PENMAN & FELTON - [2016] FamCAFC 266

FAMILY COURT OF AUSTRALIA

PENMAN & FELTON

[2016] FamCAFC 266

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the respondent opposes reinstatement – Where the applicant provided an adequate explanation for the delay – Where the applicant is a self-represented litigant and has applied for a review of the decision of Legal Aid NSW to refuse his application for legal aid – Where the serious subject matter of the appeal weighs in favour of reinstatement – Appeal reinstated.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks that the applicant pay her costs of the application – Where circumstances giving rise to the application were caused by the applicant’s failure to comply with rules – Applicant to pay respondent’s costs fixed at $3,000.

Family Law Act 1975 (Cth): s 68C
Legal Aid Commission Act 1979 (NSW): s 57

Family Law Rules 2004 (Cth): r 22.13

Gallo v Dawson (1990) 93 ALR 479
Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Mr Penman

RESPONDENT:

Ms Felton

INDEPENDENT CHILDREN’S LAWYER:

Ms Pearson

FILE NUMBER:

WOC

525

2014

APPEAL NUMBER:

EAA

173

2016

DATE DELIVERED:

14 December 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

14 December 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 September 2016

LOWER COURT MNC:

[2016] FCCA 1816

REPRESENTATION

FOR THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Helen Volk Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Maguire & McInerney Lawyers

Orders

That the Notice of Appeal filed on 12 October 2016 be reinstated.
That the father file and serve a draft appeal index no later than 23 January 2017.
That the father pay the mother’s costs of and incidental to the applications in an appeal in the amount of $3,000 within three (3) months from today’s date.

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 Penman & Felton 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 173 of 2016
File Number: WOC 525 of 2014

Mr Penman

Appellant

And

Ms Felton

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

By Application in an Appeal filed on 17 November 2016 Mr Penman (“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.

Continue reading PENMAN & FELTON

Details

AGLC: PENMAN & FELTON [2016] FamCAFC 266
Case: [2016] FamCAFC 266
Decision Date: 14 December 2016

CaseChat Overview and Summary

The case of PENMAN & FELTON involved an appeal in family law, where the father, the appellant, sought reinstatement of his appeal after it was deemed abandoned due to non-compliance with procedural rules. The mother, the respondent, opposed the reinstatement, arguing that the delay was significant and unjustified. The appeal pertained to a matter of considerable importance, relating to the welfare and custody of a child. The court was required to decide whether the appeal should be reinstated and, if so, whether the father should be ordered to pay the mother’s costs.

The court found that the father had provided an adequate explanation for the delay in filing the draft appeal index, which was a procedural oversight rather than a deliberate attempt to delay the proceedings. Given that the father was a self-represented litigant, the court considered it appropriate to exercise its discretion in favour of reinstatement. The serious nature of the subject matter, which involved the welfare of a child, further supported the decision to reinstate the appeal. The court also noted that the father had applied for a review of Legal Aid NSW's decision to refuse his application for legal aid, indicating his commitment to pursuing the appeal.

In light of the above, the court ordered the reinstatement of the appeal. The father was directed to file and serve a draft appeal index by a specified date. Additionally, the court ordered the father to pay the mother’s costs of the application, which were fixed at $3,000, due to the circumstances being primarily caused by the father’s failure to comply with the procedural rules.

The orders made by the court were for the reinstatement of the Notice of Appeal filed on 12 October 2016, with a requirement for the father to file and serve a draft appeal index by 23 January 2017. Furthermore, the father was ordered to pay the mother’s costs, amounting to $3,000, within three months from the date of the court’s decision. The form of the order was subject to formal entry in the Court’s records.

Orders

Orders of the court

That the Notice of Appeal filed on 12 October 2016 be reinstated.

That the father file and serve a draft appeal index no later than 23 January 2017.

That the father pay the mother’s costs of and incidental to the applications in an appeal in the amount of $3,000 within three (3) months from today’s date.

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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