PERRIN & PERRIN - [2018] FamCAFC 30

FAMILY COURT OF AUSTRALIA

PERRIN & PERRIN

[2018] FamCAFC 30

FAMILY LAW – APPEAL – Application to vacate hearing of an appeal – Orders appealed contained a finding (not an order) concerning the percentage division of the assets and gave liberty to the parties to provide a minute reflecting the finding – Appeal listed for hearing in the February 2018 sittings in Sydney – Parties’ informal request for an adjournment of the appeal denied by the Appeals Registry – Failure of appellant to comply with procedural directions – Counsel for the respondent now unavailable for the appeal hearing – Final orders still not made by primary judge – Na & Tiu [2017] FamCAFC 264 considered – Hearing vacated.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Na & Tiu [2017] FamCAFC 264

APPELLANT:

Ms Perrin

RESPONDENT:

Mr Perrin

FILE NUMBER:

NCC

556

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

14 February 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

14 February 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2017

LOWER COURT MNC:

[2017] FCCA 1606

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Baston (via telephone)

SOLICITOR FOR THE APPELLANT:

Mitchell Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Collett (via telephone)

SOLICITOR FOR THE RESPONDENT:

Collett Lawyers

Orders

The hearing in the Sydney Registry on 22 February 2018 be vacated.
The Eastern Appeals Registry is requested to relist the matter in the next appropriate sittings of the Full Court in Sydney.
The time in which the respondent has to file and serve his summary of argument be extended to 7 March 2018.
Costs be reserved to the Full Court.

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 Perrin & Perrin 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: EA 65 of 2017
File Number: NCC 556 of 2015

Ms Perrin

Appellant

And

Mr Perrin

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter comes before me for directions in relation to the appeal currently listed for hearing before the Full Court in Sydney next Thursday.
The appeal arises out of proceedings in the Federal Circuit Court before Judge Myers, who heard the matter over five days in June and October 2016 and delivered his reasons for decision on 18 May 2017.
In his reasons, Judge Myers foreshadowed giving the…

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 PERRIN & PERRIN

Details

AGLC: PERRIN & PERRIN [2018] FamCAFC 30
Case: [2018] FamCAFC 30
Decision Date: 14 February 2018

CaseChat Overview and Summary

The appeal in Perrin & Perrin arose from a family law matter where the appellant sought to vacate a hearing of an appeal against orders made by a primary judge. The orders in question contained a finding (not an order) concerning the percentage division of the assets and provided liberty to the parties to provide a minute reflecting this finding. The appeal was listed for hearing in the February 2018 sittings in Sydney. However, the parties' informal request for an adjournment was denied by the Appeals Registry due to the appellant's failure to comply with procedural directions. Furthermore, counsel for the respondent was now unavailable for the appeal hearing, and final orders had not yet been made by the primary judge. The court considered Na & Tiu [2017] FamCAFC 264 in making its decision.

The legal issues before the court were whether the hearing should be vacated due to the procedural failures and unavailability of the respondent's counsel, and if so, what orders should be made to address these issues. The court had to balance the need for procedural fairness and the efficient administration of justice with the rights of the parties to have their appeal heard. The court also had to consider the appropriate steps to take in light of the unavailability of the respondent's counsel and the absence of final orders from the primary judge.

The court decided to vacate the hearing in the Sydney Registry on 22 February 2018 due to the procedural issues and the unavailability of the respondent's counsel. The court requested the Eastern Appeals Registry to relist the matter in the next appropriate sittings of the Full Court in Sydney to ensure a fair hearing for both parties. Additionally, the court extended the time in which the respondent had to file and serve his summary of argument to 7 March 2018 to allow for any necessary adjustments. The court also reserved costs to the Full Court for later determination, subject to the entry of the order in the Court's records.

The court's orders were to vacate the hearing on 22 February 2018, relist the matter in the next appropriate sittings of the Full Court in Sydney, extend the time for the respondent to file and serve his summary of argument, and reserve costs to the Full Court. These orders aimed to address the procedural issues and ensure a fair hearing for both parties while also allowing for the efficient administration of justice.

Orders

Orders of the court

The hearing in the Sydney Registry on 22 February 2018 be vacated.

The Eastern Appeals Registry is requested to relist the matter in the next appropriate sittings of the Full Court in Sydney.

The time in which the respondent has to file and serve his summary of argument be extended to 7 March 2018.

Costs be reserved to the Full Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.