Peda and Feaster and Anor - [2019] FamCAFC 21

FAMILY COURT OF AUSTRALIA

PEDA & FEASTER AND ANOR

[2019] FamCAFC 21

FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the father filed a Notice of Appeal on 2 October 2018 – Where the father failed to file a draft index to the appeal books within the prescribed timeframe – Where the father’s appeal was deemed abandoned – Where the father’s grounds of appeal were largely incomprehensible and misguided – Where there were serious allegations and findings of abuse perpetrated by the father against all members of the family – Consideration of Joshua v Joshua (1997) FLC 92-767 – Where there was no substantial issue to be raised on appeal – Where the father asserted impecuniosity and being self-represented as explanation for delay – Where neither are satisfactory explanations – Where the Court is not satisfied of requirements to grant an application to reinstate – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC(2)(b), 60CC(3)(i), 60CC(3)(m), 69ZN, 69ZX(2)(i), 117(2)
Family Law Rules 2004 (Cth) r 22.13(3)

Bant & Clayton [2014] FamCAFC 108
Burton & Churchin (2013) FLC 93-561; [2013] FamCAFC 180
Cooper & Oakley (No. 2) [2012] FamCAFC 187
Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra (an infant) v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31
Molloy & Molloy (2016) FLC 93-754; [2016] FamCAFC 264
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Oram & Lambert [2019] FamCAFC 4
Tabb & Tabb [2017] FamCAFC 169
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Peda

FIRST RESPONDENT:

Ms Feaster

SECOND RESPONDENT:

Ms Peda

INDEPENDENT CHILDREN’S LAWYER:

Ms Geysen, CNG Law

FILE NUMBER:

BRC

1644

2017

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

15 February 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

16 January 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 September 2018

LOWER COURT MNC:

[2018] FCCA 2417

REPRESENTATION

FOR THE APPLICANT:

In person

FOR THE FIRST RESPONDENT:

In person

FOR THE SECOND RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Taylor

INDEPENDENT CHILDREN’S LAWYER

Ms Geysen, CNG Law

IT IS ORDERED THAT

The father be granted leave to rely upon the affidavit filed 28 December 2018.
The Application in an Appeal filed by the father on 5 November 2018 for reinstatement of the appeal be dismissed.
The father pay the Independent Children’s Lawyer’s costs of and incidental to the Application in an Appeal fixed in the sum of $4,000.00 within 90 days of the date of this order.

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

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 Peda and Feaster and Anor

Details

AGLC: Peda and Feaster and Anor [2019] FamCAFC 21
Case: [2019] FamCAFC 21
Decision Date: 15 February 2019

CaseChat Overview and Summary

Mr Peda, the father of a child X, sought to reinstate his appeal against orders made by Judge Vasta on 3 September 2018, in respect of which the father was granted sole parental responsibility to the mother, with the father to have no contact with the child. The father filed his Notice of Appeal on 2 October 2018, but failed to file a draft index to the appeal books within the prescribed timeframe, leading to the abandonment of his appeal. The father subsequently filed an application for reinstatement of the appeal on 5 November 2018. The legal issues the court had to decide were whether there was a substantial issue to be raised on appeal, and if so, whether there were justifiable reasons for the delay in filing the draft index, and whether the delay had caused any hardship or prejudice to the mother. The court found that there was no substantial issue to be raised on appeal, as the father's grounds of appeal were largely incomprehensible and misguided, and there were serious allegations and findings of abuse perpetrated by the father against all members of the family. The court also found that the father's explanation for the delay was inadequate, as he failed to respond to correspondence from the Appeals Registrar and did not specify a timeframe for filing the draft index. The court dismissed the father's application for reinstatement of the appeal and ordered him to pay the Independent Children's Lawyer's costs of and incidental to the Application in an Appeal fixed in the sum of $4,000.00 within 90 days of the date of the order. The court noted that the orders providing for no time between the father and the child were grave and serious orders, and that there was injustice to the mother in permitting the reinstatement of an appeal that exhibited each of the characteristics referred to earlier. The court also noted that the refusal of the application did not eliminate entirely the prospect of future orders subject to satisfying what is referred to as "the Rule in Rice and Asplund."

Orders