VIZE & GADSDEN - [2016] FamCAFC 167

FAMILY COURT OF AUSTRALIA

VIZE & GADSDEN

[2016] FamCAFC 167

FAMILY LAW – APPEAL – SECTION 90RD DECLARATION – Where the appellant appeals the dismissal by the trial judge of the application for a declaration that a de facto relationship existed between the parties – Where it is clear that a trial judge exercises a wide discretion in determining whether a de facto relationship existed pursuant to s 4AA(4) of the Family Law Act 1975 (Cth) – Where here it is suggested that the trial judge has mistaken the facts and has failed to take account of some material consideration in the exercise of that discretion – Where there is no merit in any of the grounds of appeal and many grounds were unsustainable and misconceived – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought an order for costs in the event that the appeal was dismissed – Where the appellant opposed such an order on the basis of her financial circumstances and that this was a finely balanced case such that it was appropriate to bring the appeal – Where impecuniosity is not a bar to an order for costs being made where there are other circumstances that justify such an outcome – Where the appellant was wholly unsuccessful in the appeal – Where this was not a finely balanced case such that it was reasonable to have brought the appeal – Where the respondent has been put to the unnecessary cost of responding to the appeal – Costs ordered on a party/party basis in favour of the respondent.

Family Law Act 1975 (Cth) – ss 4AA and 90RD

Family Law Rules 2004 (Cth)

D & D (Costs) (No 2) (2010) FLC 93-435
De Winter and De Winter (1979) FLC 90-605
House v The King (1936) 55 CLR 499
Lynam v Director General of Social Security (1983) 52 ALR 128
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447

APPELLANT:

Ms Vize

RESPONDENT:

Mr Gadsden

FILE NUMBER:

MLC

2835

2014

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

25 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

3 December 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 April 2015

LOWER COURT MNC:

[2015] FCCA 885

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Goddard

SOLICITOR FOR THE APPELLANT:

Portelli & Co

COUNSEL FOR THE RESPONDENT:

Mr Hutchings

SOLICITOR FOR THE RESPONDENT:

Waters Lawyers

Orders

The appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeal, such costs to be as assessed on a party/party basis in default of agreement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vize & Gadsden has been approved by the…

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: VIZE & GADSDEN [2016] FamCAFC 167
Case: [2016] FamCAFC 167
Decision Date: 25 August 2016

CaseChat Overview and Summary

The case of VIZE & GADSDEN was an appeal against the dismissal of an application for a declaration that a de facto relationship existed between the parties. The Family Court of Australia heard the case and found that the trial judge had correctly exercised their discretion in determining that no such relationship existed. The appellant contested this decision, arguing that the trial judge had mistaken the facts and failed to consider some material considerations. The court, however, found no merit in the grounds of appeal and considered many of them to be unsustainable and misconceived.

The legal issues in the case revolved around the interpretation and application of sections 4AA and 90RD of the Family Law Act 1975. The appellant argued that the trial judge had misapplied the law, but the court found that the trial judge had correctly exercised their discretion in determining the existence of a de facto relationship. The court held that the trial judge's decision was not erroneous and that the appellant had not demonstrated any grounds for the appeal to be successful. The court dismissed the appeal and held that the trial judge's decision was correct.

In addition to dismissing the appeal, the court also considered the respondent's application for costs in the event that the appeal was dismissed. The appellant opposed the application for costs on the basis of her financial circumstances and the finely balanced nature of the case. However, the court held that impecuniosity was not a bar to an order for costs being made where other circumstances justified such an outcome. The court found that the appeal was not finely balanced and that it was reasonable to have brought the appeal. The appellant was wholly unsuccessful in the appeal, and the respondent had been put to unnecessary costs in responding to the appeal. The court ordered the appellant to pay the respondent's costs of and incidental to the appeal on a party/party basis.

In conclusion, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs on a party/party basis. The court found that the trial judge had correctly exercised their discretion in determining that a de facto relationship did not exist between the parties and that the appellant had not demonstrated any grounds for the appeal to be successful. The court also found that the respondent was entitled to costs as the appeal was not finely balanced, and the appellant had been put to unnecessary costs in responding to the appeal.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the costs of the respondent of and incidental to the appeal, such costs to be as assessed on a party/party basis in default of agreement.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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