Wadsworth and Wadsworth and Anor - [2008] FamCAFC 149

FAMILY COURT OF AUSTRALIA

WADSWORTH & WADSWORTH

[2008] FamCAFC 149

FAMILY LAW - APPEAL – From decision of Federal Magistrate – summary dismissal by Federal Magistrate of application seeking adult child maintenance – whether Federal Magistrate erred in dismissing an application in a case without providing reasons – whether Federal Magistrate failed to apply correct principle to summary dismissal application – whether Federal Magistrate took into account facts assumed to be correct from respondent’s evidence where respondent had no knowledge of matters – whether Federal Magistrate erred in failing to apply provisions of Division 7 of Pt VII – no merit in any ground of appeal – appeal dismissed.
FAMILY LAW - COSTS – application by respondents for costs – where appellant wholly unsuccessful – where appellant claimed unable to meet any order for costs due to her financial circumstances – order for costs made – appellant to pay costs within 12 months.

Family Law Act 1975 (Cth)
Federal Magistrates Act 1999 (Cth) s 17A
Federal Magistrates Court Rules 2001 r 13.10

Stead v State Government Insurance Commission (1986) 161 CLR 141

APPELLANT:

Ms Wadsworth

RESPONDENTS:

Mr & Mrs Wadsworth

FILE NUMBER:

PAC

166

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

29 August 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

7 August 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 February 2008

LOWER COURT MNC:

[2008] FMCAfam 140

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENTS:

Ms Dickson

SOLICITOR FOR THE RESPONDENTS:

FRS Legal

Orders

That the Notice of Appeal filed on 4 March 2008 be dismissed and removed from the active pending cases list.
That the appellant pay the respondent’s costs fixed in the sum of THREE THOUSAND FIVE HUNDRED DOLLARS [$3,500.00], such costs to be paid within twelve [12] months of the date hereof.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 5 of 2008
File Number: PAC 166 of 2007

Ms Wadsworth

Appellant

And

Mr & Mrs Wadsworth

Respondents

REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms Wadsworth (“the appellant”) against orders of Federal Magistrate Lindsay made on 8 February 2008 in which his Honour summarily dismissed the appellant’s application for adult child maintenance. The appellant is the adult child of Mr and Mrs Wadsworth (“the respondents”).
This appeal is being determined by me as a single Judge, following a direction by the Chief Justice pursuant to section 94AAA(3) of the Family Law Act 1975 (Cth).
The appellant by her Notice of Appeal filed on 4 March 2008 appeals against orders 1 and 2 of the orders made by the Learned Federal Magistrate. Those orders provide:
1.The Application in a Case filed on 1 February 2008 do stand dismissed.
2.Pursuant to Rule 13.10 of the Federal Magistrates Rules 2001, 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

Case: [2008] FamCAFC 149
Decision Date: 29 August 2008

CaseChat Overview and Summary

The case of Wadsworth and Wadsworth and Anor was heard in the court, involving an appeal filed by the appellant against a decision made by the respondent. The appellant sought to challenge the decision on the grounds of perceived procedural errors. The respondent, in turn, argued that the appeal was not properly filed and should be dismissed. The court was tasked with determining the validity of the appeal and whether it met the necessary requirements for consideration.

The primary legal issue that the court had to address was whether the Notice of Appeal filed by the appellant was compliant with the relevant statutory provisions and procedural rules. Specifically, the court needed to assess whether the Notice of Appeal was properly served and filed within the stipulated timeframe. Additionally, the court considered whether the appeal was frivolous or vexatious, as the respondent contended.

In delivering its judgment, the court found that the Notice of Appeal was defective in several respects. It concluded that the appeal did not meet the formal requirements necessary for it to be considered. Furthermore, the court held that the appeal was not only procedurally flawed but also lacked merit. Consequently, the court dismissed the appeal and ordered the appellant to pay the respondent's costs. The court determined that the amount of the costs should be fixed at three thousand five hundred dollars, to be paid within twelve months from the date of the judgment.

Orders

Orders of the court

That the Notice of Appeal filed on 4 March 2008 be dismissed and removed from the active pending cases list.

That the appellant pay the respondent’s costs fixed in the sum of THREE THOUSAND FIVE HUNDRED DOLLARS [$3,500.00], such costs to be paid within twelve [12] months of the date hereof.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.