HIGGINS & HIGGINS - [2014] FamCAFC 65

FAMILY COURT OF AUSTRALIA

HIGGINS & HIGGINS

[2014] FamCAFC 65

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL - reinstatement of abandoned appeal.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Clivery & Conway [2010] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Higgins

RESPONDENT:

Ms Higgins

FILE NUMBER:

SYC

5083

2010

APPEAL NUMBER:

106

2013

DATE DELIVERED::

25 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

25 March 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 June 2013

LOWER COURT MNC:

[2013] FCCA 549

REPRESENTATION

APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Deo

Orders

The appeal against the order of Judge Scarlett made on 18 June 2013 be reinstated.
The Appellant/Husband file and serve the appeal books in compliance with the procedural orders made on 21 November 2013 on or before 4pm on 23 May 2014.
The Appellant/Husband file and serve his Summary of Argument and List of Authorities with the Appeals Registrar on or before 4pm on 11 July 2014.
The Respondent/Wife file and serve her Summary of Argument and List of Authorities with the Appeals Registrar on or before 4pm on 8 August 2014.
Costs of the application to reinstate the appeal are reserved to the hearing of the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Higgins & Higgins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 106 of 2013
File Number: SYC 5083 of 2010

Mr Higgins

Appellant

and

Ms Higgins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 18 June 2013 Judge Scarlett made orders and delivered reasons in relation to property settlement proceedings between the parties Mr Higgins (“the husband”) and Ms Higgins (“the wife”).
On 29 July 2013, the husband lodged an appeal against those orders and a conditional stay of his Honour’s orders was granted on 18 March 2014.
Procedural orders for the preparation of the appeal were made on 21 November 2013 and the husband was ordered to file appeal books by 7 February 2014. He did not. By operation of rule 22.21 of the Family Law Rules, failure to file the appeal books by the ordered time resulted in the husband’s appeal being taken to be abandoned on 24 February 2014.
On 13 March 2014, the husband filed an application seeking that his appeal be reinstated and he filed an affidavit in support of that application. The husband was represented by solicitors during the hearing before the judge and those solicitors filed the notice of appeal. Relevant to the present issue, he said:
My then solicitors, Aitken Lawyers, filed an appeal on my behalf in late 2013. The appeal books were to be filed on 7 February 2014. I contacted Aitken Lawyers that day to confirm that…

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 HIGGINS & HIGGINS

Details

AGLC: HIGGINS & HIGGINS [2014] FamCAFC 65
Case: [2014] FamCAFC 65
Decision Date: 25 March 2014

CaseChat Overview and Summary

In the case of Higgins & Higgins, the dispute arose from a family law matter concerning the distribution of assets following the dissolution of a marriage. The matter was heard in the Family Court of Australia, with the appeal subsequently considered by the Full Court of the Family Court of Australia. The appeal pertained to an order made by Judge Scarlett on 18 June 2013. The Appellant/Husband contested the original decision and sought to appeal the order. The court was required to determine whether the appeal against the order made by Judge Scarlett should be reinstated, and if so, to set procedural timelines for the filing and serving of appeal books and associated documentation.

The central legal issues before the court involved the procedural requirements for reinstating an appeal and the appropriate timelines for filing and serving appeal-related documents. The court needed to balance the procedural obligations of both parties with the overarching objective of ensuring a fair and timely resolution of the appeal. The court examined the procedural orders issued on 21 November 2013 and assessed whether the Appellant/Husband had complied with these orders in a timely manner. Additionally, the court considered the necessity of establishing clear deadlines for the submission of summaries of argument and lists of authorities by both parties.

In its decision, the court determined that the appeal against the order made by Judge Scarlett should be reinstated. The court set specific deadlines for the Appellant/Husband to file and serve the appeal books, as well as for both parties to file and serve their respective summaries of argument and lists of authorities. The court emphasised the importance of adhering to procedural timelines to ensure the efficient progression of the appeal. The costs associated with the application to reinstate the appeal were reserved for determination at the hearing of the appeal itself.

Orders

Orders of the court

1. The appeal against the order of Judge Scarlett made on 18 June 2013 be reinstated.

2. The Appellant/Husband file and serve the appeal books in compliance with the procedural orders made on 21 November 2013 on or before 4pm on 23 May 2014.

3. The Appellant/Husband file and serve his Summary of Argument and List of Authorities with the Appeals Registrar on or before 4pm on 11 July 2014.

4. The Respondent/Wife file and serve her Summary of Argument and List of Authorities with the Appeals Registrar on or before 4pm on 8 August 2014.

5. Costs of the application to reinstate the appeal are reserved to the hearing of the appeal.

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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