DUARTE & MORSE - [2017] FamCAFC 158

FAMILY COURT OF AUSTRALIA

DUARTE & MORSE

[2017] FamCAFC 158

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the appeal was deemed abandoned after the appellant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Merits of the appeal – Where it would be futile to extend time – Application dismissed.

Family Law Act 1975 (Cth) ss 67Z, 69ZN
Family Law Rules 2004 (Cth) rr 2.04D, 7.04, 22.13, Schedule 2

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

APPLICANT:

Ms Duarte

RESPONDENT:

Mr Morse

FILE NUMBER:

SYC

737

2014

APPEAL NUMBER:

2017

DATE DELIVERED:

15 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

1 August 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 May 2017

LOWER COURT MNC:

[2017] FamCA 350

REPRESENTATION

THE APPLICANT:	In person
COUNSEL FOR THE RESPONDENT:	Ms Spain

SOLICITOR FOR THE RESPONDENT:

Slater & Gordon Lawyers

Orders

The application to reinstate Appeal EA 64 of 2017 against the orders of Le Poer Trench J made on 16 May 2017 is dismissed.

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 Duarte & Morse 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).

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

Appeal Number: EA 64 of 2017
File Number: SYC 737 of 2014

Ms Duarte

Applicant

and

Mr Morse

Respondent

REASONS FOR JUDGMENT

On 16 May 2017 Le Poer Trench J made orders dismissing the Applications in a Case filed by Ms Duarge (“the applicant”) on 1 October 2014 and

11 December 2014.
The orders made were in relation to parenting proceedings between the applicant and Mr Morse (“the respondent”), concerning the parties’ three children born 3 August 2006, 21 July 2010 and 21 October 2012. As recorded in his Honour’s reasons the applications relevantly sought the following orders:
Restoration of former orders made 24th March, 2014, by His Honour Justice Le Pour [sic] Trench
Seeking Certiorari writ to quash “Form 4” filed 12th June, 2014, by [the then Independent Children’s Lawyer]; or, in the alternative, seeking a declaration of invalidity of “Form 4” filed 12 June, 2014, by [the then Independent Children’s Lawyer]
Seeking Certiorari writ to quash “Form 4” filed 13th June, 2014, by [the respondent]; or in the alternative, seeking declaration of invalidity of “Form 4”…

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 [2017] FamCAFC 158
Case: [2017] FamCAFC 158
Decision Date: 15 August 2017

CaseChat Overview and Summary

The matter of Duarte & Morse involved an application to reinstate an appeal against a decision made by Le Poer Trench J on 16 May 2017. The applicants sought to overturn the original decision, which had significant implications for their case. The Federal Court of Australia was tasked with determining whether the appeal should be reinstated.

The court had to decide whether the applicants' reasons for seeking reinstatement of the appeal were sufficient. This involved examining whether there were grounds for dissatisfaction with the earlier decision and whether the applicants had provided compelling reasons for the appeal to proceed. The central issue was whether the applicants had demonstrated that the original decision contained an error of law or a significant procedural irregularity.

The court carefully considered the applicants' submissions and found that they did not meet the necessary threshold for reinstatement. The applicants failed to provide compelling reasons to justify overturning the original decision. The court concluded that there was no merit in the application to reinstate the appeal, and the orders made by Le Poer Trench J on 16 May 2017 were upheld.

Orders

Orders of the court

The application to reinstate Appeal EA 64 of 2017 against the orders of Le Poer Trench J made on 16 May 2017 is dismissed.

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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