DUARTE & MORSE - [2018] FamCAFC 69

FAMILY COURT OF AUSTRALIA

DUARTE & MORSE

[2018] FamCAFC 69

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time to file an application to review a registrar’s orders – Where the delay was insignificant – Application granted.

FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW OF A REGISTRAR’S ORDERS – Notices to the Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth) – Whether the Court and its registrars have the power to direct that the noticed be served by a particular date – Whether procedural orders provided adequate timeframes for the filing and service of documents – Whether the registrar should have made an order allowing for the issue of a Notice to Produce – Where Notices to Produce are an interlocutory process not appropriate for an appeal – Where the applicant sought clarification of the Court’s powers – Where the Court cannot give an advisory opinion – Extensions of time and of the length of the parties’ Summaries of Argument granted – Application otherwise dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 1.14(2), 15.76, 22.40
Judiciary Act 1903 (Cth) s 78B

Family Court of Australia, Practice Direction No. 1 of 2017 – Conduct of Appeals, 22 December 2016

Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292; [1999] FCA 1151
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

FIRST APPLICANT:

Ms Duarte

SECOND APPLICANT:

Mr Tolman

RESPONDENT:

Mr Morse

FILE NUMBER:

SYC

737

2014

APPEAL NUMBER:

2018

DATE DELIVERED:

13 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

5 April 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

1 December 2017

LOWER COURT MNC:

[2017] FamCA 1039

REPRESENTATION

FOR THE FIRST AND SECOND APPLICANTS:

Ms Duarte in person

COUNSEL FOR THE RESPONDENT:

Ms Kennedy

SOLICITOR FOR THE RESPONDENT:

Slater & Gordon Lawyers

Orders

Ms Duarte (“the first appellant”) and Mr Tolman (“the second appellant”) are granted an extension of time in which to seek a review of the registrar’s orders of 27 February 2018.
The draft Application in an Appeal seeking review of the orders made on 27 February 2018 and the affidavit of Ms Duarte dated 14 March 2018 are taken to have been filed on 5 April 2018 and heard with the application for extension of time. Any rules which impede such a course are dispensed with pursuant to Rule 1.12 of the Family Law Rules 2004 (Cth).
The orders and directions made on 27 February 2018 are vacated and in lieu the following orders and directions are made:
1.It is noted that the first appellant and the second appellant (“the appellants”) contend that this appeal involves matters arising under the Constitution or involves its interpretation and that same are genuine issues in this appeal.

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 DUARTE & MORSE

Details

AGLC: DUARTE & MORSE [2018] FamCAFC 69
Case: [2018] FamCAFC 69
Decision Date: 13 April 2018

CaseChat Overview and Summary

Ms Duarte and Mr Morse were involved in a family law matter, and Ms Duarte and Mr Tolman sought to appeal the registrar's orders from 27 February 2018. They filed an application for an extension of time to lodge the appeal, arguing that the delay in filing was insignificant. The appeal was heard in the Family Court of Australia.

The central legal issues revolved around the power of the Court and its registrars to issue notices to the Attorneys-General under section 78B of the Judiciary Act 1903 (Cth). The appellants questioned whether the Court had the authority to dictate specific dates for serving these notices. They also sought clarification on whether procedural orders provided adequate timeframes for filing and serving documents, and whether the registrar should have allowed for a Notice to Produce. The appellants argued that Notices to Produce are an interlocutory process unsuitable for an appeal context. They further contended that the Court could not provide an advisory opinion on these matters.

The Court granted the application for an extension of time, finding the delay to be insignificant. However, it dismissed the application for a review of the registrar's orders. The Court clarified that it could not provide an advisory opinion on the powers of the Court or its registrars. The Court also noted that Notices to Produce were not appropriate for an appeal process. Consequently, the draft Application in an Appeal and the affidavit of Ms Duarte were taken to have been filed on 5 April 2018 and heard with the application for an extension of time. Extensions of time and the length of the parties' Summaries of Argument were granted.

The Court vacated the orders and directions made on 27 February 2018, replacing them with new orders and directions. Ms Duarte and Mr Tolman were granted an extension of time to seek a review of the registrar's orders, and any procedural impediments to filing the appeal were dispensed with.

Orders

Orders of the court

Ms Duarte (“the first appellant”) and Mr Tolman (“the second appellant”) are granted an extension of time in which to seek a review of the registrar’s orders of 27 February 2018.

The draft Application in an Appeal seeking review of the orders made on 27 February 2018 and the affidavit of Ms Duarte dated 14 March 2018 are taken to have been filed on 5 April 2018 and heard with the application for extension of time. Any rules which impede such a course are dispensed with pursuant to Rule 1.12 of the Family Law Rules 2004 (Cth).

The orders and directions made on 27 February 2018 are vacated and in lieu the following orders and directions are made:

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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