Butler & Gibson - [2021] FamCAFC 8

FAMILY COURT OF AUSTRALIA
Butler & Gibson [2021] FamCAFC 8

Appeal from: Gibson & Butler [2020] FCCA 2770

Appeal number(s): EAA 134 of 2020

File number(s): CAC 48 of 2019

Judgment of: ALDRIDGE J

Date of judgment: 5 February 2021

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – Appeal from interim parenting orders – Appellant failed to file Summary of Argument – Appellant failed to appear at hearing of summary dismissal application – Grounds of appeal too broad to make sense without a Summary of Argument – Any extension of time would deprive respondent of the opportunity properly to prepare for the appeal – Appeal dismissed.

Legislation: Family Law Rules 2004 (Cth) r 22.45

Division: Appeal Division

Number of paragraphs: 17

Date of hearing: 5 February 2021

Place: Sydney (via video link)

The Applicant: Self-represented litigant

The Respondent: No appearance

Counsel for the Independent Children’s Lawyer: Ms Sproston

Solicitor for the Independent Children’s Lawyer: Mark MacDiarmid Family Law Specialist
ORDERS

EAA 134 of 2020
CAC 48 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:
MS GIBSON

Applicant

AND:
MR BUTLER

Respondent

MARK MACDIARMID FAMILY LAW SPECIALIST

Independent Children’s Lawyer

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

5 FEBRUARY 2021

THE COURT ORDERS THAT:
1.The appeal be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Butler & Gibson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:

By way of an Application in an Appeal filed on 13 January 2021, Ms Gibson seeks summary dismissal of this appeal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”). This is because the appellant, Mr Butler, has failed to file a Summary of Argument as ordered by the Appeal Registrar.
The orders appealed from are interim parenting orders that were made a judge of the Federal Circuit Court of Australia on 4 September 2020. The proceedings are back before the primary judge again on 13 April 2021.
A Notice of Appeal was filed by Mr Butler on 24 September 2020. Directions preparing the appeal for hearing were made by the Appeal Registrar on 17 November 2020. Included amongst those orders, was an order that Mr Butler file a Summary of Argument and List of Authorities on or before 21 December 2020. Nothing has been filed to date.
I am satisfied that Mr Butler is aware of the proceedings today. An email was sent to the email address provided by him on 3 February 2021 advising…

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 Butler & Gibson

Details

AGLC: Butler & Gibson [2021] FamCAFC 8
Case: [2021] FamCAFC 8
Decision Date: 5 February 2021

CaseChat Overview and Summary

In the matter of an appeal by Mr Butler against interim parenting orders made by the Family Court, the appellant, Mr Butler, sought to challenge the orders on appeal. Ms Gibson, the respondent, filed an application for summary dismissal of the appeal due to the appellant's failure to file a Summary of Argument and to appear at the hearing of the application for summary dismissal. Mark MacDiarmid, a Family Law Specialist, appeared as the Independent Children's Lawyer. The primary issue before the court was whether the appeal should be summarily dismissed due to the appellant's failure to comply with procedural requirements and the broadness of the grounds of appeal.

The court found that the appellant's failure to file a Summary of Argument and his absence at the hearing of the summary dismissal application justified the respondent's application for summary dismissal. Additionally, the grounds of appeal were too broad and lacked clarity without a Summary of Argument. The court noted that any extension of time would deprive the respondent of the opportunity to properly prepare for the appeal. The court held that the appeal was not likely to succeed and that the respondent would be prejudiced if the appeal was allowed to proceed. The appeal was dismissed.

No further orders were made as the appeal was dismissed. The court's decision was final and binding on the parties. The appellant had the right to appeal the decision to the Full Court of the Family Court of Australia, but the court noted that such an appeal would only be successful if there was a significant error in the primary judge's decision.

Orders

Orders of the court

EAA 134 of 2020

CAC 48 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS GIBSON

Applicant

AND:

MR BUTLER

Respondent

MARK MACDIARMID FAMILY LAW SPECIALIST

Independent Children’s Lawyer

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

5 FEBRUARY 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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EAA 134 of 2020 CAC 48 of 2019
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	MS GIBSON Applicant
AND:	MR BUTLER Respondent
MARK MACDIARMID FAMILY LAW SPECIALIST Independent Children’s Lawyer

Appeal from:	Gibson & Butler [2020] FCCA 2770
Appeal number(s):	EAA 134 of 2020
File number(s):	CAC 48 of 2019
Judgment of:	ALDRIDGE J
Date of judgment:	5 February 2021
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – Appeal from interim parenting orders – Appellant failed to file Summary of Argument – Appellant failed to appear at hearing of summary dismissal application – Grounds of appeal too broad to make sense without a Summary of Argument – Any extension of time would deprive respondent of the opportunity properly to prepare for the appeal – Appeal dismissed.
Legislation:	Family Law Rules 2004 (Cth) r 22.45
Division:	Appeal Division
Number of paragraphs:	17
Date of hearing:	5 February 2021
Place:	Sydney (via video link)
The Applicant:	Self-represented litigant
The Respondent:	No appearance
Counsel for the Independent Children’s Lawyer:	Ms Sproston
Solicitor for the Independent Children’s Lawyer:	Mark MacDiarmid Family Law Specialist

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	5 FEBRUARY 2021