Leary and Harman - [2017] FamCAFC 87

FAMILY COURT OF AUSTRALIA

LEARY & HARMAN

[2017] FamCAFC 87

FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – where the delay in receiving a sealed copy of the orders was outside of the control of the applicant mother – where there is an absence of prejudice to the father should leave be granted – where if the asserted considerations were not taken into account a recognised category of discretionary error may be established – where the mother has filed a fresh application in a case for interim parenting orders – where the mother has deposed to new evidence applicable to that application – where the application is to be heard within a month – where the proposed appeal would not be heard before the November sittings – where the proposed appeal lacks utility – where the application for an extension of time to file the Notice of Appeal is dismissed.

Family Law Act 1975 (Cth) ss 94AA(1), 94(2D)(e)
Family Law Regulations 1984 (Cth) regs 15A(1)(a), 15A(2)
Family Law Rules 2004 (Cth) rr 1.14(1), 1.14(2), 1.14(3)

Bant & Clayton [2014] FamCAFC 108
Chong & Chong [2016] FamCAFC 211
Gallo v Dawson (1990) 93 ALR 479
House v The King (1936) 55 CLR 499
Joshua & Joshua (1997) FLC 92-767
Lenova & Lenova (Costs) [2011] FamCAFC 141
Manotis & Manotis and Ors (No 2) [2016] FamCAFC 232

Tormsen & Tormsen (1993) FLC 92-392

APPLICANT:

Ms Leary

RESPONDENT:

Mr Harman

FILE NUMBER:

BRC

12383

2016

APPEAL NUMBER:

2017

DATE DELIVERED:

28 April 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

24 April 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 February 2017

LOWER COURT MNC:

[2017] FCCA 553

REPRESENTATION

FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Drysdale

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim

Orders

The Application in an Appeal filed 15 March 2017 is dismissed.
Each party bear his or her own costs.
Service of the wife’s Application in a Case filed 20 April 2017 upon the solicitors for the father be deemed effected by the provision of a copy of the same during the hearing of this application on 24 April 2017.

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 Leary & Harman 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 BRISBANE

Appeal Number: NA 10 of 2017
File Number: BRC 12383 of…

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 Leary and Harman

Details

AGLC: Leary and Harman [2017] FamCAFC 87
Case: [2017] FamCAFC 87
Decision Date: 28 April 2017

CaseChat Overview and Summary

The case before the court involved Leary and Harman, who were engaged in a dispute related to family law matters. The application in appeal was filed on 15 March 2017, and the hearing took place on 24 April 2017. The wife had filed an application in a case on 20 April 2017, which was to be served upon the father’s solicitors. The court had to decide whether the service of the wife’s application was effective and the costs associated with the proceedings.

The primary legal issue before the court was whether the service of the wife's application in a case was properly effected. The court needed to determine if the provision of a copy of the application during the hearing constituted valid service under the relevant rules and procedures. Additionally, the court had to decide on the allocation of costs between the parties involved.

In its reasoning, the court concluded that the service of the wife's application in a case was deemed effective as a copy was provided during the hearing. The court found that the provision of a copy during the hearing satisfied the requirements for service. Regarding the costs, the court ruled that each party should bear their own costs. The court’s decision was based on the circumstances of the case and the applicable legal principles.

The orders issued by the court were that the application in appeal filed on 15 March 2017 was dismissed. Each party was to bear their own costs. Furthermore, the court deemed the service of the wife’s application in a case effective based on the provision of a copy during the hearing. These orders were subject to formal entry in the court’s records.

Orders

Orders of the court

The Application in an Appeal filed 15 March 2017 is dismissed.

Each party bear his or her own costs.

Service of the wife’s Application in a Case filed 20 April 2017 upon the solicitors for the father be deemed effected by the provision of a copy of the same during the hearing of this application on 24 April 2017.

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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