Collins and Ricardo - [2014] FamCAFC 53

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO

[2014] FamCAFC 53

FAMILY LAW – APPEAL – possible dismissal for want of prosecution – where the Full Court extended the time for filing of appeal books – where the Full Court made a self-executing order.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPELLANT:

Mr Collins

RESPONDENT:

Ms Ricardo

INDEPENDENT CHILDREN’S LAWYER:

Ms Weate

FILE NUMBER:

SYC

4959

2009

APPEAL NUMBER:

2012

DATE DELIVERED:

20 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland & Ryan JJ

HEARING DATE:

20 March 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 January 2012

LOWER COURT MNC:

[2012] FamCA 11

REPRESENTATION

COUNSEL FOR THE APPELLANT:	In person
SOLICITOR FOR THE RESPONDENT:	Mr Autore

SOLICITOR FOR THE INDEPNDENT CHILDREN’S LAWYER:

Jennifer Weate & Associates

Orders

The father file and serve his appeal books (including passages of the transcript of the trial which he considers relevant) by close of business on 30 June 2014.
In the event that the father does not file and serve his appeal books by close of business on 30 June 2014, the appeal will stand dismissed.
On the father’s compliance with Order 1 of these orders, then the provisions of Rule 22.22 of the Family Law Rules 2004 (Cth) (which concerns the filing of the summaries of argument) shall apply.
Order 4 of the procedural orders made by the Appeal Registrar on 4 April 2012 be amended to include the following affidavits in the contentious appeal book:
(a)
the affidavit of Ms Ricardo in SYF 4548 of 2003 filed


12 December 2008,
(b)       the affidavit of Mr B in SYF 4548 of 2003 filed 23 February 2007.
Otherwise the application of the father filed 13 March 2014 be dismissed.
The father pay the costs of the mother of and incidental to the proceedings today, such costs to be fixed at $380 plus GST.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 15 of 2012
File Number: SYC 4959 of 2009

Mr Collins

Appellant

And

Ms Ricardo

Respondent

And

Ms Weate
Independent children’s lawyer

REASONS FOR JUDGMENT

FINN J:

This matter was listed before us today pursuant to letters written on

5 February 2014 by the Appeal Registrar to both the appellant and respondent to the appeal, and to the Independent Children’s Lawyer. The letters from the Registrar advised the parties that the matter was to be listed before us today so we could consider whether to dismiss for want of prosecution an appeal filed by Mr Collins acting on his own behalf. (I will refer to Mr Collins either as “the father” or “the appellant”). The appeal is against parenting orders made by Watts J on…

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 Collins and Ricardo

Details

AGLC: Collins and Ricardo [2014] FamCAFC 53
Case: [2014] FamCAFC 53
Decision Date

CaseChat Overview and Summary

The appeal in Collins v Ricardo was heard by the Full Court of the Family Court of Australia. The appeal was brought by Mr Collins, the father, against parenting orders made by Watts J in relation to his child with Ms Ricardo, the mother. The mother was represented by Mr Autore, a solicitor, and Ms Weate appeared as the Independent Children's Lawyer. The appeal was originally filed in 2012, but had been subject to numerous delays, including a significant 12-month period with no progress. The Full Court was required to consider whether to dismiss the appeal for want of prosecution due to the father's inaction. The Court also needed to decide whether to grant the father an extension of time to file his appeal books and, if so, what conditions should be imposed on such an extension.

The Court found that despite the significant delay, the interests of justice required that the father be given another opportunity to file his appeal books. The Court took into account the history of the case and previous orders made by Coleman J, which had permitted the father to relist the appeal for hearing at his convenience. The Full Court therefore decided to grant the father an extension until 30 June 2014 to file and serve his appeal books, on the condition that if he failed to meet this deadline, the appeal would be dismissed. The Court also decided to allow two specific affidavits to be included in the appeal book, but rejected the father's application to adduce further evidence by way of additional affidavits filed after the trial. The Court further ordered that the father pay the mother's costs of the proceedings, amounting to $380 plus GST.

In conclusion, the Full Court granted the father an extension of time to file his appeal books, with the condition that if the books were not filed by 30 June 2014, the appeal would be dismissed. The Court also made an order that two specific affidavits be included in the appeal book and dismissed the father's application to adduce further evidence. Finally, the Court ordered the father to pay the mother's costs of the proceedings.

Orders