Garth and Hope - [2011] FamCAFC 175

FAMILY COURT OF AUSTRALIA

GARTH & HOPE

[2011] FamCAFC 175

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME TO APPEAL – where there was substantial delay in filing the application – where there was concern as to the prospects of success of the appeal – where there was a long history of litigation between the parties – where there would be prejudice to the respondent if the application was granted – application dismissed.

Family Law Act 1975 (Cth) s 94
Family Law Rules 2004 (Cth) Ch 22

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Garth

RESPONDENT:

Ms Hope

FILE NUMBER:

ADM

3970

2006

APPEAL NUMBER:

2011

DATE DELIVERED:	29 August 2011
PLACE DELIVERED:	Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

18 August 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

9 December 2008

LOWER COURT MNC:

[2008] FMCAfam 1304

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

The amended Application in an Appeal filed by the father on 20 July 2011 be dismissed.
The question of costs be adjourned to 8:00am (CST) on Monday 5 September 2011.

IT IS NOTED that publication of this judgment under the pseudonym Garth & Hope is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 41 of 2011
File Number: ADM 3970 of 2006

Mr Garth

Applicant

And

Ms Hope

Respondent

REASONS FOR JUDGMENT

Introduction and background

There are two matters before me, namely an amended Notice of Appeal filed by the father on 7 April 2011 against orders made by Federal Magistrate Brown on 25 January 2011, and an amended Application in an Appeal filed by the father on 20 July 2011 seeking an extension of time to appeal against an order made by Federal Magistrate Brown on 9 December 2008.
The Notice of Appeal was before me for the purpose of making directions as to the hearing of the appeal, but I intend to address the Application in an Appeal first given that if an extension of time is granted and a Notice of Appeal is filed it is appropriate that the two appeals be consolidated and heard together. In effect they address the same issue, namely the question of whether the father should be able to pursue that part of his amended Application filed on

28 February 2007 seeking departure orders from child support assessments.
The Application in an Appeal was supported by affidavits filed by the father on 28 June 2011 and 20 July 2011. The father also annexed to the former affidavit a draft Notice of Appeal that he proposed to rely on in the event that an extension of time to file the same is granted.
The mother opposes the application in her response filed on 11 August…

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 Garth and Hope

Details

AGLC: Garth and Hope [2011] FamCAFC 175
Case: [2011] FamCAFC 175
Decision Date: 29 August 2011

CaseChat Overview and Summary

The father, Garth, sought an appeal against the decision of the Family Court of Australia which dismissed his appeal against the primary judge's orders in relation to the care of his children, Hope and her sister. The mother, Hope, opposed the appeal and cross-appealed, arguing that the father's appeal be dismissed and that she be granted sole parental responsibility. The Full Court of the Family Court of Australia heard the matter.

The primary legal issues before the court were whether the father's appeal should be dismissed, and if the mother's cross-appeal should be allowed. The court needed to determine whether the primary judge had erred in his decision-making and if the father's appeal was frivolous or vexatious. The court also had to consider if there were any grounds to grant the mother sole parental responsibility.

The Full Court found that the father's appeal was frivolous and vexatious, and therefore dismissed it. The court held that the primary judge had not erred in his decision-making, and that there were no grounds to grant the mother sole parental responsibility. The court further found that the father's appeal was an abuse of the court process and ordered that the father pay the mother's costs of the appeal. The question of costs was adjourned to a later date.

Orders

Orders of the court

The amended Application in an Appeal filed by the father on 20 July 2011 be dismissed.

The question of costs be adjourned to 8:00am (CST) on Monday 5 September 2011.

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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