Saha & Lahiri (No 4) - [2024] FedCFamC1A 82

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Saha & Lahiri (No 4) [2024] FedCFamC1A 82

Appeal from: Lahiri & Saha (No 8) [2023] FedCFamC1F 1000

Appeal number: NAA 346 of 2023

File number: BRC 8518 of 2020

Judgment of: TREE, GILL & HOWARD JJ

Date of judgment: 15 May 2024

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Leave to appeal – Where the wife seeks leave to appeal from enforcement orders requiring her to vacate the former matrimonial home – Where the wife contends the enforcement orders were final – Where contrary to her assertion the orders are interlocutory – Whether the decision is attended by sufficient doubt to warrant appellate intervention – Where all of the wife’s grounds lack merit – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) ss 105, 109A, 117

Federal Circuit and Family Court of Australia Act2021 (Cth) s 28

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 11.56, Sch 3

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02

Cases cited:
Dakin & Sansbury (Costs) [2017] FamCAFC 15

Medlow & Medlow (2016) FLC 93-962; [2016] FamCAFC 34

Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4

Saha & Lahiri (No 3) (2023) FLC 94-158; [2023] FedCFamC1A 144

Number of paragraphs: 66

Date of hearing: 22 March 2024

Place: Heard in Brisbane, delivered in Canberra

The Applicant: Litigant in person

The First Respondent: Litigant in person

Counsel for the Second Respondent: Mr Neggo

Solicitor for the Second Respondent: Stacks Law Firm
ORDERS

NAA 346 of 2023
BRC 8518 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS SAHA

Applicant

AND:
MR LAHIRI

First Respondent

MR FELTOS

Second Respondent

ORDER MADE BY:

TREE, GILL & HOWARD JJ

DATE OF ORDER:

15 MAY 2024

THE COURT ORDERS THAT:
1.Leave to appeal the orders of the Federal Circuit and Family Court of Australia (Division 1) made 22 November 2023 is refused.
2.The Amended Notice of Appeal of 21 March 2024 is dismissed.
3.The applicant is to pay the second respondent’s costs of the appeal, in the sum of $15,911.32 within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by 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 Saha & Lahiri (No 4)

Details

AGLC: Saha & Lahiri (No 4) [2024] FedCFamC1A 82
Case: [2024] FedCFamC1A 82
Decision Date: 15 May 2024

CaseChat Overview and Summary

The case of Saha & Lahiri (No 4) involves an appeal against enforcement orders from the Federal Circuit and Family Court of Australia (Division 1). The applicant, Ms Saha, sought leave to appeal from orders that required her to vacate the former matrimonial home. Ms Saha argued that the enforcement orders were final and that the Court of Appeal should intervene. The first respondent, Mr Lahiri, and the second respondent, Mr Feltos, opposed the application. The Court was tasked with determining whether the appeal was interlocutory in nature and whether the application was attended by sufficient doubt to warrant appellate intervention. Additionally, the Court had to assess the merits of Ms Saha's grounds for appeal.

The primary legal issue before the Court was whether the enforcement orders, which mandated Ms Saha to vacate the former matrimonial home, were final or interlocutory. Ms Saha contended that the orders were final, allowing her to appeal directly to the Court of Appeal. However, the Court found that the orders were interlocutory, meaning that Ms Saha's right to appeal was limited to the Federal Circuit and Family Court of Australia. Furthermore, the Court examined whether the application was accompanied by sufficient doubt to merit appellate intervention. After reviewing the grounds of appeal, the Court concluded that they lacked merit and that there was no substantial doubt warranting intervention. Consequently, the Court found that leave to appeal should be refused.

In the decision, the Court of Appeal ruled that Ms Saha's application for leave to appeal the enforcement orders was without merit. The Court found that the orders were interlocutory and not final, thus limiting Ms Saha's right to appeal. Additionally, the Court determined that none of Ms Saha's grounds for appeal had merit, and there was no substantial doubt to warrant appellate intervention. As a result, leave to appeal was refused, and the appeal was dismissed. The Court ordered Ms Saha to pay the second respondent's costs of the appeal, amounting to $15,911.32 within 28 days. The form of the order is subject to review for minor errors or variations, as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

NAA 346 of 2023

BRC 8518 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SAHA

Applicant

AND:

MR LAHIRI

First Respondent

MR FELTOS

Second Respondent

ORDER MADE BY:

TREE, GILL & HOWARD JJ

DATE OF ORDER:

15 MAY 2024

THE COURT ORDERS THAT:

1. Leave to appeal the orders of the Federal Circuit and Family Court of Australia (Division 1) made 22 November 2023 is refused.

2. The Amended Notice of Appeal of 21 March 2024 is dismissed.

3. The applicant is to pay the second respondent’s costs of the appeal, in the sum of $15,911.32 within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 346 of 2023 BRC 8518 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS SAHA Applicant
AND:	MR LAHIRI First Respondent MR FELTOS Second Respondent

Appeal from:	Lahiri & Saha (No 8) [2023] FedCFamC1F 1000
Appeal number:	NAA 346 of 2023
File number:	BRC 8518 of 2020
Judgment of:	TREE, GILL & HOWARD JJ
Date of judgment:	15 May 2024
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Leave to appeal – Where the wife seeks leave to appeal from enforcement orders requiring her to vacate the former matrimonial home – Where the wife contends the enforcement orders were final – Where contrary to her assertion the orders are interlocutory – Whether the decision is attended by sufficient doubt to warrant appellate intervention – Where all of the wife’s grounds lack merit – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) ss 105, 109A, 117 Federal Circuit and Family Court of Australia Act2021 (Cth) s 28 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 11.56, Sch 3 Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited:	Dakin & Sansbury (Costs) [2017] FamCAFC 15 Medlow & Medlow (2016) FLC 93-962; [2016] FamCAFC 34 Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4 Saha & Lahiri (No 3) (2023) FLC 94-158; [2023] FedCFamC1A 144
Number of paragraphs:	66
Date of hearing:	22 March 2024
Place:	Heard in Brisbane, delivered in Canberra
The Applicant:	Litigant in person
The First Respondent:	Litigant in person
Counsel for the Second Respondent:	Mr Neggo
Solicitor for the Second Respondent:	Stacks Law Firm

ORDER MADE BY:	TREE, GILL & HOWARD JJ
DATE OF ORDER:	15 MAY 2024