Daily & Daily (No 3) - [2024] FedCFamC1A 77

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Daily & Daily (No 3) [2024] FedCFamC1A 77

Appeal from: Daily & Daily (No 3) [2024] FedCFamC1F 47

Appeal number: NAA 30 of 2024

File number: ADC 4606 of 2018

Judgment of: AUSTIN J

Date of judgment: 8 May 2024

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks an adjournment of the appeal hearing listed before the Full Court – Where the appellant seeks an extension of time for the parties to file Summaries of Argument – Where the appellant has been unable to secure alternate legal representation since his former solicitor retired – Where the appellant says he feels stressed about preparing for the appeal and provided a letter from his psychiatrist stating he suffers from an ongoing Generalised Anxiety Disorder – Where the first respondent could not articulate any tangible prejudice she would suffer by the adjournment – Where the second respondent neither consented nor objected to the relief sought – Where the appeal hearing is vacated and listed on a later date – Where the parties time for compliance with procedural orders is also extended – Applications otherwise dismissed – Where the first respondent’s application for party/party costs against the appellant of and incidental to the Applications is dismissed.

Legislation: Family Law Act 1975 (Cth) Pt VIII

Number of paragraphs: 17

Date of hearing: 8 May 2024

Place: Newcastle (via Microsoft Teams)

The Appellant: Litigant in person

Counsel for the First Respondent: Ms Pyke KC

Solicitor for the First Respondent: Norman Waterhouse Lawyers

Counsel for the Second Respondent: Ms Barnett

Solicitor for the Second Respondent: Barry Nilsson Lawyers
ORDERS

NAA 30 of 2024
ADC 4606 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR DAILY

Appellant

AND:
MS DAILY

First Respondent

R LAWYERS

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

8 MAY 2024

THE COURT ORDERS THAT:
1.The hearing of the appeal and the cross-appeal, presently fixed for 31 May 2024, is vacated.
2.The appeal and the cross-appeal are re-listed for hearing on 11 July 2024.
3.The time for compliance with Orders 3 and 4 made on 8 April 2024 is extended until 7 June 2024.
4.The time for compliance with Orders 5 and 6 made on 8 April 2024 is extended until 28 June 2024.
5.The time for compliance with Orders 8 and 9 made on 8 April 2024 is extended until 28 June 2024.
6.Otherwise:
(a)the Application in an Appeal filed on 26 April 2024 is dismissed; and
(b)the Application in an Appeal filed on 30 April 2024 is dismissed.

7.The first respondent’s application against the appellant for party/party costs of and incidental to the Applications in an Appeal is dismissed.

NOTATION:
A.The first respondent does not require the publication of reasons for Order 7 hereof.

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

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 Daily & Daily (No 3)

Details

AGLC: Daily & Daily (No 3) [2024] FedCFamC1A 77
Case: [2024] FedCFamC1A 77
Decision Date: 8 May 2024

CaseChat Overview and Summary

The matter of Daily & Daily (No 3) before the Federal Circuit and Family Court of Australia involved an appeal by Mr Daily against orders made in a family law proceeding. Mr Daily sought an adjournment of the appeal hearing, an extension of time for filing Summaries of Argument, and relief from costs. The first respondent, Ms Daily, did not object to the adjournment but opposed the costs relief. The second respondent, R Lawyers, neither consented nor objected to the relief sought. Central to the court's consideration were the appellant's inability to secure alternate legal representation since his former solicitor retired, his stress due to preparing for the appeal, and a letter from his psychiatrist confirming an ongoing Generalised Anxiety Disorder. The court found that the first respondent could not articulate any tangible prejudice from the adjournment, and the second respondent did not object to the relief sought.

The court examined the legal issues regarding the adjournment of the hearing and the extensions of time for procedural compliance. The appellant argued that his mental health condition and the absence of alternate legal representation justified the adjournment and extensions. The court considered the appellant's circumstances, including his psychiatrist's letter and the lack of prejudice to the first respondent. Additionally, the court assessed whether the appellant's stress and anxiety warranted the requested relief. The court concluded that the appellant's mental health condition and the need for additional time to secure representation were sufficient grounds for the adjournment and extensions.

In its decision, the court vacated the hearing of the appeal and the cross-appeal originally fixed for 31 May 2024 and re-listed it for 11 July 2024. The court extended the time for compliance with several procedural orders to accommodate the appellant's needs. The court dismissed the applications for costs relief and other relief sought by the appellant. The court found that the first respondent did not require the publication of reasons for the dismissal of the costs application.

The court's orders reflect a balanced approach, considering the appellant's mental health and the lack of prejudice to the first respondent. The court granted the adjournment and extensions to ensure the appellant could adequately prepare for the appeal, while dismissing the other applications for relief. The decision highlights the importance of considering individual circumstances in legal proceedings, particularly in family law matters where mental health and legal representation can significantly impact the outcome.

Orders

Orders of the court

NAA 30 of 2024

ADC 4606 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR DAILY

Appellant

AND:

MS DAILY

First Respondent

R LAWYERS

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

8 MAY 2024

THE COURT ORDERS THAT:

1. The hearing of the appeal and the cross-appeal, presently fixed for 31 May 2024, is vacated.

2. The appeal and the cross-appeal are re-listed for hearing on 11 July 2024.

3. The time for compliance with Orders 3 and 4 made on 8 April 2024 is extended until 7 June 2024.

4. The time for compliance with Orders 5 and 6 made on 8 April 2024 is extended until 28 June 2024.

5. The time for compliance with Orders 8 and 9 made on 8 April 2024 is extended until 28 June 2024.

6. Otherwise:

(a) the Application in an Appeal filed on 26 April 2024 is dismissed; and

(b) the Application in an Appeal filed on 30 April 2024 is dismissed.

7. The first respondent’s application against the appellant for party/party costs of and incidental to the Applications in an Appeal is dismissed.

NOTATION:

A. The first respondent does not require the publication of reasons for Order 7 hereof.

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 30 of 2024 ADC 4606 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR DAILY Appellant
AND:	MS DAILY First Respondent R LAWYERS Second Respondent

Appeal from:	Daily & Daily (No 3) [2024] FedCFamC1F 47
Appeal number:	NAA 30 of 2024
File number:	ADC 4606 of 2018
Judgment of:	AUSTIN J
Date of judgment:	8 May 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks an adjournment of the appeal hearing listed before the Full Court – Where the appellant seeks an extension of time for the parties to file Summaries of Argument – Where the appellant has been unable to secure alternate legal representation since his former solicitor retired – Where the appellant says he feels stressed about preparing for the appeal and provided a letter from his psychiatrist stating he suffers from an ongoing Generalised Anxiety Disorder – Where the first respondent could not articulate any tangible prejudice she would suffer by the adjournment – Where the second respondent neither consented nor objected to the relief sought – Where the appeal hearing is vacated and listed on a later date – Where the parties time for compliance with procedural orders is also extended – Applications otherwise dismissed – Where the first respondent’s application for party/party costs against the appellant of and incidental to the Applications is dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VIII
Number of paragraphs:	17
Date of hearing:	8 May 2024
Place:	Newcastle (via Microsoft Teams)
The Appellant:	Litigant in person
Counsel for the First Respondent:	Ms Pyke KC
Solicitor for the First Respondent:	Norman Waterhouse Lawyers
Counsel for the Second Respondent:	Ms Barnett
Solicitor for the Second Respondent:	Barry Nilsson Lawyers

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	8 MAY 2024