Barlow & Sellers - [2022] FedCFamC1A 22

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Barlow & Sellers [2022] FedCFamC1A 22

Appeal from: Barlow & Sellers [2021] FedCFamC1F 327

Appeal number(s): NAA 15 of 2022

File number(s): ADC 3611 of 2012

Judgment of: AUSTIN J

Date of judgment: 18 February 2022

Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Where the appeal was listed to afford the appellant the opportunity to be heard as to why the incompetent grounds of appeal should not struck out – Where many of the grounds appear to be completely misconceived – Where no submission made by the appellant persuaded that any of those grounds of appeal had any reasonable prospect of success – Where the remaining grounds seem at least arguable but are not yet sufficiently particularised – Where, with the exception of five grounds, all others are struck out as incompetent.

Legislation:
Disability Discrimination Act 1992 (Cth)

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth) Pt VII, ss 69E, 69H

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32

Cases cited:
House v The King (1936) 55 CLR 499; [1936] HCA 40

Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84

Number of paragraphs: 11

Date of hearing: 18 February 2022

Place: Newcastle (via video link)

The Appellant: Litigant in person

Counsel for the Respondent: Mr Roberts

Solicitor for the Respondent: Thomson & Associates

Counsel for the Independent Children's Lawyer: Ms Olsson

Solicitor for the Independent Children's Lawyer: Silkwoods Chambers
ORDERS

NAA 15 of 2022
ADC 3611 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BARLOW

Appellant

AND:
MR SELLERS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

18 FEBRUARY 2022

THE COURT ORDERS THAT:
1.All but Grounds 1, 2, 4, 5 and 11 of the Amended Notice of Appeal filed on 27 January 2022 are struck out.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barlow & Sellers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

This is an appeal by the mother from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
In essence, the appealed orders provide for the father to have sole parental responsibility for the parties’ two children, for the children to live with the father, and for the children…

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 Barlow & Sellers

Details

AGLC: Barlow & Sellers [2022] FedCFamC1A 22
Case: [2022] FedCFamC1A 22
Decision Date: 18 February 2022

CaseChat Overview and Summary

In the appeal brought by Ms Barlow against Mr Sellers, the Federal Circuit and Family Court of Australia, sitting in its appellate jurisdiction, was tasked with determining the competency of the grounds of appeal. The primary focus was on whether certain grounds should be struck out due to their incompetence, or if they had a reasonable prospect of success. The case involved an appeal from an earlier decision concerning family law matters, with the appellant seeking to challenge the lower court's ruling.

The court considered whether the numerous grounds of appeal presented by the appellant had any reasonable prospect of success, particularly focusing on those that seemed misconceived or inadequately particularised. The appellant was given an opportunity to be heard, but no submissions were persuasive enough to maintain the majority of the grounds of appeal. The court found that while some grounds appeared arguable, they lacked the necessary specificity to warrant further consideration.

Ultimately, the court decided to strike out all but five of the grounds of appeal. The court held that most of the grounds were either completely misconceived or not sufficiently particularised, and therefore did not have a reasonable prospect of success. The remaining grounds, while at least arguable, needed to be more clearly defined to proceed. The court's decision to strike out the majority of the grounds reflects a stringent application of the legal principles governing the competency of grounds of appeal in family law matters.

The court's final order was that all but Grounds 1, 2, 4, 5, and 11 of the Amended Notice of Appeal filed on 27 January 2022 were struck out. This decision effectively narrowed the scope of the appeal, allowing only a limited number of grounds to be considered on their merits in the appellate process.

Orders

Orders of the court

NAA 15 of 2022

ADC 3611 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BARLOW

Appellant

AND:

MR SELLERS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

18 FEBRUARY 2022

THE COURT ORDERS THAT:

1. All but Grounds 1, 2, 4, 5 and 11 of the Amended Notice of Appeal filed on 27 January 2022 are struck out.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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.

NAA 15 of 2022 ADC 3611 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BARLOW Appellant
AND:	MR SELLERS Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Barlow & Sellers [2021] FedCFamC1F 327
Appeal number(s):	NAA 15 of 2022
File number(s):	ADC 3611 of 2012
Judgment of:	AUSTIN J
Date of judgment:	18 February 2022
Catchwords:	FAMILY LAW – APPEAL – Practice and procedure – Where the appeal was listed to afford the appellant the opportunity to be heard as to why the incompetent grounds of appeal should not struck out – Where many of the grounds appear to be completely misconceived – Where no submission made by the appellant persuaded that any of those grounds of appeal had any reasonable prospect of success – Where the remaining grounds seem at least arguable but are not yet sufficiently particularised – Where, with the exception of five grounds, all others are struck out as incompetent.
Legislation:	Disability Discrimination Act 1992 (Cth) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Pt VII, ss 69E, 69H Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32
Cases cited:	House v The King (1936) 55 CLR 499; [1936] HCA 40 Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs:	11
Date of hearing:	18 February 2022
Place:	Newcastle (via video link)
The Appellant:	Litigant in person
Counsel for the Respondent:	Mr Roberts
Solicitor for the Respondent:	Thomson & Associates
Counsel for the Independent Children's Lawyer:	Ms Olsson
Solicitor for the Independent Children's Lawyer:	Silkwoods Chambers

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	18 FEBRUARY 2022