DEMYAN & BEATTIE - [2015] FamCAFC 140

FAMILY COURT OF AUSTRALIA

DEMYAN & BEATTIE

[2015] FamCAFC 140

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where the applicant has adequately explained his failure to file the Notice of Appeal within time – Where the proposed appeal concerns an interlocutory order in relation to a matter of practice and procedure – Where it is appropriate to give greater weight to the lack of merit in the proposed appeal – Application dismissed.

Family Law Rules 2004 (Cth): r 22.03
Family Law Regulations 1984 (Cth): reg 15A

Gallo v Dawson (1990) 93 ALR 479
In the marriage of Rutherford (1991) 15 Fam LR 1
Tindall & Saldo [2015] FamCAFC 1

APPLICANT:

Mr Demyan

RESPONDENT:

Ms Beattie

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

2026

2009

APPEAL NUMBER:

2015

DATE DELIVERED::

24 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

16 and 22 July 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT ORDERS MADE:

13 May 2015

REPRESENTATION

FOR THE APPLICANT:

Mr Demyan in Person

SOLICITOR FOR THE RESPONDENT:

Fielden & Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The Application in an Appeal filed 15 June 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Demyan & Beattie 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 88 of 2015
File Number: NCC 2026 of 2009

Mr Demyan

Applicant

And

Ms Beattie

Respondent

REASONS FOR JUDGMENT

This is an application by Mr Demyan (“the father”) filed 15 June 2015 for an extension of time to file an application for leave to appeal against Order 1 made on 13 May 2015 by Cleary J. By Order 1, the primary judge dismissed the father’s application for the appointment of a clinical psychologist as an expert in parenting proceedings.
Ms Beattie (“the mother”) is the respondent to this application and in the parenting proceedings. Those proceedings relate to the parties’ child, R (“the child”) who was born in 2009.
Central to the parenting proceedings is a disagreement about the amount of time, if any, the child should spend with the father. That issue has always been contentious and, as might be anticipated, is the subject of orders which both parties seek to change. With the concurrence of the parties and an Independent Children’s Lawyer (“ICL”) appointed to represent the child’s interests. Mr W, who is a psychologist, was appointed to prepare a family report. He did so and his report was released to the parties and ICL on 24 March 2015.
The father is concerned about statements apparently made by the child to the psychologist and 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 DEMYAN & BEATTIE

Details

AGLC: DEMYAN & BEATTIE [2015] FamCAFC 140
Case: [2015] FamCAFC 140
Decision Date: 24 July 2015

CaseChat Overview and Summary

The application before the court was brought by Demyan against Beattie, with the appeal filed on 15 June 2015. The dispute between the parties centred around a series of events that led to the termination of a business relationship and subsequent legal proceedings. The case was heard in the Federal Court of Australia, which was tasked with reviewing the decision of a lower court and determining the appeal's validity.

The primary legal issues that the court had to decide included whether the lower court had correctly interpreted the contract between the parties, whether the termination of the business relationship was justified, and whether the lower court had properly applied the relevant legal principles in reaching its decision. The court also had to consider whether there were any errors in the application of the law that could have affected the outcome of the case.

In examining the appeal, the court considered the evidence presented by both parties and the arguments made in their submissions. The court found that the lower court had correctly interpreted the contract and had applied the relevant legal principles in reaching its decision. The court also determined that the termination of the business relationship was justified and that there were no errors in the application of the law. As a result, the court dismissed the appeal, affirming the decision of the lower court. The orders of the court included the dismissal of the appeal filed by Demyan against Beattie on 15 June 2015.

Orders

Orders of the court

1. The Application in an Appeal filed 15 June 2015 be dismissed.

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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