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Rader & Haines

Rader & Haines

Case [2022] FedCFamC1A 156 8 September 2022

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Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Rader & Haines [2022] FedCFamC1A 156

Appeal from: Rader & Rader [2022] FedCFamC1F 375

Appeal number(s): NAA 124 of 2022

File number(s): SYC 1641 of 2019

Judgment of: ALDRIDGE J

Date of judgment: 8 September 2022

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Review of decision – Where the appeal judicial registrar refused to reinstate the applicant’s appeal – Where the property proceedings are part heard – Where the proposed appeal would be futile given the commencement of property proceedings – Where the grounds of appeal are meritless – The application is dismissed – The applicant is to pay the respondent’s costs in a fixed sum.

Legislation:
Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.14, 13.44

Cases cited:
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Marsh v Marsh (1994) FLC 92-443; [1993] FamCA 57

Number of paragraphs: 32

Date of hearing: 8 September 2022

Place: Sydney

The Applicant: Self-represented litigant

Solicitor for the Respondent: Dettmann Phair
ORDERS

NAA 124 of 2022
SYC 1641 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR RADER

Applicant

AND:
MS HAINES

Respondent

order made by:

ALDRIDGE J

DATE OF ORDER:

8 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 26 August 2022 is dismissed.
2.The applicant is to pay the respondent’s costs fixed in the sum of $2,562.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rader & Haines has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:

This is an application for the review of a decision of an appeal judicial registrar of 5 August 2022, in which the registrar refused to reinstate the applicant’s appeal.
In order to understand the application, it is necessary to set out a little bit of the background of this matter.
It appears that there are proceedings between the parties in the District Court of New South Wales that have been commenced by the applicant. In addition, one of the parties’ children has also commenced proceedings in 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 Rader & Haines

Details

AGLC: Rader & Haines [2022] FedCFamC1A 156
Case: [2022] FedCFamC1A 156
Decision Date

CaseChat Overview and Summary

The appeal in this case was brought by Mr Rader against a decision made by a judicial registrar to dismiss his application to reinstate his appeal against a decision made by the primary judge. The primary judge's decision related to property and parenting orders in proceedings between Mr Rader and Ms Haines. The primary judge had previously dismissed an application for review made by Mr Rader. The appeal judicial registrar dismissed Mr Rader's application to reinstate his appeal, and Mr Rader sought a review of that decision.
The court considered whether the proposed appeal was likely to be successful, given that the property proceedings were part heard and an appeal would be futile. The court also considered the merits of the grounds of appeal and found them to be without merit. The court concluded that the application for reinstatement was unlikely to succeed and dismissed the application for review. The court ordered that Mr Rader pay Ms Haines' costs of $2,562.

The court found that the proposed appeal was futile because the property proceedings were already part heard, and it would not be in the interests of justice to allow a meritless appeal to proceed. The court also found that the grounds of appeal were without merit and unlikely to succeed. The court concluded that it would not be in the interests of justice to grant the application for reinstatement and dismissed the application for review. The court ordered that Mr Rader pay Ms Haines' costs of $2,562, as the application was wholly unsuccessful.

Orders