Jackson & Cameron - [2016] FamCAFC 275

FAMILY COURT OF AUSTRALIA

JACKSON & CAMERON AND ANOR

[2016] FamCAFC 275

FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file appeal books – Where the applicant did not inform the court when the appeal books could be ready – Where the applicant may not have the capacity to prosecute the appeal – Where consideration must be given of the need to protect the child from further uncertainty – Where the appeal grounds are unlikely to enjoy success – Application dismissed – Where by virtue of the application for an extension of time being dismissed the appeal is deemed abandoned pursuant to r 22.21 of the Family Law Rules 2004 (Cth).

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 22.21

Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Jorgensen v Slater & Gordon Pty Ltd [2009] VSCA 39

APPLICANT:

Mr Jackson

FIRST RESPONDENT:	Ms Cameron
SECOND RESPONDENT:	Ms Jackson

INDEPENDENT CHILDREN’S LAWYER:

Delaney Lawyers

FILE NUMBER:

SYC

2701

2012

APPEAL NUMBER:

2016

DATE DELIVERED:

30 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

29 November 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 December 2015

LOWER COURT MNC:

[2015] FCCA 3410

REPRESENTATION

THE APPLICANT:

In person (by telephone)

SOLICITOR FOR THE FIRST

RESPONDENT:

Mr Namisnyk of Abrams Turner Whelan Family Lawyers (by telephone)

THE SECOND RESPONDENT:

In person (by telephone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Hearl (by telephone)

Orders

The Application in an Appeal filed on 18 October 2016 is dismissed.

NOTATION

A.It is noted that by operation of r 22.21 of the Family Law Rules 2004 (Cth) the appeal is deemed abandoned.

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 Jackson & Cameron and Anor 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 8 of 2016
File Number: SYC 2701 of 2012

Mr Jackson

Applicant

and

Ms Cameron

First respondent

and

Ms Jackson
Second respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 18 December 2015 Judge Kemp made parenting orders concerning the child B, born in 2003, the child of Ms Cameron (“the mother”) and Mr Jackson (“the father”). The child’s paternal grandmother, Ms Jackson, was a party to those proceedings.
His Honour ordered that the child live with the mother, and that the mother have sole parental responsibility for the child,…

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.

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Details

Case: [2016] FamCAFC 275
Decision Date

CaseChat Overview and Summary

The Family Court of Australia was asked to decide an application for an extension of time in which to file appeal books. The appeal concerned parenting orders made by the Federal Circuit Court of Australia. The father, Mr Jackson, sought an extension of time to file appeal books in relation to an appeal against the parenting orders. The mother, Ms Cameron, and the paternal grandmother, Ms Jackson, opposed the application. The court was required to consider whether the father could show any prospects of success in the appeal, and whether the child’s welfare would be best served by the grant or refusal of the extension. The court considered the father’s health and capacity to prosecute the appeal, and the trial judge’s reasons for refusing the father’s application for parenting orders. The court found that the father’s appeal was unlikely to enjoy success, and that any delay in the proceedings would cause further uncertainty and anxiety for the child. The court dismissed the application for an extension of time, and the appeal was deemed abandoned.

The court held that the father’s appeal was unlikely to enjoy success, and that the child’s welfare would be best served by the refusal of the extension. The court noted that the father had a history of non-compliance with court orders and had failed to provide any submissions to the trial judge. The court also considered the trial judge’s reasons for refusing the father’s application for parenting orders, which highlighted the father’s lack of insight into his mental health issues and his potential to cause emotional harm to the child. The court found that the father’s appeal was not arguable and that to grant an extension of time would be futile. The court also noted that the child had already experienced uncertainty and anxiety due to the father’s inconsistent and irregular attempts to communicate with the child. The court held that any further delay in the proceedings would only serve to exacerbate the child’s distress and uncertainty. The court dismissed the application for an extension of time, and the appeal was deemed abandoned.

Orders