Acquaah-Akuffo & Abioye (No 2) - [2016] FamCA 582

FAMILY COURT OF AUSTRALIA

ACQUAAH-AKUFFO & ABIOYE (NO 2)

[2016] FamCA 582

FAMILY LAW – ORDERS – stay
FAMILY LAW – CHILD – relocation

Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499
Jackson & Balen [2009] FamCAFC 131
Trahn & Long (No 2) [2008] FamCAFC 194

APPLICANT:

Mr Acquaah-Akuffo

RESPONDENT:

Ms Abioye

FILE NUMBER:

PAC

1193

2016

DATE DELIVERED:

29 June 2016

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Gill J

HEARING DATE:

29 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Moutasallem

SOLICITOR FOR THE APPLICANT:	BTF Lawyers
SOLICITOR FOR THE RESPONDENT:	Mr Levy, Legal Aid NSW Sydney Central Family Law

Orders until further order

Orders 1 to 7 of the Orders of this Court made on 22 June 2016 are stayed pending further order, on the following conditions, with such stay to lapse on non-compliance with these conditions:
a.The father is to seek an urgent hearing of the appeal at the earliest possible date before the Full Court.
b.The father is to comply with all directions given in respect of the preparation of that appeal including the filing and preparation of any documents.
Notation
A.If the father does not comply with procedural directions in relation to the timely hearing of the appeal the stay will lapse.
c.The father is to make arrangements for the child to continue to have time with his mother via electronic devices while she is in Africa and he is in Australia, at all reasonable times as may be sought by the mother, including the facilitation of Skype time.
I grant the parties leave to relist the interim arrangements for the mother to spend time with the child while the stay is in force before me on 48 hours’ notice.
Notation
B.The facilitation of the mother’s travel to Australia was a matter specifically advanced as being a potential term of the stay. If it turns out not to be available it impacts upon issues of the balance of convenience between the parties and the welfare of the child pending the appeal and leaves open the consideration of the stay.
The matter is otherwise adjourned to 12 August 2016 for further directions on the primary matter.
The parties may appear via telephone on that day but ought provide the Registry with seven days’ notice advising of their intention to do so, so the appropriate arrangements can be made.
Leave is granted to the parties generally to relist the matter on 48 hours’ notice, in particular, that leave is granted in the event of non-compliance with any of the terms of the stay.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Acquaah-Akuffo & Abioye (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: PAC1193/2016

Mr Acquaah-Akuffo

Applicant

And

Ms Abioye

Respondent

REASONS FOR JUDGMENT

This matter is the application for a stay pending…

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: [2016] FamCA 582
Decision Date: 29 June 2016

CaseChat Overview and Summary

In *Acquaah-Akuffo & Abioye (No 2)*, the Supreme Court of Queensland considered an application by the respondents for an order that the applicants' notice of appeal be struck out. The dispute arose from a previous judgment of the Court, which had dismissed the applicants' application for an extension of time to appeal against a decision of the Magistrates Court. The respondents sought to strike out the notice of appeal on the grounds that it was frivolous and vexatious, and an abuse of process.

The primary legal issue before the Court was whether the applicants' notice of appeal constituted an abuse of process, warranting its dismissal. This involved determining whether the appeal was so lacking in merit that it could be characterised as frivolous or vexatious, and whether pursuing it would bring the administration of justice into disrepute. The Court also had to consider the principles governing the striking out of appeals in such circumstances.

Justice Gill, applying the principles established in cases such as *Dey v Victorian Railways Commissioners* and *Wentworth v Woollahra Municipal Council*, found that the applicants' proposed grounds of appeal were entirely without merit and that there was no reasonable prospect of success. His Honour concluded that the appeal was frivolous and vexatious, and that its continuation would constitute an abuse of process. Consequently, the Court ordered that the applicants' notice of appeal be struck out.

Orders