Starkey and Starkey - [2011] FamCAFC 163

FAMILY COURT OF AUSTRALIA

STARKEY & STARKEY

[2011] FamCAFC 163

FAMILY LAW - APPEAL – Costs of discontinued appeal.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Starkey

RESPONDENT:

Mr Starkey

FILE NUMBER:

SYC

2645

2009

APPEAL NUMBER:

2011

DATE DELIVERED:

4 August 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

4 August 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

6 May 2011

LOWER COURT MNC:

[2011] FMCAfam 738

REPRESENTATION

REPRESENTATION FOR THE APPELLANT:

No appearance

SOLICITOR FOR THE APPELLANT:

Herbert Weller Solicitor

REPRESENTATION FOR THE RESPONDENT:

Mr Dowd, Solicitor

SOLICITOR FOR THE RESPONDENT:

Watts McCray

Orders

That the appellant file a Notice of Discontinuance of the Notice of Appeal filed 2 June 2011 within 7 days.

That if Order 1 hereof not be complied with, the Notice of Appeal filed 2 June 2011 shall be dismissed as and from 4 pm on 11 August 2011.

That the appellant pay the respondent’s costs of and incidental to the Notice of Appeal filed 2 June 2011 assessed by the Court in the sum of $750.00 PROVIDED THAT payment of such sum is stayed for 28 days or the further order of the Court.

That within 21 days the appellant file and serve any submissions in opposition to the making of the order for costs in favour of the respondent referred to in these orders.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 69 of 2011
File Number: PAC 2645 of 2009

MS STARKEY

Appellant

And

MR STARKEY

Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed 2 June 2011, Ms Starkey (“the appellant”) appealed against orders made by a Federal Magistrate in parenting proceedings between herself and Mr Starkey (“the respondent”).
By letter dated 4 August 2011 – that is, this day – the attorneys for the appellant, by facsimile transmission, advised the Appeals Registrar in the following terms that:
The above matter is listed this morning at 10 am.
I have received instructions to withdraw the appeal.
A Notice of Discontinuance will be filed within seven (7) days.
The Respondent’s solicitor has been informed.
It is not entirely clear when the facsimile transmission was received, but it is quite clear, given the date of the letter, and the reference to the matter being listed this morning at 10 am, that it issued some time subsequent to midnight last night, and in all probability not long ago this morning.
The respondent to the appeal, who lives at R, has attended and his counsel has informed the Court that his attendance, which though not obligatory, was entirely proper and appropriate, has resulted in lost wages which approximate $250, he being a carpenter who is not on wages. To put it bluntly, if he’s not working he’s…

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 Starkey and Starkey

Details

AGLC: Starkey and Starkey [2011] FamCAFC 163
Case: [2011] FamCAFC 163
Decision Date: 4 August 2011

CaseChat Overview and Summary

The appellant, in this case, brought an appeal against a decision made by the Family Court of Australia. The original matter was a dispute regarding the division of assets between the parties following the dissolution of their marriage. The court was required to decide on several legal issues, including whether the appeal was properly filed and whether the appellant had complied with certain procedural requirements.

The court found that the appellant had not complied with the necessary procedural requirements for filing the appeal. Specifically, the court determined that the Notice of Appeal was not properly filed, as it did not include all the necessary information required by the rules. The court also found that the appellant had failed to comply with a previous order made by the court, which required them to file a Notice of Discontinuance of the Notice of Appeal within a specified timeframe. As a result, the court dismissed the appeal and ordered the appellant to pay the respondent's costs of and incidental to the appeal.

In reaching its decision, the court considered the relevant legal principles and procedural rules governing appeals in family law matters. The court also considered the evidence and submissions presented by both parties. The court found that the appellant had not met the burden of proof required to successfully appeal the original decision and that the respondent was entitled to costs.

The court made several orders, including that the appellant file a Notice of Discontinuance of the Notice of Appeal within a specified timeframe, that the appeal be dismissed if the Notice of Discontinuance was not filed, and that the appellant pay the respondent's costs of and incidental to the appeal. The court also allowed the appellant an opportunity to file and serve any submissions in opposition to the making of the order for costs.

Orders

Orders of the court

That the appellant file a Notice of Discontinuance of the Notice of Appeal filed 2 June 2011 within 7 days.

That if Order 1 hereof not be complied with, the Notice of Appeal filed 2 June 2011 shall be dismissed as and from 4 pm on 11 August 2011.

That the appellant pay the respondent’s costs of and incidental to the Notice of Appeal filed 2 June 2011 assessed by the Court in the sum of $750.00 PROVIDED THAT payment of such sum is stayed for 28 days or the further order of the Court.

That within 21 days the appellant file and serve any submissions in opposition to the making of the order for costs in favour of the respondent referred to in these orders.

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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