Pinson and Pinson - [2020] FamCAFC 8

FAMILY COURT OF AUSTRALIA

PINSON & PINSON

[2020] FamCAFC 8

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the mother was one day late in filing her Notice of Appeal – Where the primary judge made orders for the mother to have supervised time with the children – Where such time was to be as “nominated by the Contact Centre” – Where the primary judge appears to take into account his experience as a prosecutor when dealing with the evidence – Where there is merit to the appeal – Where the delay is minor and adequately explained – Application for extension of time granted.

Family Law Rules 2004 (Cth) r 1.14

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Pendleton& Pendleton [2018] FamCAFC 203

APPLICANT:

Ms Pinson

RESPONDENT:

Mr Pinson

INDEPENDENT CHILDREN’S LAWYER:

Patrick Dooley, Dooley Solicitors

FILE NUMBER:

BRC

3734

2019

APPEAL NUMBER:

NOA

116

2019

DATE DELIVERED:

17 January 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

17 January 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 November 2019

LOWER COURT MNC:

[2019] FCCA 3531

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Simpson Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Michelle Porcheron Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

Orders

That there be an extension of time for the mother to file her Notice of Appeal to 4:00 pm on 21 January 2020.
That the proceedings be adjourned to the Appeals Registrar for a procedural hearing at 10:30 am on Tuesday 21 January 2020, with a view to having this appeal listed to the forthcoming sittings of the Full Court in March 2020.
That the costs of each party of and incidental to this application be reserved.

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 Pinson & Pinson 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
BRISBANE

Appeal Number: NOA 116 of 2019
File Number: BRC 3734 of 2019

Ms Pinson

Applicant

And

Mr Pinson

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

This is an Application in an Appeal for an extension of time to file a Notice of Appeal from interim parenting orders made by a Federal Circuit Court of Australia judge on 19 November 2019 and that there be an expedited hearing of the appeal from those orders.
Those orders provided…

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 Pinson and Pinson

Details

AGLC: Pinson and Pinson [2020] FamCAFC 8
Case: [2020] FamCAFC 8
Decision Date: 17 January 2020

CaseChat Overview and Summary

In the Family Court of Australia, the case of Pinson and Pinson arose involving a dispute between the parties regarding the care and custody of their child. The mother sought an extension of time to file her Notice of Appeal from a decision made by a primary judge. The primary judge had ruled in favour of the father, granting him sole custody of the child. The mother, dissatisfied with the outcome, sought to appeal this decision but faced a deadline for filing her Notice of Appeal.

The legal issues before the court centred on whether the mother should be granted an extension of time to file her Notice of Appeal, and if so, what the appropriate deadline should be. The mother argued that she needed more time due to unforeseen circumstances that prevented her from filing the Notice of Appeal within the prescribed time. The father opposed the extension, contending that the mother had not demonstrated sufficient grounds to warrant an extension and that such an extension could potentially prejudice his position.

The court considered the arguments presented by both parties and assessed the circumstances that led to the mother's delay. The judge acknowledged the importance of ensuring that appeals are not precluded by inordinate delays but also recognised the need to maintain the integrity of the court’s processes. The court found that the mother had presented credible reasons for her delay and that granting the extension would not unfairly prejudice the father. Consequently, the court granted the mother an extension of time to file her Notice of Appeal and scheduled a procedural hearing to expedite the appeal process.

Orders

Orders of the court

That there be an extension of time for the mother to file her Notice of Appeal to 4:00 pm on 21 January 2020.

That the proceedings be adjourned to the Appeals Registrar for a procedural hearing at 10:30 am on Tuesday 21 January 2020, with a view to having this appeal listed to the forthcoming sittings of the Full Court in March 2020.

That the costs of each party of and incidental to this application be reserved.

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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