Danes and Danes & Anor - [2014] FamCAFC 86

FAMILY COURT OF AUSTRALIA

DANES & DANES AND ANOR

[2014] FamCAFC 86

FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where the Appeals Registrar listed the matter for consideration of whether the appeal should be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant has now filed her summary of argument – Where the appeal should not be dismissed – Orders made for the filing and serving of summaries of argument by the respondents and by the Independent Children’s Lawyer.

FAMILY LAW – APPEAL – NOTICE OF APPEAL - COSTS – Where the ICL seeks that their costs of today be reserved to the hearing of the appeal – Costs reserved.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) – r 22.25

APPELLANT:

Ms A Danes

FIRST RESPONDENT:

Ms C Danes

SECOND RESPONDENT:

Mr Bray

THIRD RESPONDENT:

Independent Children’s

Lawyer

FILE NUMBER:

SYC

6705

2011

APPEAL NUMBER:

2013

DATE DELIVERED:

13 May 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Murphy & Austin JJ

HEARING DATE:

13 May 2014

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

28 March 2013

LOWER COURT MNC:

[2013] FMCAfam 281

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hodgson

THE FIRST RESPONDENT:

No appearance

THE SECOND RESPONDENT:

No appearance

COUNSEL FOR THE THIRD

RESPONDENT (ICL):

Mr O’Dowd, solicitor

SOLICITOR FOR THE THIRD

RESPONDENT (ICL):

Legal Aid NSW

Sydney Central Family Law

Orders

If so advised the respondent father file and serve an updated Summary of Argument and a List of Authorities with the Appeals Registrar on or before

10 June 2014.
The respondent mother file and serve her Summary of Argument and List of Authorities with the Appeals Registrar on or before 10 June 2014.
The Independent Children’s Lawyer file and serve his Summary of Argument and List of Authorities with the Appeals Registrar on or before 8 July 2014.
The costs of the Independent Children’s Lawyer for today be reserved to the hearing of the appeal.
This appeal be referred to the Appeals Registrar for listing for hearing at the earliest available opportunity.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Danes & Danes and Anor 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 46 of 2013
File Number: SYC 6705 of 2011

Ms A Danes

Appellant

And

Ms C Danes

First Respondent

And

Mr Bray

Second Respondent

And

Independent Children’s Lawyer

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

Strickland J

This appeal was listed today by the Appeals Registrar for the purpose of this court considering whether to make an order dismissing the appeal pursuant to

r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”).
The Notice of Appeal was filed on 24 April 2013 appealing against parenting orders made by Federal…

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 Danes and Danes & Anor

Details

AGLC: Danes and Danes & Anor [2014] FamCAFC 86
Case: [2014] FamCAFC 86
Decision Date

CaseChat Overview and Summary

In the matter of Danes and Danes & Anor, the appellant, Ms A Danes, a maternal grandmother, appealed against certain parenting orders made by the Federal Magistrates Court of Australia. The respondents to the appeal were Ms C Danes, the children's mother, Mr Bray, the children's father, and the Independent Children's Lawyer. The court had to determine whether to dismiss the appeal as the appellant had failed to comply with a prior order to file her summary of argument within the stipulated timeframe. Despite this non-compliance, the court decided that the appeal should not be dismissed, largely due to the appellant's completion of the necessary steps for pursuing the appeal, and the absence of any significant prejudice to the respondents.

The primary legal issue before the court was whether the appeal should be dismissed under r 22.45 of the Family Law Rules 2004 (Cth) due to the appellant's failure to comply with a prior order. The court considered the procedural history of the case, the significant expenses incurred by the appellant in preparing the appeal, and the lack of prejudice to the respondents if the appeal were to proceed. The court found that despite the procedural irregularity, the appeal should not be dismissed and ordered the filing of summaries of argument by the remaining parties. The court also reserved the costs of the Independent Children's Lawyer for the hearing of the appeal.

The Full Court, consisting of Strickland, Murphy, and Austin JJ, concluded that the appeal should proceed and ordered that the first respondent, the second respondent, and the Independent Children's Lawyer file and serve their summaries of argument and lists of authorities by specified dates. The court also reserved the costs of the Independent Children's Lawyer for the hearing of the appeal and referred the matter to the Appeals Registrar for listing. The final orders mandated that the first respondent file and serve their summary by 10 June 2014, the second respondent file and serve their updated summary by the same date, and the Independent Children's Lawyer file and serve their summary by 8 July 2014. The appeal was to be listed for hearing at the earliest available opportunity.

Orders