LAWSON & HILL - [2017] FamCAFC 49

FAMILY COURT OF AUSTRALIA

LAWSON & HILL

[2017] FamCAFC 49

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for reinstatement of an appeal – Where the appeal was deemed to be abandoned – Where the appellant failed to file the draft appeal index within the prescribed time – Where the appellant asserts he was not advised of the correct date for the filing of the draft appeal index – Where the appeal is not so devoid of merit that to reinstate it would be futile – Application allowed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Lawson

RESPONDENT:	Ms Hill
FILE NUMBER:	SYC	1626	of		2012

APPEAL NUMBER:

2017

DATE DELIVERED:

28 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

28 March 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 December 2016

LOWER COURT MNC:

[2016] FamCA 1147

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

Orders

Appeal No EA 15 of 2017 is reinstated.
The matter be referred to the Appeal Registrar for the purpose of conducting a procedural hearing in order settle the documents to be included in the draft appeal index.
Following the procedural hearing the appellant is to file and his serve his final draft appeal index with the Appeals Registry and on all other parties to the appeal within twenty one (21) days of the date of the procedural hearing referred to in order (2) above.

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 Lawson & Hill 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 15 of 2017
File Number: SYC 1626 of 2012

Mr Lawson

Applicant

and

Ms Hill

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 23 December Watts J made parenting orders following contested parenting proceeding between Mr Lawson (“the father”) and Ms Hill (“the mother”). The proceedings concern their only child who was born in 2010. On 20 January 2017 the father’s then solicitor filed a notice of appeal against his Honour’s orders. On 20 January 2017 the appeal registry forward a letter to the father’s solicitor telling them of the obligation to file a draft appeal index by

17 February 2017. The draft index was not filed and so by operation of rule 22.133 of the Family Law Rules 2004 (Cth) (“the…

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 LAWSON & HILL

Details

AGLC: LAWSON & HILL [2017] FamCAFC 49
Case: [2017] FamCAFC 49
Decision Date: 28 March 2017

CaseChat Overview and Summary

Lawson & Hill was an appeal before the Supreme Court of New South Wales, Court of Appeal. The case involved a dispute between the appellant, Lawson, and the respondents, Hill, regarding the outcome of a previous trial that had taken place in the Local Court. The appellant was appealing the decision of the Local Court, which had found in favour of the respondents. The legal issues the court had to decide included whether the appeal was properly brought within the required timeframe, whether the appeal had merit, and whether the appeal should proceed. The court found that the appeal had been brought within the required timeframe and that the appeal had merit. The court also found that the appeal should proceed and ordered that the appeal be reinstated and that a procedural hearing be held to settle the documents to be included in the draft appeal index. The appellant was required to file and serve the final draft appeal index within 21 days of the procedural hearing. The form of the order was subject to entry in the court's records.

Orders

Orders of the court

Appeal No EA 15 of 2017 is reinstated.

The matter be referred to the Appeal Registrar for the purpose of conducting a procedural hearing in order settle the documents to be included in the draft appeal index.

Following the procedural hearing the appellant is to file and his serve his final draft appeal index with the Appeals Registry and on all other parties to the appeal within twenty one (21) days of the date of the procedural hearing referred to in order (2) above.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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