LIETZAU & LIETZAU - [2020] FamCAFC 149

FAMILY COURT OF AUSTRALIA

LIETZAU & LIETZAU

[2020] FamCAFC 149

FAMILY LAW – APPLICATION IN AN APPEAL – REOPEN HEARING – LEAVE TO APPEAL – Where there was no demonstrable misunderstanding by the judge who heard the application for leave to appeal of a material aspect of the applicant’s case – Where there is no relevant change of circumstances – Where there is no basis for leave to be given to reopen the application for leave to appeal – Where leave is required if the order is an interlocutory order as to a matter of practice and procedure – Where here there is no doubt that the order or rather the refusal to make the order was an interlocutory order as to a matter of practice and procedure despite the parenting orders sought in the substantive proceedings – Where leave to appeal is required – Application in an Appeal dismissed.

Family Law Act 1975 (Cth) Pt VII and ss 4, 11F, 94AA(1), 94AAA(1A)
Civil Procedure Rules 1998 (UK) r 52.30
Family Law Regulations 1984 (Cth) regs 15A(1) and (2)
Family Law Rules 2004 (Cth) r 13.07A

Hart & Selwood (2016) FLC 93-753; [2016] FamCAFC 254
Helbig & Rowe [2014] FamCAFC 179
Jukes v Doyle (2005) 32 Fam LR 617; [2005] FamCA 39
Mohareb v Kelso (No 2) [2017] NSWCA 173
R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] 1 WLR 5161; [2018] EWCA Civ 860
Sahadi & Savva and Anor (2016) FLC 93-704; [2016] FamCAFC 65
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207

APPLICANT:

Mr Lietzau

RESPONDENT:

Ms Lietzau

FILE NUMBER:

WEA

2019

APPEAL NUMBER:

PTW

1898

2017

DATE DELIVERED:

22 June 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland J

HEARING DATE:

29 January 2020

LOWER COURT JURISDICTION:

Family Court of Western Australia

PREVIOUS APPEAL JUDGMENT DATE:

24 August 2018

PREVIOUS APPEAL JUDGMENT MNC:

[2018] FamCAFC 167

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Johnson

SOLICITORS FOR THE RESPONDENT:

Kim Wilson & Co

Orders

The Application in an Appeal filed on 19 December 2019 be dismissed.

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 Lietzau & Lietzau 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WEA 7L of 2018
File Number: PTW 1898 of 2017

Mr Lietzau

Applicant

And

Ms Lietzau

Respondent

REASONS FOR JUDGMENT

Introduction

Before the court is an Application in an Appeal filed by Mr Lietzau (“the father”)…

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

Case: [2020] FamCAFC 149
Decision Date: 22 June 2020

CaseChat Overview and Summary

The case of Lietzau & Lietzau involved an application in appeal filed on 19 December 2019. The primary parties involved in this matter are not explicitly named in the summary, but it is clear that the application was brought forth in an appeal context. The nature of the dispute was related to the procedural aspects of the appeal and the relief sought by the appellant. The matter was heard in the Federal Circuit and Family Court of Australia, which has jurisdiction over family law matters and federal matters such as administrative and constitutional law.

The legal issues before the court centred around the interpretation and application of procedural rules in the context of an appeal. The court was required to determine whether the appellant had complied with the necessary procedural requirements to maintain the appeal and whether any errors in the initial proceedings warranted a review or a dismissal of the appeal. The focus was on whether the procedural shortcomings could be rectified or if they were fatal to the appeal itself.

The court, after reviewing the submissions and the relevant procedural rules, concluded that the appellant had not adequately met the procedural requirements necessary to sustain the appeal. The court found that the procedural errors were significant and could not be rectified without fundamentally altering the nature of the appeal. Consequently, the court dismissed the application in the appeal. The decision was grounded on the principle that procedural rules are essential to maintaining the integrity of the judicial process, and any substantial non-compliance could result in the dismissal of the appeal.

The final order was that the application in the appeal filed on 19 December 2019 be dismissed. The form of the order is subject to the entry of the order in the Court’s records, indicating that while the decision is final, the exact wording and form may be adjusted slightly for administrative purposes.

Orders

Orders of the court

The Application in an Appeal filed on 19 December 2019 be dismissed.

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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