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HEALEY & OSBOURNE

HEALEY & OSBOURNE

Case [2017] FamCAFC 185 7 September 2017

Appeal

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Civil Litigation & Procedure

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FAMILY COURT OF AUSTRALIA

HEALEY & OSBOURNE

[2017] FamCAFC 185

FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time in which to file a Notice of Appeal – Where the proposed appeal is from interim parenting orders – Where there is not a satisfactory explanation for the delay in filing the Notice of Appeal – Where the proposed grounds of appeal have low prospects of success – Where the father proposes to adduce further evidence on the appeal if the appeal goes ahead – Where the evidence is unlikely to be received by the Full Court in light of the principles in CDJ v VAJ (1998) 197 CLR 172 – Application dismissed – Father to pay the mother’s costs of the application.

Family Law Act 1975 (Cth) s 60CC

Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Gallo v Dawson (1990) 93 ALR 479
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Oswald & Karrington [2016] FamCAFC 152
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550
Sampson & Hartnett (No. 10) [2007] FamCA 1365
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT:

Mr Healey

RESPONDENT:

Ms Osbourne

FILE NUMBER:

NCC

258

2017

APPEAL NUMBER:

2017

DATE DELIVERED:

7 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

31 August 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 June 2017

LOWER COURT MNC:

[2017] FCCA 1277

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Harper

SOLICITOR FOR THE APPELLANT:

Byrnes Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Graham

SOLICITOR FOR THE RESPONDENT:

Tony Cox Lawyers

Orders

That the Application in an Appeal filed on 11 August 2017 is dismissed.
The Applicant is to pay the Respondent’s costs of the application as agreed or in default of agreement as assessed.

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 Healey & Osbourne 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 92 of 2017
File Number: NCC 258 of 2017

Mr Healey

Appellant

And

Ms Osbourne

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 11 August 2017 Mr Healey (“the father) seeks an extension of time in which to appeal against interim parenting orders made by Judge Middleton on 29 June 2017. The proceedings before his Honour concerned the children of…

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 HEALEY & OSBOURNE

Details

AGLC: HEALEY & OSBOURNE [2017] FamCAFC 185
Case: [2017] FamCAFC 185
Decision Date: 7 September 2017

CaseChat Overview and Summary

The matter in Healey & Osborne involved the applicant seeking to appeal against a decision rendered by a lower court. The specifics of the underlying case are not provided in the summary, but the appeal was dismissed by the court. The applicant had filed an appeal on 11 August 2017, which was subsequently denied. The court ordered that the applicant pay the respondent’s costs associated with the appeal application, either as agreed upon by the parties or, if no agreement could be reached, as assessed by the court. This ruling signifies the finality of the lower court's decision and reinforces the financial responsibility of the unsuccessful party in legal proceedings.

The central legal issue before the court was the validity and admissibility of the applicant's appeal. The court had to assess whether the grounds for appeal were sufficiently compelling to warrant a review of the lower court's decision. This involved a rigorous examination of the arguments presented by the applicant, the procedural correctness of the appeal application, and the overall merits of the case as determined by the initial court. The court's decision to dismiss the appeal suggested that it found no substantial error in the lower court's ruling that warranted an appellate review.

In dismissing the appeal, the court provided a reasoned explanation for its decision, which likely encompassed an analysis of the merits of the applicant's arguments and the procedural compliance of the appeal. The court's decision indicated a lack of sufficient grounds to overturn the lower court's decision, which may have included considerations of legal principles, precedents, and the specific facts of the case. The order for the applicant to cover the respondent's costs reflects the court’s stance on the appeal's lack of merit and reinforces the principle that unsuccessful litigants should bear the costs associated with their unsuccessful legal actions. The final orders, as noted, were subject to formal entry in the court's records.

Orders

Orders of the court

That the Application in an Appeal filed on 11 August 2017 is dismissed.

The Applicant is to pay the Respondent’s costs of the application as agreed or in default of agreement as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

HEALEY & OSBOURNE [2017] FamCAFC 185

Cases Citing This Decision

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Cases Cited

Healey and Osbourne [2017] FCCA 1277
Citation 1

…[2017] FCCA 1277…
Oswald & Karrington [2016] FamCAFC 152
Citation 2 (Para 16)

…entified that this was an application for a coercive order against the mother as to where she was to live. His Honour referred to Oswald & Karrington [2016] FamCAFC 152 and Sampson & Hartnett (No. 10) [2007] FamCA 1365. No doubt his Honour had in mind the following passage from Oswald : 16.It may be accepted, as it w…
Robinson Helicopter Co Inc v McDermott [2016] HCA 22
Citation 3 (Para 6)

…when dealing with grounds of appeal that seek to challenge findings of fact by a trial judge. In Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 the Court said: 43.The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court o…
McDermott v Robinson Helicopter Company Incorporated [2014] QCA 357
Citation 4 (Para 6)

…An appeals court is constrained when dealing with grounds of appeal that seek to challenge findings of fact by a trial judge. In Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 the Court said: 43.The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal…
Marvel & Marvel [2010] FamCAFC 101
Citation 5 (Para 5)

…of the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders”, quoting Marvel & Marvel (No. 2) [2010] FamCAFC 101 at [120].…
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Citation 6 (Para 1)

…to understand the basis of the decision and the extent to which their arguments have been understood and accepted: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59].…
Sampson & Hartnett (No 10) [2007] FamCA 1365
Citation 7 (Para 16)

…e order against the mother as to where she was to live. His Honour referred to Oswald & Karrington [2016] FamCAFC 152 and Sampson & Hartnett (No. 10) [2007] FamCA 1365. No doubt his Honour had in mind the following passage from Oswald : 16.It may be accepted, as it was in this case, that the Court has power to make…
Whisprun Pty Ltd v Dixon [2003] HCA 48
Citation 8 (Para 9)

…First, it is not necessary for a trial judge to refer to every piece of evidence: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447. Further, the fact that evidence has not been specifically referred to in the reasons does not mean that it has not been considered.…
CDJ v VAJ [1998] HCA 67
Citation 9 (Para 2)

…because he had not sought their production. It cannot be assumed therefore that the bank statements would be readily received in an appeal: CDJ v VAJ (1998) 197 CLR 172 (“ CDJ ”) at [114], [117]-[118] and [148].…
Gallo v Dawson [1990] HCA 30
Citation 10 (Para 2)

…The principles which apply to an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J said: … The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do…
Jess v Scott [1986] FCA 473
Citation 11 (Para 2)

…of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of…
Mitchelson v Mitchelson [1979] FCA 48
Citation 12 (Para 2)

…onsider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes , at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right…
[1965] 1 WLR 8 [1965] 1 WLR 8
Citation 13 (Para 2)

…that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some…
[1973] 2 NZLR 86 [1973] 2 NZLR 86
Citation 14 (Para 2)

…and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always n…
Vilenius v Heinegar (1962) 36 ALJR 200
Citation 15 (Para 2)

…ry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the appl…

Legislation Cited

Family Law Act 1975 (Cth) 60CC
2 mentions
Family Law Rules 2004 (Cth)
1 mention (from Para 2)