Vek & Vlahmon - [2009] FamCAFC 47

FAMILY COURT OF AUSTRALIA

VEK & VLAHMON

[2009] FamCAFC 47

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Where final property orders had been made under s 79 – Where further proceedings instituted seeking property settlement under s 79 – Where proceedings incompetent – Where Applicant husband sought to amend application for final orders to include claim under s 79A(1) and/or s 79A(1A) – Where failure by Applicant husband to amend application in accordance with orders – Whether Federal Magistrate erred in exercising discretion in refusing further time to amend application to include grounds under s 79A(1) and/or s 79A(1A) – No error in exercise of discretion – Where conceded by Applicant husband that no application was ever filed under s 79A(1) or s 79A(1A) and Applicant husband not precluded from filing such application – No prejudice to Applicant husband – Application for Leave to Appeal refused

FAMILY LAW – COSTS – Where neither party in a strong financial position – Where Applicant husband’s delay and non compliance with orders ultimately necessitated the application – Applicant husband to pay wife’s costs of and incidental to the Application for Leave to Appeal

Family Law Act 1975 (Cth) ss 79, 79A, 79A(1), 79A(1A), 94AA
Federal Magistrates Court Rules 2001 (Cth) – r 3.05, r 4.01, r 4.02, r 7.01

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bennett & Bennett (1985) FLC 91-617
Bigg & Suzi (1998) FLC 92-799
Carr v Finance Company of Australia (No. 1) (1981) 147 CLR 246
Gabel & Yardley (2008) FLC 93-286
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Licul v Corney (1976) 180 CLR 213
Re Luck (2003) 203 ALR 1
Rutherford & Rutherford (1991) FLC 92-255
The State of Queensland & Anor v JL Holdings Pty Ltd (1997) 189 CLR 146
Tudor & Tudor (1992) FLC 92-273

APPLICANT:

Mr Vek

RESPONDENT:

Ms Vlahmon

FILE NUMBER:

MLC

1251

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

27 March 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Finn & Boland JJ

HEARING DATE:

7 October 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

28 February and 3 March 2008

LOWER COURT MNC:

[2008] FMCAfam 296 and
[2008] FMCAfam 298

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Combes

SOLICITOR FOR THE APPLICANT:

Agricola, Wunderlich & Associates

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Gillian Coote Family Law

Orders

That the application for leave to appeal is dismissed.
The applicant husband pay the respondent’s wife’s costs of the application as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

IT IS NOTED that publication of this judgment under the pseudonym Vek & Vlahmon 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 MELBOURNE

Appeal Number: SA 11 of 2008

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: Vek & Vlahmon [2009] FamCAFC 47
Case: [2009] FamCAFC 47
Decision Date: 27 March 2009

CaseChat Overview and Summary

In the Family Court of Australia, the case of Vek & Vlahmon involved an appeal concerning the refusal to grant leave to appeal a decision regarding property settlement. The husband, the Applicant, sought to challenge the Federal Magistrate's decision, arguing that the court had erred in refusing further time to amend his application to include claims under sections 79A(1) and 79A(1A) of the Family Law Act. The husband's initial application for property settlement under section 79 had been found incompetent, and he had sought to amend his application. However, the husband failed to comply with the court's orders to amend his application, leading to the Federal Magistrate's refusal to grant further time.

The central legal issues in the appeal were whether the Federal Magistrate erred in exercising their discretion in refusing to grant further time to amend the application and whether the husband was prejudiced by this decision. The husband argued that the refusal to grant leave to appeal resulted in a miscarriage of justice, as he was not given an opportunity to make a proper application for property settlement. However, the court found that the husband had conceded that no application had ever been filed under sections 79A(1) or 79A(1A), and that he was not precluded from filing such an application in the future. Furthermore, the court found that the husband's delay and non-compliance with orders ultimately necessitated the application, and that there would be no prejudice to him if the appeal was not granted.

The court found that there was no error in the exercise of discretion by the Federal Magistrate in refusing further time to amend the application, and that the husband was not prejudiced by this decision. The court also found that the husband's delay and non-compliance with orders ultimately necessitated the application, and that there would be no prejudice to him if the appeal was not granted. Accordingly, the application for leave to appeal was dismissed, and the husband was ordered to pay the wife's costs of and incidental to the application for leave to appeal.

Orders

Orders of the court

That the application for leave to appeal is dismissed.

The applicant husband pay the respondent’s wife’s costs of the application as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

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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