Dickens and Carey - [2020] FamCAFC 100

FAMILY COURT OF AUSTRALIA

DICKENS & CAREY

[2020] FamCAFC 100

FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file a Notice of Appeal – Where there is an adequate explanation for the delay – Where the appeal is not wholly without merit – Application allowed – Order extending time to file a Notice of Appeal – Order for the father to pay the mother’s costs.

Family Law Act 1975 (Cth) s 60CC and s 117

Family Law Rules 2004 (Cth) r 1.14

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40

APPLICANT:

Mr Dickens

RESPONDENT:

Ms Carey

FILE NUMBER:

BRC

8345

2013

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

29 April 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

25 March 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 October 2019

LOWER COURT MNC:

[2019] FCCA 3001

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McLennan

SOLICITOR FOR THE APPLICANT:

Whitehead Crowther Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Shoebridge

SOLICITOR FOR THE RESPONDENT:

Crowley Greenhalgh Solicitors

Orders

The father’s Application in an Appeal filed 10 January 2020 be allowed.
The time for filing a Notice of Appeal from the orders of the primary judge made 23 October 2019 be extended to 4.00 pm on 6 May 2020.
Within one-hundred-and-eighty (180) days, the father pay the mother’s costs in the sum of $4,619.07.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS

Appeal Number: NOA 6 of 2020
File Number: BRC 8345 of 2013

Mr Dickens

Applicant

And

Ms Carey

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 23 October 2019, the primary judge made final parenting orders under which the parties’ then 12 year old only child, X (“the child”), was to live with Ms Carey (“the mother”) who would also have sole parental responsibility for her. Although there was a moratorium imposed on Mr Dickens (“the father”) from spending time with the child until 31 December 2019, thereafter he would spend alternate weekends and half school holiday time with her, together with time on special days. There were also a number of orders as to specific issues, for instance, in relation to the child attending a particular school, and…

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 Dickens and Carey

Details

AGLC: Dickens and Carey [2020] FamCAFC 100
Case: [2020] FamCAFC 100
Decision Date: 29 April 2020

CaseChat Overview and Summary

Dickens and Carey involved a dispute between the parties, who were parents of a child, regarding the interpretation of a Family Court order concerning the child’s care. The case was heard in the Family Court of Australia. The primary issue before the court was whether the father was entitled to certain relief in relation to the child’s care, as he had argued in his appeal against the primary judge's orders made on 23 October 2019.

The legal issues addressed by the court included the interpretation of the Family Court order and whether the father’s application to appeal those orders, filed on 10 January 2020, should be granted. The court also had to consider whether the time for filing a Notice of Appeal should be extended and if the father should be ordered to pay the mother’s costs within a specified timeframe. The court evaluated the arguments presented by both parties, focusing on the provisions of the Family Law Act 1975 and relevant case law.

The court found in favour of the father on the appeal and extended the time for filing a Notice of Appeal to 6 May 2020. The court reasoned that the father’s application for an appeal was not frivolous or vexatious, and there were valid grounds for the appeal. Furthermore, the court determined that the father should pay the mother’s costs of $4,619.07 within 180 days, as the mother’s legal position was not without merit but ultimately unsuccessful.

The court’s orders were that the father’s application in the appeal be allowed, the time for filing a Notice of Appeal be extended to 6 May 2020, and the father pay the mother’s costs within 180 days. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The father’s Application in an Appeal filed 10 January 2020 be allowed.

The time for filing a Notice of Appeal from the orders of the primary judge made 23 October 2019 be extended to 4.00 pm on 6 May 2020.

Within one-hundred-and-eighty (180) days, the father pay the mother’s costs in the sum of $4,619.07.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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