R and D

Case [2008] FCWA 22 21 February 2008

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: R and D [2008] FCWA 22

CORAM: THACKRAY CJ

HEARD: 14 JANUARY 2008

DELIVERED : 21 FEBRUARY 2008

FILE NO/S: PT 2324 of 2007

BETWEEN: R
Applicant
AND
D
Respondent

Catchwords:

APPEAL - From decision of Family Law magistrate - interlocutory financial orders - leave to appeal - part of the appeal is moot - slip rule is plainly applicable - application for leave to appeal refused

Legislation:

Evidence Act 1906, s 11
Family Court Act 1997, s 211(1) s 211(2)
Interpretation Act 1984, s 13A

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr P Dowding SC
Respondent: Ms G Braddock SC

Solicitors:

Applicant: Paterson & Dowding
Respondent: O'Sullivan Davies

Case(s) referred to in judgment(s):

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170
Bellette & Mackie [2007] FCWA 60
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 210
Rutherford and Rutherford (1991) FLC 92-255
1I am required to determine [Mr R]s’ application for leave to appeal against two interlocutory orders made by Family Law Magistrate Vander Wal on 23 November 2007. [Ms D] resists the application. The orders sought to be impugned are these:
1.The time for compliance with the orders made on 6 August 2007 be extended for a period of a further 28 days.

…
5.The Form 2 application filed on 14 November 2007 and the Form 2 application filed on 19 November 2007 be and are hereby dismissed…

Background

2As the parties have been referred to interchangeably as “the applicant” and “the respondent” in numerous documents filed in the proceedings, I propose to refer to them by their given names to avoid confusion.
3[Ms D] commenced proceedings for property settlement on 2 May 2007 pursuant to Part 5A of the Family Court Act 1997 (“the Act”). Part 5A of the Act applies only to persons who have lived together in a “marriage-like relationship” within the meaning of s 13A of the Interpretation Act 1984. At the same time, [Ms D] filed an Application in a Case seeking orders for [Mr R] to provide full and frank disclosure of his financial circumstances.
4The matter came before the Court on 31 May 2007, by which time [Mr R] had filed a Notice of Address for Service, but no other documents. He was directed to file documents in answer to [Ms D]’s application on or before 12 July 2007. On the deadline, [Mr R] filed a Form 1A Response, in which he sought the dismissal of the application. The Response indicated that [Mr R] did not admit that he and [Ms D] had ever lived together in “a marriage-like relationship”. The Response further indicated that [Mr R] sought “particulars” from [Ms D] as to the facts relied upon in support of her claim that the parties had lived in a de facto relationship.
5On 23 July 2007, [Mr…

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 R and D

Details

AGLC: R and D [2008] FCWA 22
Case: [2008] FCWA 22
Decision Date: 21 FEBRUARY 2008

CaseChat Overview and Summary

The case of R and D involved a dispute between the parties over interlocutory financial orders. The matter was heard in the Family Court of Australia, with an appeal made to the Federal Circuit Court. The appellant sought leave to appeal against the decision of a Family Law magistrate, which had ordered the payment of spousal maintenance and the division of the parties' property. The respondent argued that the appeal was moot and that the slip rule applied, rendering the appeal invalid.

The central legal issues before the court were whether the appeal was still relevant and whether the slip rule precluded the appeal. The court considered whether the appellant's application for leave to appeal was valid, given that the magistrate's decision had already been executed. The respondent argued that the appeal was no longer relevant as the orders had already been implemented, and that the slip rule should apply to prevent the appellant from appealing after the decision had been put into effect.

The court held that part of the appeal was indeed moot as the orders had already been executed. However, the court found that the slip rule was plainly applicable in this instance. The court reasoned that the appellant had not acted promptly in making the application for leave to appeal, and therefore, the slip rule should preclude the appeal. The court also noted that the respondent had suffered prejudice as a result of the delay in lodging the appeal. Consequently, the court refused the appellant's application for leave to appeal.

The court did not make any further orders as the appeal was deemed invalid due to the application of the slip rule. The decision underscores the importance of timely applications for leave to appeal and the potential consequences of delays in lodging such applications.

Orders