Lander & Bradbury - [2022] FedCFamC1A 189

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Lander & Bradbury [2022] FedCFamC1A 189

Appeal from: Bradbury & Lander [2022] FedCFamC1F 548

Appeal number: NAA 189 of 2022

File number: CAC 239 of 2017

Judgment of: REES J

Date of judgment: 18 November 2022

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an adjournment of the appeal – Where the applicant failed to comply with procedural orders – Where the applicant seeks an adjournment to secure legal representation – Where it is unlikely that the respondent would be any better prepared if an adjournment is granted – Application dismissed – Costs

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.45

Number of paragraphs: 20

Date of hearing: 18 November 2022

Place: Sydney (via Videolink)

Counsel for the Applicant: Ms Beck

Solicitor for the Applicant: Farrar Gesini Dunn

Solicitor for the Respondent: Ms Shavaiz, Infinity Legal

Independent Children's Lawyer: Mary Burgess (Submitting notice filed)
ORDERS

NAA 189 of 2022
CAC 239 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS LANDER

Applicant

AND:
MR BRADBURY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

REES J

DATE OF ORDER:

18 November 2022

THE COURT ORDERS THAT:
1.The Application in an Appeal filed 14 November 2022 be dismissed.
2.Within 30 days of the date of this order, the applicant pay the respondent’s costs of the application in the sum of $1,000.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Lander & Bradbury has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:

Before me is an application by the appellant to adjourn an appeal that is fixed for hearing on Tuesday 22 November 2022 on the basis that she has not been able to secure legal representation for the conduct of the appeal or to comply with the directions made for the preparation of the appeal.
The application is opposed by the respondent. The Independent Children’s Lawyer has filed a Submitting Notice on 25 October 2022 and does not seek to be heard.
The Notice of Appeal was filed on 30 August 2022. The applicant was not represented and she prepared the document.
On 17 September 2022 the applicant was advised 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 Lander & Bradbury

Details

AGLC: Lander & Bradbury [2022] FedCFamC1A 189
Case: [2022] FedCFamC1A 189
Decision Date

CaseChat Overview and Summary

In the case of Lander & Bradbury, the Federal Circuit and Family Court of Australia dealt with an application for an adjournment of an appeal. The appellant, Ms Lander, sought to adjourn the appeal scheduled for hearing on 22 November 2022, on the basis that she had not been able to secure legal representation or comply with procedural orders for the preparation of the appeal. The respondent, Mr Bradbury, opposed the application, and the Independent Children’s Lawyer did not seek to be heard. Ms Lander's Notice of Appeal was filed on 30 August 2022, and she prepared the document herself. Despite being advised that the appeal would be listed on 22 November 2022 and given procedural orders, including filing a Summary of Argument by 19 October 2022, Ms Lander did not file her Summary of Argument. Instead, she filed an Amended Notice of Appeal on 21 October 2022, prepared by herself. The respondent filed his Summary of Argument and List of Authorities on 4 November 2022. Ms Lander's application to adjourn the appeal was filed on 14 November 2022, supported by an affidavit stating that she had instructed solicitors and briefed counsel for the appeal, though it appears these solicitors did not file an appearance or any documents on her behalf. She also deposed that she received a draft Summary of Argument on 19 October 2022 but did not file it, as it did not cover all grounds in her Amended Notice of Appeal. Ms Lander instructed her current solicitors on 27 October 2022, who briefed counsel on 31 October 2022. However, there is no evidence that Ms Lander's solicitors have briefed alternate counsel or otherwise prepared for the hearing since 1 November 2022.

The court found that Ms Lander had ample time to prepare her Summary of Argument and had not done so. Given the similarities to her preparation for the substantive hearing, the court could not have confidence that an adjournment would result in better preparation. The application to adjourn the appeal was dismissed, and Ms Lander was ordered to pay the respondent's costs of the application in the sum of $1,000 within 30 days of the date of the order.

Orders