Probert and Probert & Ors (No 2) - [2018] FamCAFC 178

FAMILY COURT OF AUSTRALIA

PROBERT & PROBERT AND ORS (NO. 2)

[2018] FamCAFC 178

FAMILY LAW – APPEAL – Application for reinstatement – The appellant seeks to reinstate an appeal deemed abandoned by operation of the Family Law Rules 2004 (Cth) – Where the cross-appeal is scheduled for hearing before the Full Court – Application adjourned for hearing before the Full Court.

Family Law Rules 2004 (Cth)

APPELLANT/FIRST CROSS-RESPONDENT:

Mr Probert

FIRST RESPONDENT/

SECOND CROSS-RESPONDENT:

Ms Probert

SECOND RESPONDENTS/

CROSS-APPELLANTS

Ms Whittemore & Mr Whittemore

FILE NUMBER:

PTW

872

2014

APPEAL NUMBER:

2018

DATE DELIVERED:

14 September 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

14 September 2018

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

29 March 2018

LOWER COURT MNC:

[2018] FCWA 54

REPRESENTATION

THE APPELLANT/FIRST CROSS-RESPONDENT:

In person

COUNSEL FOR THE FIRST RESPONDENT/

SECOND CROSS-RESPONDENT

Ms King

SOLICITOR FOR THE FIRST RESPONDENT/

SECOND CROSS-RESPONDENT:

Genuine Legal

THE SECOND RESPONDENTS/

CROSS-APPELLANTS:

No appearance

Orders

The Application in an Appeal filed 4 September 2018 be adjourned for hearing before the Full Court.
The time for compliance with paragraph 16 of the orders made on 16 July 2018 be extended to 10 am on 25 September 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 Probert & Probert & Whittemore (No. 2) 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: WA 17 of 2018
File Number: PTW 872 of 2014

Mr Probert

Appellant/First Cross-Respondent

And

Ms Probert

First Respondent/Second Cross-Respondent:

And

Ms Whittemore & Mr Whittemore

Second Respondents/Cross-Appellants

EX TEMPORE REASONS FOR JUDGMENT

The application before the Court is that of the appellant, Mr Probert, filed on 4 September 2018 in which he seeks reinstatement of his appeal, which was filed on 24 April 2018 against orders of a Family Law Magistrate.
There is also a cross-appeal by Mr and Mr Whittemore also filed on 24 April 2018. The usual directions have been made to prepare the matter for hearing before the Full Court and both the appeal and cross-appeal are listed to be heard on 27 September 2018. Mr Probert says he has not yet received notice of the hearing date and therefore a copy of the letter advising of the date will be provided to him today.
The need for reinstatement arises as a result of Mr Probert’s failure to provide the appeal books…

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 Probert and Probert & Ors (No 2)

Details

AGLC: Probert and Probert & Ors (No 2) [2018] FamCAFC 178
Case: [2018] FamCAFC 178
Decision Date: 14 September 2018

CaseChat Overview and Summary

The appeal in Probert and Probert & Ors (No 2) involves an application by the appellant, Probert, to reinstate an appeal that was previously deemed abandoned under the Family Law Rules 2004 (Cth). The respondents, Ors, were involved in the original dispute which pertained to family law matters. The application to reinstate the appeal was filed on 4 September 2018, and the cross-appeal was already scheduled for hearing before the Full Court. The appellant's application was to have the appeal reinstated, while the respondents' cross-appeal was to proceed as planned.

The primary legal issue before the court was whether the appellant's application to reinstate the appeal, which had been abandoned, should be granted. This involved interpreting the relevant provisions of the Family Law Rules 2004 (Cth) and assessing the circumstances that led to the abandonment of the appeal. Additionally, the court had to consider the scheduling of the cross-appeal and the implications of having both the reinstated appeal and the cross-appeal heard by the Full Court.

The court decided to adjourn the application to reinstate the appeal for hearing before the Full Court, allowing both the appellant's and respondents' matters to be heard together. This decision aimed to ensure a comprehensive and fair resolution of the issues at hand. The court also extended the time for compliance with a previous order, allowing the appellant more time to meet the specified conditions. Costs were reserved for the Full Court to determine, pending further developments in the case. The adjournment and extension of time were intended to facilitate a thorough examination of the appeal and cross-appeal in a single hearing.

Orders

Orders of the court

The Application in an Appeal filed 4 September 2018 be adjourned for hearing before the Full Court.

The time for compliance with paragraph 16 of the orders made on 16 July 2018 be extended to 10 am on 25 September 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

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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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