Atwood and Atwood - [2017] FamCAFC 239

FAMILY COURT OF AUSTRALIA

ATWOOD & ATWOOD

[2017] FamCAFC 239

FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Extension of time to file a draft index to the appeal books – Application allowed.

Family Law Rules 2004 (Cth) rr 22.13, 24.01

APPELLANT:

Ms Atwood

RESPONDENT:

Mr Atwood

FILE NUMBER:

SYC

3943

2014

APPEAL NUMBERS:	EA	40	of	2017
EA	91	of	2017

DATE DELIVERED:

12 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

12 September 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 April 2017

LOWER COURT MNC:

[2017] FamCA 368

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Condon Legal Pty Ltd

Orders

That pursuant to r 22.13(2)(b) of the Family Law Rules 2004 (Cth) the time in which the Applicant must file a draft index to the appeal books be extended up to and including 4:30 pm on Friday 15 September 2017.
That the appeal be reinstated.
That the Applications in an Appeal filed in EA40/2017 on 24 July 2017 and EA91/2017 on 15 August 2017 are otherwise dismissed.

NOTATION:

(A)The Court notes that it has been explained to the applicant that it is a matter for the Registrar to determine whether the document she proposes to file as the draft index to the appeal books is a document that should properly be filed.

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 Atwood & Atwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 40 of 2017; EA 91 of 2017
File Number: SYC 3943 of 2014

Ms Atwood

Appellant

And

Mr Atwood

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 24 July 2017, Ms Atwood (“the applicant”) seeks the following order:
I am appealing that my handwriting was unreadible [sic] and the paperwork attached be accepted to allow the appeal for the change of conveyancer and access to property.
The documents in support of that application and the application itself are difficult to follow; however, the import of the application can be inferred from the history of the matter.
The applicant has been engaged in proceedings with Mr Atwood (“the respondent”) for some time. The parties have a child aged 11 who has lived with the father since July 2015 following an intervention by the Department of Family and Community Services. On 10 April 2017, Loughnan J refused an application by…

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: [2017] FamCAFC 239
Decision Date: 12 September 2017

CaseChat Overview and Summary

The matter of Atwood and Atwood was before the court, where the Applicant sought an extension of time to file a draft index to the appeal books, as well as the reinstatement of an appeal. The Respondent did not oppose the extension of time, but did object to the reinstatement of the appeal. The Family Court of Australia was tasked with deciding whether to grant the extension of time, reinstate the appeal, and whether to permit the filing of the draft index.

The legal issues before the court involved the interpretation and application of the Family Law Rules 2004 (Cth), specifically rule 22.13(2)(b) which deals with the extension of time for filing documents in appeal proceedings. The court was required to consider whether the Applicant had a valid reason for the delay in filing the draft index and whether the proposed document met the requirements for being filed. Additionally, the court had to determine whether the appeal should be reinstated, despite the Respondent's objections.

The court found that the Applicant had a reasonable excuse for the delay in filing the draft index, and granted the extension of time as requested. The court also noted that it was a matter for the Registrar to determine whether the proposed draft index met the requirements for being filed. In terms of the reinstatement of the appeal, the court decided that it was appropriate to reinstate the appeal, despite the Respondent's objections. The court concluded that the appeal should be reinstated to ensure a fair and just resolution of the underlying dispute between the parties.

The court made orders granting the extension of time for the filing of the draft index, reinstating the appeal, and dismissing the other applications in the appeal. The form of the order was subject to the entry of the order in the Court's records. The court's decision balanced the need for procedural fairness with the importance of resolving disputes in a timely and efficient manner.

Orders

Orders of the court

That pursuant to r 22.13(2)(b) of the Family Law Rules 2004 (Cth) the time in which the Applicant must file a draft index to the appeal books be extended up to and including 4:30 pm on Friday 15 September 2017.

That the appeal be reinstated.

That the Applications in an Appeal filed in EA40/2017 on 24 July 2017 and EA91/2017 on 15 August 2017 are otherwise dismissed.

NOTATION:

(A) The Court notes that it has been explained to the applicant that it is a matter for the Registrar to determine whether the document she proposes to file as the draft index to the appeal books is a document that should properly be filed.

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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