DIXON & ELLIOT - [2021] FamCAFC 27

FAMILY COURT OF AUSTRALIA

DIXON & ELLIOT

[2021] FamCAFC 27

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the appellant seeks expedition of the hearing of his appeal – Where the matter commenced sometime in 1984 but was not then dealt with for in excess of 30 years – Where the appellant is 81 years of age and is anxious to have the matter finalised as soon as possible given its extended history – Where it is not appropriate that another matter be removed from the April list to include this matter – The matter be listed as the first reserve in the April 2021 list and if not heard in that list it be expedited and be listed with priority in the June 2021 sittings.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Dixon

RESPONDENT:

Ms Elliot

FILE NUMBER:

MLC

437

2018

APPEAL NUMBER:

SOA

2021

DATE DELIVERED:

18 February 2021

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

18 February 2021

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 December 2020

LOWER COURT MNC:

[2020] FamCA 1005

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Thompson

SOLICITOR FOR THE APPELLANT:

Rickards Legal

COUNSEL FOR THE RESPONDENT:

Mr B G Mylne

SOLICITOR FOR THE RESPONDENT:

Turnbull Mylne

Orders

The hearing of this appeal be expedited such that it be listed as the first reserve in the Melbourne/Adelaide appeal sittings commencing on Monday 26 April 2021 NOTING THAT if it is able to be listed that the preferred dates in that week are Thursday 29 and Friday 30 April 2021.
In the event that the appeal is not able to be heard in the April 2021 sittings the hearing of the appeal be expedited further such that it be listed with priority in the Melbourne/Adelaide Full Court sittings commencing on Monday 21 June 2021.
The matter be referred to the Appeal Registrar to conduct a directions hearing at 11:00am on Tuesday 23 February 2021.
The costs of today be reserved.

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 Dixon & Elliot 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 ADELAIDE

Appeal Number: SOA 4 of 2021
File Number: MLC 437 of 2018

Mr Dixon

Appellant

And

Ms Elliot

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is an Application in an Appeal filed by Mr Dixon (“the husband”) on 3 February 2021,…

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 DIXON & ELLIOT

Details

AGLC: DIXON & ELLIOT [2021] FamCAFC 27
Case: [2021] FamCAFC 27
Decision Date: 18 February 2021

CaseChat Overview and Summary

The matter before the Family Court of Australia concerns an application for expedition of a hearing in an appeal. The appellant, who commenced the original proceedings in 1984, seeks to have the appeal expedited due to his advanced age of 81 years and the protracted history of the case. The court was required to determine whether the appellant’s age and the lengthy duration of the proceedings warranted an expedited hearing of the appeal, and if so, what measures should be taken to ensure this.

The court considered the appellant's age and the significant delay in dealing with the matter, which had remained unresolved for over 30 years. The court noted that while the appellant's age and the protracted history of the case were compelling factors, it was not appropriate to remove another matter from the April list to accommodate this appeal. The court was also mindful of the need to maintain a balanced and fair approach to the scheduling of cases, while recognising the appellant's circumstances. The court concluded that the matter should be listed as the first reserve in the April 2021 list, with preferred dates of 29 and 30 April 2021, and if not heard in April, it should be listed with priority in the June 2021 sittings.

The court granted the application for expedition, ordering that the appeal be listed as the first reserve in the Melbourne/Adelaide appeal sittings commencing on Monday 26 April 2021, with preferred dates of Thursday 29 and Friday 30 April 2021. In the event that the appeal could not be heard in the April sittings, it was to be listed with priority in the Melbourne/Adelaide Full Court sittings commencing on Monday 21 June 2021. The matter was referred to the Appeal Registrar to conduct a directions hearing on 23 February 2021 at 11:00am. The costs of the application were reserved, pending entry of the final order in the court’s records.

Orders

Orders of the court

Orders

1. The hearing of this appeal be expedited such that it be listed as the first reserve in the Melbourne/Adelaide appeal sittings commencing on Monday 26 April 2021 NOTING THAT if it is able to be listed that the preferred dates in that week are Thursday 29 and Friday 30 April 2021.

2. In the event that the appeal is not able to be heard in the April 2021 sittings the hearing of the appeal be expedited further such that it be listed with priority in the Melbourne/Adelaide Full Court sittings commencing on Monday 21 June 2021.

3. The matter be referred to the Appeal Registrar to conduct a directions hearing at 11:00am on Tuesday 23 February 2021.

4. The costs of today be reserved.

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 Dixon & Elliot has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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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