SITWELL & SITWELL - [2013] FamCAFC 54

FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL

[2013] FamCAFC 54

FAMILY LAW ─ APPEAL ─ ADJOURNMENT ─ Where the appellant had on previous occasions been granted an adjournment to enable him to obtain legal representation and had failed to do so ─Application dismissed.

FAMILY LAW ─ APPEAL ─ Appeal against the refusal of the trial Judge to stay orders ─ Where there were no prospects of success of the appeal ─ Where there was no evidence that the appellant could prosecute his appeal in a timely fashion ─ Where there was delay and prejudice to the respondent ─Appeal dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal against the refusal of the trial Judge to stay orders was wholly unsuccessful ─ Appellant ordered to pay the respondent’s costs of and incidental to the said appeal.

Family Law Act 1975 (Cth): ss 79, 79A

Eure & Tidwell (1995) FLC 92-622
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681

APPELLANT:

Mr Sitwell

RESPONDENT:

Ms Sitwell

FILE NUMBER:

PAC

5769

2010

APPEAL NUMBER:

2013

DATE ORDERS MADE:

10 & 12 April 2013

DATE JUDGMENT DELIVERED:

12 April 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Loughnan JJ

HEARING DATE:

10 April 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 March 2013

LOWER COURT MNC:

[2013] FamCA 200

REPRESENTATION

FOR THE APPELLANT:

Mr Sitwell appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Sansom

SOLICITOR FOR THE RESPONDENT:

Champion Legal

Orders made on 10 April 2013

The application in an appeal for an adjournment of the appeal, filed by the appellant husband on 8 April 2013, be dismissed.

Orders made on 12 April 2013

Appeal EA 31 of 2013 be dismissed.
The appellant husband pay the respondent wife’s costs of and incidental to the appeal as agreed or, in default of agreement, as assessed.
Certify for counsel for the respondent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sitwell & Sitwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 31 of 2013

File Number: PAC 5769 of 2010

Mr Sitwell

Appellant

And

Ms Sitwell

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 25 March 2013, Mr Sitwell

(“the husband”) appeals the refusal by Collier J on 19 March 2013 to grant a stay of orders made by his Honour on 14 March 2013 in property proceedings between the appellant and Ms Sitwell (“the wife”).
The wife opposed the appeal and seeks to maintain the trial Judge’s orders.

Background

It is important to set out the procedural history of the proceedings to give a context to and understanding of the orders against which the husband appeals.
The husband and wife married in June 1979 and separated in October 2009. Property proceedings…

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: SITWELL & SITWELL [2013] FamCAFC 54
Case: [2013] FamCAFC 54
Decision Date: 12 April 2013

CaseChat Overview and Summary

In this case, the appellant, Mr. Sitwell, was involved in a family law dispute with the respondent, Ms. Sitwell. The matter was before the court for an appeal regarding the refusal of the trial judge to stay certain orders and an adjournment previously granted to Mr. Sitwell to secure legal representation. The court was required to determine whether the appellant had a reasonable chance of success with the appeal, and whether the granting of an adjournment would cause undue delay or prejudice to the respondent.

The court found that there were no prospects of success for the appeal, and there was no evidence that the appellant could prosecute the appeal in a timely manner. Furthermore, the court held that there had been delay on the part of the appellant, which had caused prejudice to the respondent. As a result, the appeal against the refusal of the trial judge to stay the orders was dismissed.

Additionally, the court considered the costs associated with the appeal. Given that the appeal against the refusal of the trial judge to stay the orders was wholly unsuccessful, the appellant was ordered to pay the respondent's costs of and incidental to the said appeal.

In summary, the court dismissed the appeal against the refusal of the trial judge to stay the orders, and ordered the appellant to pay the respondent's costs of and incidental to the appeal.

Orders