TEH & MUIR (DECEASED)

[2018] FamCAFC 43

FAMILY COURT OF AUSTRALIA

TEH & MUIR (DECEASED) [2018] FamCAFC 43

FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – where the appellant sought to amend the appeal books to include an affidavit filed in the substantive proceedings – where the trial judge had directly considered the contents of that affidavit in his judgment – where the respondent did not object to the affidavit being included in the appeal books – where an application to adduce further evidence was not necessary in the circumstances – where the appeal book was amended to include the appellant’s further affidavit – application dismissed.

FAMILY LAW – ORAL APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – where the respondent sought an order to summarily dismiss the appeal pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) – where the application was first foreshadowed in the respondent’s recently filed and served Summary of Argument – where the appellant is a self-represented litigant – where the objective of s 96AA(1) is for such applications to be made well in advance of the appeal hearing itself – where the challenges asserted by the appellant are clear enough from her Notice of Appeal and Summary of Argument – where the respondent has identified and addressed the complaints the appellant seeks to advance on appeal – where the appellant should be allowed the opportunity to make submissions as to the merit of her appeal – oral application dismissed.

FAMILY LAW – APPEAL – COSTS – where the appellant appealed an order that she pay the respondent’s costs of trial in the fixed sum of $100,000 – where the case of the respondent was conducted by his case guardian – where the party died after the appeal was instituted – where the case guardian for the respondent was substituted for the respondent by an Appeals Registrar – where the respondent submitted that the appeal proceedings abate upon death – where the Full Court held the proceedings do not abate – where the case guardian for the respondent has standing to seek costs pursuant to r 6.14 of the Family Law Rules 2004 (Cth) and the costs orders made are characterised as costs of the case guardian within that rule – where the appellant alleged she was unable to meet an order for costs given her poor financial circumstances – where the appellant was wholly unsuccessful at trial – where financial impecuniosity is not a bar to a costs order being made – where there is no evidence that the trial judge exercised his discretion on wrong principles – where ordering the costs in a fixed sum was within the trial judge’s discretion – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $11,524.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Allison & M & Co Pty Ltd and Anor [2014] FamCAFC 210
Derek & Derek (2006) FLC 93-260; [2006] FamCA 339
Greedy & Greedy