DELAMARRE & ASPREY - [2015] FamCAFC 159

FAMILY COURT OF AUSTRALIA

DELAMARRE & ASPREY

[2015] FamCAFC 159

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file and serve the appeal books – Where the respondent opposes reinstatement – Where the applicant failed to adequately explain the delay – Where the appeal is of a small compass and doomed to fail – Where reinstatement of the appeal would prejudice the respondent – Application dismissed – Costs order made.

Family Law Rules 2004 (Cth): r 22.21

Gallo v Dawson (1990) 93 ALR 479
Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Mr Delamarre

RESPONDENT:

Ms Asprey

FILE NUMBER:

SYC

4348

2011

APPEAL NUMBER:

149

2014

DATE DELIVERED:

17 August 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

12 August 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

3 October 2014

LOWER COURT MNC:

[2014] FamCA 15

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hodgson

SOLICITOR FOR THE APPLICANT:

Central Coast Family Law

COUNSEL FOR THE RESPONDENT:

Mr Todd

SOLICITOR FOR THE RESPONDENT:

Jo-Anna F S Moy

Orders

The Application in an Appeal filed 20 July 2015 be dismissed.
The father pay the mother’s costs of the application in the amount of $2,500 within twenty eight (28) days.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 149 of 2014
File Number: SYC 4348 of 2011

Mr Delamarre

Applicant

And

Ms Asprey

Respondent

REASONS FOR JUDGMENT

This is an application by Mr Delamarre (“the father”) filed on 20 July 2015 to reinstate his Notice of Appeal filed on 31 October 2014. The appeal, which is against parenting orders made by Loughnan J on 3 October 2014, was deemed abandoned because the father failed to file and serve the appeal books. By order dated 10 December 2014 this was to be done on or before 4 February 2015. As a consequence and by virtue of r 22.21 of the Family Law Rules 2004 (Cth) (“the rules”), the appeal was deemed abandoned.
In the event the appeal is reinstated, the father seeks to vary Orders 4(b)(ii) and 7 of the orders made by the primary judge. Order 4(b)(ii) concerns the children’s living arrangements during the Christmas school holidays until the parties’ son, C, commences Year 2. He is four years of age and it is common ground that the order will apply to three Christmas school holidays. Order 4(b)(ii) is set out below:
Until [C] commences Year 2, for two periods of five days in the Christmas school holidays, unless the parties otherwise agree that is to be from 12.00 pm on 2 January to 12.00 pm on 7 January…

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 DELAMARRE & ASPREY

Details

AGLC: DELAMARRE & ASPREY [2015] FamCAFC 159
Case: [2015] FamCAFC 159
Decision Date: 17 August 2015

CaseChat Overview and Summary

The parties involved in this matter were Delamarre and Asprey, who were formerly married. The nature of the dispute was centred around an appeal made by the father, Delamarre, against a decision that had been made by a Family Court of Australia Judge, regarding the costs of the application. The case was heard by the Full Court of the Family Court of Australia. The legal issues that the court was required to decide were whether the appeal was valid, and if the father’s reasons for appealing the decision were just. The court also needed to determine if the costs that were awarded to the mother were appropriate, and if the father had grounds to appeal them.

The court began by examining the reasons given by the father for appealing the decision. The court found that the father’s reasons were not sufficient to warrant an appeal, and that the original decision made by the Family Court Judge was sound. The court also found that the costs that were awarded to the mother were reasonable, and that the father had not provided any evidence to suggest otherwise. The court concluded that the appeal was not valid, and that the decision made by the Family Court Judge should stand.

The court dismissed the appeal and ordered that the father pay the mother’s costs of the application in the amount of $2,500 within twenty-eight days. The court also noted that the father’s appeal was frivolous and that the costs that were awarded to the mother were reasonable. The court’s decision was final and could not be appealed further. The mother was entitled to the costs that were awarded to her, and the father was required to pay them within the specified time frame.

Orders

Orders of the court

The Application in an Appeal filed 20 July 2015 be dismissed.

The father pay the mother’s costs of the application in the amount of $2,500 within twenty eight (28) days.

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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