Elliott & Hopkins - [2023] FedCFamC1A 49

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Elliott & Hopkins [2023] FedCFamC1A 49

Appeal from: Hopkins & Elliott [2023] FedCFamC1F 167

Appeal number(s): NAA 83 of 2023

File number(s): SYC 5636 of 2021

Judgment of: ALDRIDGE J

Date of judgment: 17 April 2023

Catchwords: FAMILY LAW – APPEAL – Where the appeal was listed by the appeal judicial registrar for consideration of whether or not the appeal should be summarily dismissed – Appeal against orders granting sole occupation of a property to the respondent – Where the matters raised by the appellant at the hearing were not contained in the Notice of Appeal – Orders striking out the grounds of appeal in the Notice of Appeal and orders made for the appellant to file an Amended Notice of Appeal.

Number of paragraphs: 15

Date of hearing: 17 April 2023

Place: Sydney

The Appellant: Litigant in person

Solicitor for the Respondent: Parker Law
ORDERS

NAA 83 of 2023
SYC 5636 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS ELLIOTT

Appellant

AND:
MR HOPKINS

Respondent

order made by:

ALDRIDGE J

DATE OF ORDER:

17 april 2023

THE COURT ORDERS THAT:
1.The grounds of appeal contained in the Notice of Appeal filed on 5 April 2023 are struck out.
2.The appellant is granted leave to file an Amended Notice of Appeal within 14 days.
3.This consideration of the appeal will be adjourned for further hearing until 5 May 2023 at 10.00 am.
4.Costs are reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Elliott & Hopkins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:

The appeal has been listed by the appeal judicial registrar for consideration of whether or not the appeal should be summarily dismissed as being fundamentally misconceived. The appeal is against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) that granted sole occupation of a particular property (in which the appellant currently lives) to the respondent.
There are but two grounds of appeal which provide:
1.The judge erred in believing that there was an application before him when in fact it had been withdrawn by consent before [the registrar] on 31 January 2023;
2.The [appellant] was denied procedural fairness when the application which had been withdrawn was heard, without being given notice to prepare for the hearing, when she was unrepresented.
It is true indeed that there was…

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 Elliott & Hopkins

Details

AGLC: Elliott & Hopkins [2023] FedCFamC1A 49
Case: [2023] FedCFamC1A 49
Decision Date

CaseChat Overview and Summary

This appeal, originating from a decision made by the Federal Circuit and Family Court of Australia (Division 1), involves the appellant, Ms Elliott, and the respondent, Mr Hopkins. The primary issue at hand is the appeal against orders granting sole occupation of a specific property to Mr Hopkins. The appellant contends that the appeal should not be summarily dismissed, arguing that the grounds of appeal were not adequately represented in the initial Notice of Appeal.

The court was tasked with determining whether the grounds of appeal raised in the hearing were properly contained in the Notice of Appeal. The court found that the appellant's arguments during the hearing did not align with the grounds stated in the Notice of Appeal. Additionally, the court considered whether the appeal was fundamentally misconceived and whether the appellant had sufficient time to amend the Notice of Appeal. The court concluded that the appeal was not fundamentally misconceived but required an amended Notice of Appeal to properly address the issues.

Justice Aldridge struck out the grounds of appeal contained in the Notice of Appeal filed on 5 April 2023 and granted the appellant leave to file an Amended Notice of Appeal within 14 days. The consideration of the appeal was adjourned for further hearing until 5 May 2023 at 10.00 am, and costs were reserved. This decision highlights the importance of aligning the grounds of appeal with the Notice of Appeal and provides a clear path for the appellant to proceed with an amended Notice of Appeal.

Orders