May and Longley & Anor - [2016] FamCAFC 184

FAMILY COURT OF AUSTRALIA

MAY & LONGLEY AND ANOR

[2016] FamCAFC 184

FAMILY LAW – APPEAL – DISMISSAL – Where the respondents seek that the appellant’s Amended Notice of Appeal be summarily dismissed – Where the second part of the Amended Notice seeks to appeal certain paragraphs of the reasons for judgment of the trial judge and is therefore incompetent and must be dismissed – Where there is no ground of appeal against the order dismissing the application alleging contravention and that part of the appeal must be dismissed – Where the child the subject of the appeal was aged 17 years at the time of the filing of the Amended Notice – Where there is no utility in the appeal – Where s 96AA of the Family Law Act 1975 (Cth) applies – Where none of the grounds of appeal have a reasonable prospect of success and all are devoid of merit – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondents seek costs – Where written submissions are required – Orders made for the filing and serving of written submissions.

Family Law Act 1975 (Cth) – ss 70NBA and 96AA

Family Law Rules 2004 (Cth) – rr 11.02(1), 11.02(2)(a) and 22.45

Bennett and Bennett (1991) FLC 92-191
Lindon v The Commonwealth (1996) 136 ALR 251

APPELLANT:

Ms May

FIRST RESPONDENT:

Mr Longley

SECOND RESPONDENT:

Ms Mann

FILE NUMBER:

MLC

1151

2008

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

14 September 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

4 December 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

27 July 2015

LOWER COURT MNC:

[2015] FCCA 2252

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Levine

SOLICITOR FOR THE APPELLANT:

James McConvill & Associates

COUNSEL FOR THE RESPONDENTS:

Ms Carter

SOLICITOR FOR THE RESPONDENTS:

Pearce Webster Dugdales

Orders

The time to file the Amended Notice of Appeal be extended nunc pro tunc to 9 November 2015.
The Amended Notice of Appeal filed on 9 November 2015 be dismissed.
Within 21 days of the date of this order, the respondents file and serve written submissions in support of their applications:
(a)for the costs of and incidental to that part of the said Amended Notice of Appeal seeking to appeal against certain paragraphs of the reasons for judgment in relation to the order for costs made on 30 September 2015;
(b)for the costs of and incidental to the order made on 4 December 2015 dismissing the Amended Application in an Appeal filed on 2 December 2015; and
(c)for the costs of and incidental to the Application in an Appeal filed on 23 November 2015.
Within 14 days of the receipt of those written submissions the appellant file and serve written submissions in response.
Within seven days of the receipt of the written submissions in response the respondents file and serve written submissions in reply.

Note: The form of the order is subject to the entry 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 May and Longley & Anor

Details

AGLC: May and Longley & Anor [2016] FamCAFC 184
Case: [2016] FamCAFC 184
Decision Date: 14 September 2016

CaseChat Overview and Summary

The respondents in May and Longley & Anor sought the dismissal of an appeal filed by the appellant. The appeal was brought against an order made in a family law matter concerning a 17-year-old child. The respondents argued that the appeal was incompetent and devoid of merit. They sought an extension of time to file the Amended Notice of Appeal, the dismissal of the appeal, and costs. The appeal was before the Family Court of Australia.

The court had to determine whether the appeal was properly before the court and if it had any prospects of success. It was necessary to consider the timeliness of the appeal, the relevance of the grounds raised, and the utility of the appeal given the age of the child. The court also needed to decide if the appeal met the criteria for dismissal under section 96AA of the Family Law Act 1975.

The court held that the appeal was incompetent because the appellant sought to appeal certain paragraphs of the reasons for judgment, which is not permissible. The appeal against the order dismissing the application alleging contravention also had no ground. The court found that the appeal had no reasonable prospect of success, and the child's age further diminished its utility. The appeal was dismissed pursuant to section 96AA. The respondents' application for costs was granted, and written submissions were ordered to be filed and served by both parties.

The court made several orders, including extending the time to file the Amended Notice of Appeal nunc pro tunc to 9 November 2015, dismissing the appeal, and requiring the respondents to file written submissions for costs. The appellant was ordered to respond to these submissions, and the respondents were to file reply submissions. The form of these orders was subject to the entry of the order in the court's records.

Orders

Orders of the court

The time to file the Amended Notice of Appeal be extended nunc pro tunc to 9 November 2015.

The Amended Notice of Appeal filed on 9 November 2015 be dismissed.

Within 21 days of the date of this order, the respondents file and serve written submissions in support of their applications:

(a) for the costs of and incidental to that part of the said Amended Notice of Appeal seeking to appeal against certain paragraphs of the reasons for judgment in relation to the order for costs made on 30 September 2015;

(b) for the costs of and incidental to the order made on 4 December 2015 dismissing the Amended Application in an Appeal filed on 2 December 2015; and

Within 14 days of the receipt of those written submissions the appellant file and serve written submissions in response.

Within seven days of the receipt of the written submissions in response the respondents file and serve written submissions in reply.

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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