Charton & Sedgley (No 2) - [2024] FedCFamC1A 76

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Charton & Sedgley (No 2) [2024] FedCFamC1A 76

Appeal from: Order dated 17 April 2024

Appeal number: NAA 93 of 2024

File number: SYC 4446 of 2020

Judgment of: AUSTIN J

Date of judgment: 7 May 2024

Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Summary dismissal – Where the father appeals from procedural orders made to facilitate progression of the proceedings to trial – Where none of the appealed orders comprises a judgment from which an appeal validly lies – Where the solitary ground of appeal does not disclose any recognisable appealable error – Where the appeal has no reasonable prospect of success – Appeal summarily dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26, 32, 46

Cases cited:
Charton & Sedgley [2023] FedCFamC1A 205

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Number of paragraphs: 11

Date of hearing: 7 May 2024

Place: Newcastle (via Microsoft Teams

Counsel for the Applicant: Litigant in person

Counsel for the Respondent: Mr MacPherson

Solicitor for the Respondent: Bridges Lawyers

Solicitor for the Independent Children's Lawyer: Legal Aid NSW Sydney Central Family Law
ORDERS

NAA 93 of 2024
SYC 4446 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR CHARTON

Applicant

AND:
MS SEDGLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

7 MAY 2024

THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 19 April 2024 is summarily 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 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

The parties and the Independent Children’s Lawyer (“the ICL”) are engaged in litigation under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) before the Federal Circuit and Family Court of Australia (Division 1) in respect of the parties’ two children.
On 17 April 2024, the primary judge made a series of procedural orders to facilitate progression of the proceedings to trial, which is apparently set down in August 2024.
His Honour appointed two single expert witnesses (Orders 1 and 4), ordered the parties to attend consultations with the experts (Orders 2 and 5), restrained the parties from conferring with the experts without the consent of the other and the ICL (Order 13), prescribed the ambit of…

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 Charton & Sedgley (No 2)

Details

AGLC: Charton & Sedgley (No 2) [2024] FedCFamC1A 76
Case: [2024] FedCFamC1A 76
Decision Date: 7 May 2024

CaseChat Overview and Summary

The case of Charton & Sedgley (No 2) involves an appeal by the father, Mr Charton, against procedural orders made to facilitate the progression of the proceedings to trial. The respondent, Ms Sedgley, is the mother, and the matter involves issues concerning the welfare of their children. The appeal was heard by the Federal Circuit and Family Court of Australia in its appellate jurisdiction. The court was tasked with determining whether the appeal had any reasonable prospect of success and whether any appealable error had been disclosed.

The legal issues that the court needed to address were whether the orders made by the primary judge were appealable and if there was any recognisable appealable error. The court found that none of the orders appealed from constituted a judgment from which an appeal validly lies. Furthermore, the sole ground of appeal did not disclose any recognisable appealable error, and the appeal did not have a reasonable prospect of success.

Given the findings, the court dismissed the appeal summarily. The court concluded that the appeal had no reasonable prospect of success and that there was no recognisable appealable error. As a result, the Notice of Appeal filed on 19 April 2024 was dismissed. This decision ensures that the proceedings can progress without further procedural delays, allowing the case to move towards a trial focused on the welfare of the children.

Orders

Orders of the court

NAA 93 of 2024

SYC 4446 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CHARTON

Applicant

AND:

MS SEDGLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

7 MAY 2024

THE COURT ORDERS THAT:

1. The Notice of Appeal filed on 19 April 2024 is summarily 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 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 93 of 2024 SYC 4446 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR CHARTON Applicant
AND:	MS SEDGLEY Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Order dated 17 April 2024
Appeal number:	NAA 93 of 2024
File number:	SYC 4446 of 2020
Judgment of:	AUSTIN J
Date of judgment:	7 May 2024
Catchwords:	FAMILY LAW – APPEAL – Practice and Procedure – Summary dismissal – Where the father appeals from procedural orders made to facilitate progression of the proceedings to trial – Where none of the appealed orders comprises a judgment from which an appeal validly lies – Where the solitary ground of appeal does not disclose any recognisable appealable error – Where the appeal has no reasonable prospect of success – Appeal summarily dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VII Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26, 32, 46
Cases cited:	Charton & Sedgley [2023] FedCFamC1A 205 Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91
Number of paragraphs:	11
Date of hearing:	7 May 2024
Place:	Newcastle (via Microsoft Teams
Counsel for the Applicant:	Litigant in person
Counsel for the Respondent:	Mr MacPherson
Solicitor for the Respondent:	Bridges Lawyers
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW Sydney Central Family Law

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	7 MAY 2024