DAUTRY & WEMPLE - [2015] FamCAFC 45

FAMILY COURT OF AUSTRALIA

DAUTRY & WEMPLE

[2015] FamCAFC 45

FAMILY LAW – APPEAL – Application to extend time to appeal – Where the mother seeks leave to appeal against an interim order regarding where the child attends school – Where the issue of the child’s schooling was canvassed at the final hearing – Where the final orders granted the father sole parental responsibility – Where the mother appeals against the final orders in separate proceedings – Whether refusal to extend time would result in an injustice to the applicant – Whether there is merit in the substantive appeal – Whether the issue of the child’s schooling was determined on a final basis – Where the mother has provided an adequate explanation for the delay in appealing against the interim orders – Where no prejudice would be suffered by the father if leave granted – Application allowed – Mother to pay the father’s costs of the application.

Family Law Act 1975 (Cth) ss 117, 117(2A)

Family Law Rules 2004 (Cth) r 22.03

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Rice v Asplund (1979) FLC 90-725

APPLICANT:

Ms Dautry

RESPONDENT:

Mr Wemple

FILE NUMBER:

CAC

1472

2013

APPEAL NUMBER:

2015

DATE DELIVERED:

27 March 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

10 March 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 December 2013

LOWER COURT MNC:

[2013] FCCA 2376

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lawrence having been instructed directly by the applicant

COUNSEL FOR THE RESPONDENT:

Mr Stanley

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini Dunn

Orders

The time for filing an appeal against the orders of Judge Neville made on

20 December 2013 be extended to 4 pm Tuesday 7 April 2015.
The appeal against the orders of Judge Neville made on 20 December 2013 be consolidated with and heard at the same time as appeal EA 7 of 2015 being the appeal against the orders of Judge Neville made on 18 December 2014.
Applicant mother to pay the respondent father’s costs of and incidental to the application, such costs to be assessed or agreed. The costs to be paid 42 days from assessment or agreement.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 11 of 2015
File Number: CAC 1472 of 2013

Ms Dautry

Applicant

and

Mr Wemple

Respondent

REASONS FOR JUDGMENT

Introduction

By Application in an Appeal filed on 20 January 2015, Ms Dautry (“the mother”) seeks leave to appeal against parenting orders made on

20 December 2013 following an interim hearing by Judge Neville in relation to the parties’ child X, born in 2008 (“the child”). The orders provided, amongst other matters, for the…

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 DAUTRY & WEMPLE

Details

AGLC: DAUTRY & WEMPLE [2015] FamCAFC 45
Case: [2015] FamCAFC 45
Decision Date: 27 March 2015

CaseChat Overview and Summary

Dautry and Wemple involved a dispute between parents regarding the care and custody of their child. The case was heard in the Family Court of Australia, where Judge Neville had made orders on 20 December 2013 and 18 December 2014. The court was required to determine several legal issues, including the interpretation and application of the Family Law Act 1975, the best interests of the child, and the appropriate costs orders in relation to the appeals filed by the parties. The applicants sought an extension of time to appeal the orders and consolidation of the appeals for hearing, while the respondents argued against these applications.

In considering the applications, the court took into account the need for finality in parenting disputes, the importance of protecting the best interests of the child, and the principles of just and expeditious resolution of proceedings. The court found that the applicants had made a satisfactory showing of a reasonable excuse for the delay in filing the appeals and that consolidation of the appeals would promote efficiency and avoid duplication. The court also considered the financial circumstances of the parties and ordered that the applicant mother pay the respondent father’s costs of and incidental to the application, with the costs to be assessed or agreed and paid within 42 days of assessment or agreement.

In light of the above, the court made orders extending the time for filing an appeal against the orders of 20 December 2013 to 4 pm on Tuesday 7 April 2015, consolidating the appeals for hearing, and ordering the applicant mother to pay the respondent father’s costs of and incidental to the application. These orders reflect the court’s consideration of the legal issues and the circumstances of the case, and provide a framework for the resolution of the parties’ disputes.

Orders

Orders of the court

The time for filing an appeal against the orders of Judge Neville made on

20 December 2013 be extended to 4 pm Tuesday 7 April 2015.

The appeal against the orders of Judge Neville made on 20 December 2013 be consolidated with and heard at the same time as appeal EA 7 of 2015 being the appeal against the orders of Judge Neville made on 18 December 2014.

Applicant mother to pay the respondent father’s costs of and incidental to the application, such costs to be assessed or agreed. The costs to be paid 42 days from assessment or agreement.

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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