Lander & Bradbury (No 2) - [2022] FedCFamC1A 194

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Lander & Bradbury (No 2) [2022] FedCFamC1A 194

Appeal from: Bradbury & Lander [2022] FedCFamC1F 548

Appeal number: NAA 189 of 2022

File number: CAC 239 of 2017

Judgment of: ALSTERGREN CJ, REES & ALTOBELLI JJ

Date of judgment: 22 November 2022

Catchwords: FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Appeal from final parenting orders – Where appellant failed to comply with procedural orders made in the appeal – Where appellant failed to file Summary of Argument and List of Authorities – Where respondent applied for summary dismissal pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where appellant had been given several opportunities to comply with procedural orders – Where appellant was notified that the appeal may be dismissed – Where appellant indicated at the hearing that she sought to amend the Amended Notice of Appeal further – Where the Court is not properly apprised of the grounds relied upon – Where court orders must be complied with – Appeal dismissed – Appellant to pay respondent’s costs in a fixed sum.

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

Number of paragraphs: 14

Date of hearing: 22 November 2022

Place: Sydney

The Appellant: Litigant in person

Counsel for the Respondent: Mr Haddock

Solicitor for the Respondent: 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

Appellant

AND:
MR BRADBURY

Respondent

INDEPENDENT CHILDren’S LAWYER

order made by:

ALSTERGREN CJ, REES & ALTOBELLI JJ

DATE OF ORDER:

22 nOVEMBER 2022

THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 21 October 2022 be dismissed.
2.The appellant pay the respondent’s costs of the appeal in the sum of $8,534.33 which is to be deducted from the $40,000 ordered to be paid to the appellant pursuant to Order 12 of the orders made by the Honourable Justice Gill on 2 August 2022 in proceedings CAC 239 of 2017.

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 the pseudonyms Lander & Bradbury has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS…

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 (No 2)

Details

AGLC: Lander & Bradbury (No 2) [2022] FedCFamC1A 194
Case: [2022] FedCFamC1A 194
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Ms Lander, sought to appeal against final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1). The respondent, Mr Bradbury, sought the dismissal of the appeal for the appellant's failure to comply with procedural orders and to file a Summary of Argument and List of Authorities. The appeal was heard on 22 November 2022 before Alstegren CJ, Rees and Altobelli JJ. The court was required to decide whether the appeal should be dismissed under r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which allows for the dismissal of an appeal for non-compliance with procedural orders or reasonable diligence.

The court found that the appellant had been given multiple opportunities to comply with the procedural orders, but had failed to do so despite being notified of the potential consequences. The appellant did not file a Summary of Argument as required by the procedural orders and was warned multiple times that her appeal may be dismissed. The appellant also indicated at the hearing that she sought to amend the Amended Notice of Appeal further, which would have further delayed the proceedings. The court held that strict compliance with court orders was necessary to ensure a fair and just system of justice for all litigants, and that the appellant had failed to do so. Consequently, the appeal was dismissed.

The court ordered that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal in the sum of $8,534.33, which is to be deducted from the $40,000 ordered to be paid to the appellant pursuant to Order 12 of the orders made by the Honourable Justice Gill on 2 August 2022 in proceedings CAC 239 of 2017. The form of the order is subject to the entry in the Court’s records.

Orders