Arndale and Kingley (No 2) - [2011] FamCAFC 28

FAMILY COURT OF AUSTRALIA

ARNDALE & KINGLEY (NO 2)

[2011] FamCAFC 28

FAMILY LAW - APPEAL – Application for expedition filed by the Independent Children’s Lawyer – Where should the appeal not be expedited the matter will not be able to proceed to trial before the end of the year – Where the father supports the application for expedition – Where the mother was not served with the application and the accompanying affidavit – Where the extraordinary weather conditions prevented the mother from being at her usual address – Where the self represented mother expressed some reservations about her ability to prepare for an expedited appeal – Where support will be given, as far as possible, to the mother to assist her preparation for the hearing of the appeal – Where the best interests of the child require expedition –Application allowed.

FAMILY LAW - COSTS – The costs of the application of the father reserved to the Full Court.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Arndale

RESPONDENT:

Mr Kingley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

1363

2008

APPEAL NUMBER:

117

2010

DATE DELIVERED:

20 January 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

20 January 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 October 2010

LOWER COURT MNC:

[2010] FamCA 968

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Smith & Associates

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The hearing of the appeal filed 4 November 2010 be expedited. The appeal, if possible, be listed for hearing in the week commencing 28 March 2011, in the Brisbane sittings.
The costs of the respondent father of this application be reserved to the Full Court.

IT IS NOTED that publication of this judgment under the pseudonym Arndale & Kingley (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 117 of 2010
File Number: BRC 1363 of 2008

Ms Arndale

Appellant

And

Mr Kingley

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between the parties concerns parenting orders for the child C Arndale-Kingley, born December 2006.
An application was filed on 24 December 2010 by Ms Dart, the Independent Children’s Lawyer, seeking that the appeal filed by the mother on 4 November 2010 be expedited.
The mother is appealing order 5 of the orders made by Justice O’Reilly on 8 October 2010. That order is in the following terms:
(5)The independent children’s lawyer not be discharged and a new independent children’s lawyer not be appointed.
There is one ground of appeal: that the trial judge failed to provide any or any adequate reasons for her decision. Should her appeal be allowed the mother asks that the Independent Children’s Lawyer be discharged, and that the father and Independent Children’s Lawyer pay her costs of and incidental to the appeal.

Submissions…

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.

Continue reading Arndale and Kingley (No 2)

Details

AGLC: Arndale and Kingley (No 2) [2011] FamCAFC 28
Case: [2011] FamCAFC 28
Decision Date: 20 January 2011

CaseChat Overview and Summary

The case of Arndale and Kingley (No 2) involved a family law matter where an application for the expedition of an appeal was filed by the Independent Children's Lawyer. The urgency of the appeal was underscored by the prospect that if it were not expedited, the matter would not be able to proceed to trial before the end of the year. The father supported the application for expedition, while the mother, who was not served with the application and accompanying affidavit due to extraordinary weather conditions that prevented her from being at her usual address, expressed reservations about her ability to prepare for an expedited appeal.

The legal issues before the court included whether the appeal should be expedited, the implications of the mother not being served with the necessary documents, and the impact of the mother's self-representation and expressed concerns on the proceedings. The court had to weigh the need for expediting the appeal in the child's best interests against the procedural fairness and the mother's capacity to participate in the expedited process. The court determined that support would be given to the mother to assist her in preparing for the hearing of the appeal, and that the best interests of the child required the expedition of the appeal.

The court allowed the application for the expedition of the appeal, ordering that the appeal be listed for hearing in the week commencing 28 March 2011, in the Brisbane sittings, if possible. Additionally, the court reserved the costs of the respondent father's application to the Full Court for determination.

Orders

Orders of the court

The hearing of the appeal filed 4 November 2010 be expedited. The appeal, if possible, be listed for hearing in the week commencing 28 March 2011, in the Brisbane sittings.

The costs of the respondent father of this application be reserved to the Full Court.

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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