent.

The court's final orders were that the appeals were dismissed, and costs were awarded to the respondent in the amount of $2,500.

Orders