Suiter & Suiter - [2016] FamCAFC 72

FAMILY COURT OF AUSTRALIA

SUITER & SUITER

[2016] FamCAFC 72

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant asserts that the orders made were not congruent with existing orders and were made on the basis of findings not supported by the evidence or on irrelevant matters – Where it is also asserted that the trial judge failed to properly determine the applications of the parties before her and in so doing failed to apply the provisions of s 129 of the Child Support (Assessment) Act 1989 (Cth) and failed to give adequate reasons for her decision – Where there is no merit in any of the grounds of appeal – Where no useful purpose would be served in granting leave to appeal in circumstances where the grounds of appeal have been found to be without merit – Leave to appeal dismissed.

FAMILY LAW – APPEAL – ADDUCE FURTHER EVIDENCE – Where the further evidence would only be relied upon in the event of substance being found in the appeal and the discretion re-exercised – Where leave to appeal was refused – Application to adduce further evidence dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought her costs on an indemnity basis – Where there is no basis to order indemnity costs – Where there are circumstances justifying an order for costs in the respondent’s favour – Costs ordered on a party/party basis to be assessed in default of agreement.

Family Law Act 1975 (Cth) – s 66L
Child Support (Assessment) Act 1989 (Cth) – ss 100(2), 102, 141(1)(f), 141(3), 124 and 129.

Family Law Rules (2004) (Cth)

Apoda & Apoda and Anor [2013] FamCA 265

APPELLANT:

Mr Suiter

RESPONDENT:

Ms Suiter

FILE NUMBER:

2014

APPEAL NUMBER:

PTW

501

2008

DATE DELIVERED:

10 May 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Perth

JUDGMENT OF:

Finn, Strickland and Ainslie-Wallace JJ

HEARING DATE:

27 October 2015

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

3 July 2014

LOWER COURT MNC:

[2014] FCWA 40

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Castiglione QC with Mr Cridland

SOLICITOR FOR THE APPELLANT:

GG Legal

COUNSEL FOR THE RESPONDENT:

Mr Dowding SC with
Ms Kerr

SOLICITOR FOR THE RESPONDENT:

DCH Legal Group

Orders

The application for leave to appeal the orders made by the Honourable Justice Crisford on 3 July 2014 be dismissed.
The application to adduce further evidence filed on 9 October 2015 be dismissed.
The husband pay the wife’s costs of and incidental to the application for leave to appeal referred to in Order 1 of these orders on a party/party basis with such costs to be assessed in default of agreement.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: PTW 501…

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 Suiter & Suiter

Details

AGLC: Suiter & Suiter [2016] FamCAFC 72
Case: [2016] FamCAFC 72
Decision Date: 10 May 2016

CaseChat Overview and Summary

The appellant sought leave to appeal from orders made by the Family Court regarding child support and property distribution. The trial judge had made orders regarding the calculation of child support and the division of property between the parties, which the appellant contested on several grounds. The appellant argued that the orders were inconsistent with previous orders, were based on unsupported findings, and were made considering irrelevant matters. Additionally, the appellant claimed that the trial judge failed to apply relevant statutory provisions and did not provide sufficient reasons for her decisions.

The court considered the grounds of appeal and found that there was no merit in any of them. The court found that the orders made by the trial judge were consistent with the evidence and the law, and that the trial judge had properly exercised her discretion. The court held that the trial judge had given adequate reasons for her decisions and had applied the relevant statutory provisions correctly. The court also found that the appellant's application to adduce further evidence was conditional on the success of the appeal, and since the appeal had no merit, there was no need to allow the further evidence.

The court dismissed the application for leave to appeal and the application to adduce further evidence. The court also ordered that the husband pay the wife's costs of and incidental to the application for leave to appeal on a party/party basis, to be assessed in default of agreement. The court found that there were circumstances justifying an order for costs in the respondent's favour, but there was no basis to order indemnity costs. This decision highlights the importance of providing adequate reasons for decisions in family law cases and the need for parties to properly challenge orders in a timely manner.

Orders

Orders of the court

The application for leave to appeal the orders made by the Honourable Justice Crisford on 3 July 2014 be dismissed.

The application to adduce further evidence filed on 9 October 2015 be dismissed.

The husband pay the wife’s costs of and incidental to the application for leave to appeal referred to in Order 1 of these orders on a party/party basis with such costs to be assessed in default of agreement.

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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