Beale v Harvie & Anor - [2024] HCASL 82

BEALE
v
HARVIE & ANOR
[2024] HCASL 82
S163/2023

The applicant requires an extension of time within which to seek special leave to appeal from a judgment of a single judge of the Federal Circuit and Family Court of Australia (Division 1) exercising appellate jurisdiction (Austin J) summarily dismissing an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 1) (Wilson J), which in turn dismissed an application for the removal of the Independent Children's Lawyer in parenting proceedings pursuant to r 10.27(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on the basis that the applicant failed to appear at the hearing.
The circumstances of the application have the effect that the application is not an appropriate vehicle to consider any questions of law raised in the application. In the circumstances, the interests of the administration of justice also do not support the grant of special leave. Accordingly, it would be futile to grant an extension of time.
Special leave to appeal is refused.
Edelman J
Jagot J
11 April 2024

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: [2024] HCASL 82
Decision Date

CaseChat Overview and Summary

The applicant, Beale, sought an extension of time to apply for special leave to appeal a decision of a single judge of the Federal Circuit and Family Court of Australia, who had summarily dismissed an appeal from a decision of a Federal Circuit and Family Court judge. The appeal was dismissed on the basis that Beale failed to appear at the hearing, resulting in the dismissal of an application for the removal of the Independent Children's Lawyer in parenting proceedings. The Federal Circuit and Family Court judge had dismissed the application pursuant to rule 10.27(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

The legal issues before the court were whether an extension of time should be granted for Beale to seek special leave to appeal, and whether the application was an appropriate vehicle to consider any questions of law raised. Additionally, the court needed to consider whether the interests of the administration of justice supported the grant of special leave.

The court found that the application was not an appropriate vehicle to consider any questions of law raised, and that the interests of the administration of justice did not support the grant of special leave. The court concluded that granting an extension of time would be futile. Consequently, the application for special leave to appeal was refused.

The final orders of the court were that special leave to appeal was refused.

Orders