PROCTOR & PROCTOR - [2016] FamCAFC 129

FAMILY COURT OF AUSTRALIA

PROCTOR & PROCTOR

[2016] FamCAFC 129

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a Notice of Appeal – Reasonable excuse for delay – Where the proposed appeal is not devoid of merit – Leave for an extension of time granted.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition – Where the orders being appealed resulted in significant changes to the child’s living arrangements – Expedition granted.

Family Law Act 1975 (Cth) ss 68B, 94(2D)(j)
Family Law Rules 2004 (Cth) rr 12.10A, 22.03

Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Proctor

RESPONDENT:

Ms Proctor

INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

FILE NUMBER:

PAC

1846

2014

APPEAL NUMBER:

2016

DATE DELIVERED:

19 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

30 June 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 March 2016

LOWER COURT MNC:

[2016] FCCA 613

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Ford

SOLICITOR FOR THE APPELLANT:

David Leamey Solicitor

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Beck

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

Orders

The time in which Mr Proctor may appeal from the Orders of Judge Harman made on 23 March 2016 in proceedings PAC1846 of 2014 is extended up to and including 9 August 2016.
The appeal be expedited on the basis that the appeal not be listed for hearing before 7 October 2016 and thereafter shall be listed at the discretion of the appeals registrar.
No order as to costs.

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 Proctor & Proctor 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 SYDNEY

Appeal Number: EA 78 of 2016
File Number: PAC 1846 of 2014

Mr Proctor

Appellant

and

Ms Proctor

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 10 May 2016 Mr Proctor (“the father”) seeks an extension of time in which to file an appeal against orders of Judge Harman made on 23 March 2016. The proceedings between the father and Ms Proctor (“the mother”) concerned both property and parenting.
On 23 March 2016 the primary judge ordered that the parties’ youngest daughter (“X”), aged 12, live with her mother who was to have sole parental…

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 PROCTOR & PROCTOR

Details

AGLC: PROCTOR & PROCTOR [2016] FamCAFC 129
Case: [2016] FamCAFC 129
Decision Date: 19 July 2016

CaseChat Overview and Summary

The case of Proctor & Proctor involved an application for an extension of time to file a Notice of Appeal in relation to family law matters. Mr. Proctor sought an extension to appeal against orders made by Judge Harman on 23 March 2016 in proceedings PAC1846 of 2014, arguing for a reasonable excuse for the delay. Additionally, Mr. Proctor sought an expedited hearing of the appeal due to the significant changes to the child's living arrangements resulting from the contested orders.

The court had to determine whether there was a reasonable excuse for the delay in filing the Notice of Appeal and whether the proposed appeal was not devoid of merit. Furthermore, the court considered whether the appeal should be expedited given the significant impact on the child's living arrangements. The court found that there was a reasonable excuse for the delay and that the appeal was not devoid of merit. Given the significant changes to the child's living arrangements, the court also granted the application for expedition.

The court granted the application for an extension of time, allowing Mr. Proctor to file the Notice of Appeal up until 9 August 2016. The appeal was expedited, with the court ordering that the appeal not be listed for hearing before 7 October 2016, with subsequent listing at the discretion of the appeals registrar. No order was made as to costs. The form of the order was subject to entry in the Court's records.

Orders

Orders of the court

The time in which Mr Proctor may appeal from the Orders of Judge Harman made on 23 March 2016 in proceedings PAC1846 of 2014 is extended up to and including 9 August 2016.

The appeal be expedited on the basis that the appeal not be listed for hearing before 7 October 2016 and thereafter shall be listed at the discretion of the appeals registrar.

No order as to costs.

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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