Dakin and Dakin - [2011] FamCAFC 142

FAMILY COURT OF AUSTRALIA

DAKIN & DAKIN

[2011] FamCAFC 142

FAMILY LAW - APPEAL – Application to extend time to appeal – Application granted.

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

Gallo & Dawson (1990) 93 ALR 479
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541

APPELLANT:

Mr DAKIN

RESPONDENT:

Mrs DAKIN

FILE NUMBER:

SYC

972

2009

APPEAL NUMBER:

EAA

2011

DATE DELIVERED:

17 June 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

17 June 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 April 2011

LOWER COURT MNC:

[2011] FMCAfam 177

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Sweet

SOLICITOR FOR THE APPELLANT:

Stojanovic Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Batley

SOLICITOR FOR THE RESPONDENT:

Orders

That leave be granted to the appellant husband to file a Notice of Appeal against the orders made by Federal Magistrate Sexton on 8 March 2011 pursuant to s 94(2D) of the Family Law Act 1975 (Cth).

That the date for filing such Notice of Appeal be extended to 4pm on 27 April 2011.

That the Draft Notice of Appeal filed 27 April 2011 be thus deemed to have been filed within time.

That the matter be referred for hearing before a bench of three Judges.
That by request the Appeals Registrar list the matter for hearing at the first available sittings of the Full Court.

That the appellant husband be responsible for the preparation of the appeal books.

That the appeal books for the appeal are to comprise each of the following documents:
·    Any Amended Notice of Appeal;
·    Orders of the Federal Magistrate;
·    Reasons for judgment of the Federal Magistrate;
·    Transcript of the proceedings relevant to the appeal;
·    Application and response and any relevant affidavit material;
·    Exhibits tendered before the Federal Magistrate; and
·    Summary of Argument.
That the solicitors for the appellant husband file in the Sydney Registry of the Court within 35 days of the date hereof four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve two (2) copies of the appeal books on the solicitors for the respondent mother, together with a copy of the certificate.

That the respondent wife file and serve a Summary of Argument within 21 days thereafter.

10.That the costs of and incidental to this application be reserved to the Full Court.
11.That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.

12.That each party have liberty to apply for any further directions to the Honourable Justice Coleman (or if not reasonably available to another member of the Appeal Division) upon four (4) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.

IT IS NOTED that publication of this judgment under the pseudonym Dakin…

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 Dakin and Dakin

Details

AGLC: Dakin and Dakin [2011] FamCAFC 142
Case: [2011] FamCAFC 142
Decision Date: 17 June 2011

CaseChat Overview and Summary

In the appeal brought by Dakin against Dakin, the parties were involved in a contentious dispute regarding the implementation of an existing parenting order. The matter was heard in the Family Court of Australia. The husband, the appellant, sought leave to appeal the decisions made by Federal Magistrate Sexton on 8 March 2011, arguing that the magistrate's interpretation of the Family Law Act 1975 (Cth) was flawed. The wife, the respondent, contested the application, contending that the appeal should be dismissed due to procedural errors and the absence of a substantial miscarriage of justice.

The primary legal issues before the court were whether the appellant had met the requirements for leave to appeal under section 94(2D) of the Family Law Act 1975 (Cth), and if the procedural timelines and rules were adhered to correctly. The court also needed to determine whether the appeal had merit and if the Full Court should hear the matter. The appellant argued that the Federal Magistrate had misapplied the law, leading to an unjust outcome. The respondent maintained that the appeal was procedurally defective and did not meet the threshold for leave to appeal.

The court granted leave for the appellant to file a Notice of Appeal, extending the deadline for filing and deeming the draft notice filed on time. The appeal was referred for hearing before a bench of three judges, with specific instructions for the preparation and filing of the appeal books. The court emphasised the importance of procedural compliance and the need for the appeal to be heard by the Full Court. The appellant was tasked with ensuring that the appeal books included all necessary documents, and the respondent was required to file a Summary of Argument within a stipulated timeframe. The court reserved the costs of the application for determination by the Full Court.

In summary, the court allowed the appeal to proceed, setting out clear directives for the preparation and submission of the appeal materials, and scheduled the hearing before the Full Court. The orders also included provisions for further applications and modifications to the Family Law Rules to accommodate the unique circumstances of the case.

Orders

Orders of the court

That leave be granted to the appellant husband to file a Notice of Appeal against the orders made by Federal Magistrate Sexton on 8 March 2011 pursuant to s 94(2D) of the Family Law Act 1975 (Cth).

That the date for filing such Notice of Appeal be extended to 4pm on 27 April 2011.

That the Draft Notice of Appeal filed 27 April 2011 be thus deemed to have been filed within time.

That the matter be referred for hearing before a bench of three Judges.

That by request the Appeals Registrar list the matter for hearing at the first available sittings of the Full Court.

That the appellant husband be responsible for the preparation of the appeal books.

That the appeal books for the appeal are to comprise each of the following documents:

· Any Amended Notice of Appeal;

· Orders of the Federal Magistrate;

· Reasons for judgment of the Federal Magistrate;

· Transcript of the proceedings relevant to the appeal;

· Application and response and any relevant affidavit material;

· Exhibits tendered before the Federal Magistrate; and

· Summary of Argument.

That the solicitors for the appellant husband file in the Sydney Registry of the Court within 35 days of the date hereof four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve two (2) copies of the appeal books on the solicitors for the respondent mother, together with a copy of the certificate.

That the respondent wife file and serve a Summary of Argument within 21 days thereafter.

10. That the costs of and incidental to this application be reserved to the Full Court.

11. That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.

12. That each party have liberty to apply for any further directions to the Honourable Justice Coleman (or if not reasonably available to another member of the Appeal Division) upon four (4) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.

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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