Janome & Janome - [2022] FedCFamC1A 94

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Janome & Janome [2022] FedCFamC1A 94

Appeal from: Janome & Janome [2022] FedCFamC1F 90

Appeal number(s): NAA 55 of 2022

File number(s): NCC 104 of 2017

Judgment of: ALDRIDGE J

Date of judgment: 16 June 2022

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks that the appeal hearing be vacated and to grant an extension of time to file documents – Where the basis of the application is that the appellant has been refused legal aid and there is an appeal against that refusal which is yet to be determined – Where the grounds of appeal should properly be considered and are not futile – No suggestion that the appellant is intending to delay proceedings – No special circumstances that prevent the Court from granting the adjournment – Orders made vacating the appeal hearing and extension of time granted to file documents – Application otherwise dismissed.

Legislation:
Family Law Act 1975 (Cth) s 68B

Judiciary Act 1903 (Cth) s 79

Legal Aid Commission Act 1979 (NSW) ss 56, 57Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22

Cases cited:
Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139

Dacich v Director of Public Prosecutions (No 1) [2020] NSWCA 297

Rowell & Keogh (2011) 45 Fam LR 157; [2011] FamCAFC 74

Number of paragraphs: 22

Date of hearing: 16 June 2022

Place: Sydney (via video link)

Solicitor for the Applicant: Peter Jurd Lawyers

The Respondent: Self-represented litigant

Solicitor for the Independent Children’s Lawyer: Did not participate

ORDERS

NAA 55 of 2022
NCC 104 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS JANOME

Applicant

AND:
MR JANOME

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

16 JUNE 2022

THE COURT ORDERS THAT:
1.The time in which the applicant may file the digital transcript with the National Appeal Registry and serve the respondent and the Independent Children’s Lawyer with it and file her Summary of Argument and List of Authorities is extended up to 4.30 pm on 26 August 2022.
2.The time in which the respondent is to file his Summary of Argument and List of Authorities is extended up to and including 9 September 2022.
3.Pursuant to r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the appeal will be taken to be abandoned if the applicant fails to file the digital transcript by the due date. If the applicant seeks an extension of time for filing of the digital transcript, such extension should be sought with the written consent of each other party, or if such consent is not forthcoming, by filing an Application in an Appeal, with supporting affidavit, seeking such extension of time, prior to 4.30pm on the due date.
4.The hearing date of the appeal listed for 27 June 2022 is vacated.

Note:…

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

AGLC: Janome & Janome [2022] FedCFamC1A 94
Case: [2022] FedCFamC1A 94
Decision Date: 16 June 2022

CaseChat Overview and Summary

The applicant, Ms Janome, appealed against certain orders made by the Family Court of Australia in a parenting case. The respondent, Mr Janome, opposed the appeal, and the Independent Children’s Lawyer was also involved. The applicant filed an application seeking an adjournment of the appeal hearing and an extension of time to file the digital transcript and other documents. The basis of the application was that the applicant had been refused legal aid, and an appeal against that refusal was yet to be determined. The applicant argued that the appeal should not proceed until the outcome of the legal aid appeal was known.

The court considered the application and the arguments presented by both parties. The court found that the applicant's grounds of appeal were valid and not futile, and that there was no suggestion that the applicant intended to delay the proceedings. The court also noted that there were no special circumstances that would prevent the granting of the adjournment. Therefore, the court decided to vacate the appeal hearing and grant the applicant an extension of time to file the necessary documents. The court emphasised that the appeal would be deemed abandoned if the applicant failed to file the digital transcript by the new due date.

The court made several orders in relation to the application. Firstly, the court extended the time in which the applicant could file the digital transcript with the National Appeal Registry and serve it on the respondent and the Independent Children’s Lawyer, as well as file her Summary of Argument and List of Authorities, up to 4.30 pm on 26 August 2022. Secondly, the court extended the time in which the respondent could file his Summary of Argument and List of Authorities up to and including 9 September 2022. Thirdly, the court ordered that the appeal hearing, which was listed for 27 June 2022, would be vacated. Finally, the court warned that if the applicant sought a further extension of time for filing the digital transcript, such extension should be sought with the written consent of each other party or, if such consent was not forthcoming, by filing an Application in an Appeal, with supporting affidavit, seeking such extension of time, prior to 4.30pm on the due date. The form of the order was subject to the entry in the Court’s records.

Orders

Orders of the court

NAA 55 of 2022

NCC 104 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS JANOME

Applicant

AND:

MR JANOME

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

16 JUNE 2022

THE COURT ORDERS THAT:

1. The time in which the applicant may file the digital transcript with the National Appeal Registry and serve the respondent and the Independent Children’s Lawyer with it and file her Summary of Argument and List of Authorities is extended up to 4.30 pm on 26 August 2022.

2. The time in which the respondent is to file his Summary of Argument and List of Authorities is extended up to and including 9 September 2022.

3. Pursuant to r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the appeal will be taken to be abandoned if the applicant fails to file the digital transcript by the due date. If the applicant seeks an extension of time for filing of the digital transcript, such extension should be sought with the written consent of each other party, or if such consent is not forthcoming, by filing an Application in an Appeal, with supporting affidavit, seeking such extension of time, prior to 4.30pm on the due date.

4. The hearing date of the appeal listed for 27 June 2022 is vacated.

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).

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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NAA 55 of 2022 NCC 104 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS JANOME Applicant
AND:	MR JANOME Respondent
INDEPENDENT CHILDREN’S LAWYER

Appeal from:		Janome & Janome [2022] FedCFamC1F 90
Appeal number(s):		NAA 55 of 2022
File number(s):	NCC 104 of 2017
Judgment of:	ALDRIDGE J
Date of judgment:	16 June 2022
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks that the appeal hearing be vacated and to grant an extension of time to file documents – Where the basis of the application is that the appellant has been refused legal aid and there is an appeal against that refusal which is yet to be determined – Where the grounds of appeal should properly be considered and are not futile – No suggestion that the appellant is intending to delay proceedings – No special circumstances that prevent the Court from granting the adjournment – Orders made vacating the appeal hearing and extension of time granted to file documents – Application otherwise dismissed.
Legislation:	Family Law Act 1975 (Cth) s 68B Judiciary Act 1903 (Cth) s 79 Legal Aid Commission Act 1979 (NSW) ss 56, 57Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22
Cases cited:	Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139 Dacich v Director of Public Prosecutions (No 1) [2020] NSWCA 297 Rowell & Keogh (2011) 45 Fam LR 157; [2011] FamCAFC 74
Number of paragraphs:	22
Date of hearing:	16 June 2022
Place:	Sydney (via video link)
Solicitor for the Applicant:	Peter Jurd Lawyers
The Respondent:	Self-represented litigant
Solicitor for the Independent Children’s Lawyer:	Did not participate

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	16 JUNE 2022