Markwell and Ranwick & Anor (No.2) - [2020] FamCAFC 232

FAMILY COURT OF AUSTRALIA

MARKWELL & RANWICK AND ANOR (NO.2)

[2020] FamCAFC 232

FAMILY LAW – APPEAL – APPLICATION IN APPEAL – REINSTATEMENT – Appeal deemed abandoned – Proposed appeal concerns welfare of children - Failure to comply with timeframe for filing Draft Appeal Index – Application opposed by all other parties – Where some but not all proposed grounds of appeal doomed to fail – Where reinstatement of the appeal would not be unjust to the respondents – Application to reinstate granted.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Applications to expedite two appeals – Efficient use of court resources – Application granted.

Family Law Act 1975 (Cth) s 94(2D)(j)

Family Law Rules 2004 (Cth) rr 12.10A, 22.13, 22.44

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Markwell & Solberg and Anor (No.2) [2020] FCCA 2462
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Ms Markwell

FIRST RESPONDENT:

Mr Ranwick

SECOND RESPONDENT:

Mr Solberg

INDEPENDENT CHILDREN’S LAWYER:

Barker & Barker

FILE NUMBER:

CAC

1533

2014

APPEAL NUMBERS:	EAA	104	of	2020
EAA	125	of	2020

DATE DELIVERED:

18 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

9 September 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

30 June 2020 &
3 September 2020

LOWER COURT MNC:

[2020] FCCA 1751 &
[2020] FCCA 2462

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE FIRST RESPONDENT:

Evans Family Lawyers

COUNSEL FOR THE SECOND RESPONDENT:

Ms Christie SC

SOLICITOR FOR THE SECOND RESPONDENT:

Chamberlains Law Firm

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barker & Barker

Orders made 9 September 2020

That appeal EA 104 of 2020 be reinstated.
That appeals EA 104 of 2020 and EA 125 of 2020 be consolidated.
That the appeals be listed for hearing in December 2020 or as otherwise notified by the Eastern Appeals Registry.
That within fourteen (14) days the appellant file and serve an Amended Notice of Appeal in each of the appeals with properly articulated grounds of appeal.
If the appellant fails to file the appeal transcript and the appeal book as directed by the Eastern Appeals Registrar, the appeal date may be vacated.
That the costs of the applications will be costs in the appeal.

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 Markwell & Ranwick and Anor 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…

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 Markwell and Ranwick & Anor (No.2)

Details

AGLC: Markwell and Ranwick & Anor (No.2) [2020] FamCAFC 232
Case: [2020] FamCAFC 232
Decision Date: 18 September 2020

CaseChat Overview and Summary

The case of Markwell and Ranwick & Anor (No.2) involved an appeal in family law matters concerning the welfare of children. The original appeal was deemed abandoned due to the appellant's failure to comply with the required timeframes, including the filing of a Draft Appeal Index. The appellant subsequently applied for the reinstatement of the appeal and for an expedited hearing. The other parties opposed the application to reinstate the appeal.

The primary legal issues before the court were whether the appeal should be reinstated and, if so, whether it should be expedited. The court considered the grounds of appeal and whether some of them were bound to fail, as well as the potential impact on the respondents if the appeal were reinstated. The court also assessed the efficient use of court resources in deciding whether to expedite the appeals.

In granting the application to reinstate the appeal, the court noted that some, but not all, of the proposed grounds of appeal were likely to fail. However, the court found that the reinstatement of the appeal would not be unjust to the respondents, as the appeal primarily concerned the welfare of the children. The court also found that expediting the appeals would lead to an efficient use of court resources and granted the application to expedite the two appeals. The court ordered that the appeals be consolidated, listed for hearing in December 2020, and that the appellant file and serve an Amended Notice of Appeal within fourteen days with properly articulated grounds of appeal. The costs of the applications were to be costs in the appeal.

Orders

Orders of the court

Orders made 9 September 2020

1. That appeal EA 104 of 2020 be reinstated.

2. That appeals EA 104 of 2020 and EA 125 of 2020 be consolidated.

3. That the appeals be listed for hearing in December 2020 or as otherwise notified by the Eastern Appeals Registry.

4. That within fourteen (14) days the appellant file and serve an Amended Notice of Appeal in each of the appeals with properly articulated grounds of appeal.

5. If the appellant fails to file the appeal transcript and the appeal book as directed by the Eastern Appeals Registrar, the appeal date may be vacated.

6. That the costs of the applications will be costs in the appeal.

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 Markwell & Ranwick and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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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