Connor & Cosgrove - [2017] FamCAFC 61

FAMILY COURT OF AUSTRALIA

CONNOR & COSGROVE

[2017] FamCAFC 61

FAMILY LAW – APPEAL – Hearing for dismissal for want of prosecution – Where the appellant has not complied with the orders made to prepare the appeal for hearing – Where the appellant has failed to file a summary of argument – Where the appellant was informed that the appeal was listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant sought an extension of time in which to file his summary of argument – Where the appellant indicated he could not file the summary of argument for at least three months – Where the appeal grounds do not reveal any arguable error – Where any extension of time would represent an injustice to the respondent – Appeal dismissed – Costs ordered.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.45

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Jackamarra v Krakouer (1998) 195 CLR 516
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27
Re W and W: abuse allegations, expert evidence (2001) FLC 93-085

APPELLANT:

Mr Connor

RESPONDENT:

Ms Cosgrove

FILE NUMBER:

BRC

3669

2014

APPEAL NUMBER:

2015

DATE DELIVERED:

5 April 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Kent & Cronin JJ

HEARING DATE:

7 March 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 August 2015

LOWER COURT MNC:

[2015] FCCA 3255

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Dunning QC with Mr M Williams

SOLICITOR FOR THE RESPONDENT:

Hetherington Legal

Orders

The appellant father’s oral application for an extension of time in which to file his summary of argument is dismissed.
The appeal NA 65 of 2015 is dismissed pursuant to the provisions of r 22.45 of the Family Law Rules 2004 (Cth).
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the sum of $5,560.62.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 65 of 2015
File Number: BRC 3669 of 2014

Mr Connor

Appellant

And

Ms Cosgrove

Respondent

REASONS FOR JUDGMENT

Mr Connor (“the father”) appeals against parenting orders made by…

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 Connor & Cosgrove

Details

AGLC: Connor & Cosgrove [2017] FamCAFC 61
Case: [2017] FamCAFC 61
Decision Date: 5 April 2017

CaseChat Overview and Summary

Connor & Cosgrove was a matter heard by the Family Court of Australia, where the appellant, a father, sought an extension of time to file his summary of argument. The respondent, the mother, opposed the application. The court was tasked with determining whether the appellant's application for an extension of time was justified and whether the appeal should be dismissed. Additionally, the court had to consider the costs associated with the appeal.

The legal issues before the court were the merits of the father's application for an extension of time to file his summary of argument, and whether the appeal should be dismissed under the relevant provisions of the Family Law Rules 2004 (Cth). The court also needed to determine whether the mother's costs should be awarded to her and, if so, in what amount.

The court dismissed the father's application for an extension of time, finding that there were no exceptional circumstances justifying the delay. The court also dismissed the appeal on the basis that the father's application was not made within the required time frame, and that the appeal was otherwise not well-founded. The court ordered that the father pay the mother's costs of and incidental to the appeal in the sum of $5,560.62. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appellant father’s oral application for an extension of time in which to file his summary of argument is dismissed.

The appeal NA 65 of 2015 is dismissed pursuant to the provisions of r 22.45 of the Family Law Rules 2004 (Cth).

The appellant father pay the respondent mother’s costs of and incidental to the appeal in the sum of $5,560.62.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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