Sacco & Allan - [2024] FedCFamC1A 109

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sacco & Allan [2024] FedCFamC1A 109

Appeal from: Allan & Sacco (No 2) [2024] FedCFamC1F 15

Appeal number: NAA 31 of 2024

File number: BRC 15354 of 2020

Judgment of: ALDRIDGE, ALTOBELLI & SCHONELL JJ

Date of judgment: 9 July 2024

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the hearing of the appeal has been adjourned – Appellant sought to amend her Notice of Appeal – Neither the respondent nor Independent Children’s Lawyer opposed the application – Application in an Appeal allowed – Orders for filing of new Summaries of Argument.

Number of paragraphs: 5

Date of last submissions: 1 July 2024

Date of hearing: Determined in chambers on the papers

Place: Sydney

The Appellant: Litigant in person

Counsel for the Respondent: Mr Bolovan

Solicitor for the Respondent: KA Criminal Law Pty Ltd

Solicitor for the Independent Children’s Lawyer: Seth Solicitors
ORDERS

NAA 31 of 2024
BRC 15354 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS SACCO

Appellant

AND:
MR ALLAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, ALTOBELLI & SCHONELL JJ

DATE OF ORDER:

9 JULY 2024

THE COURT ORDERS THAT:
1.Leave is granted to the appellant to amend the Notice of Appeal in accordance with the grounds of appeal and orders sought set out in Annexure 1 and Annexure 2 of her affidavit filed 18 June 2024.
2.The appellant is to file a Summary of Argument of no more than 15 pages in support of the Amended Notice of Appeal on or before 19 July 2024.
3.The respondent and the Independent Children’s Lawyer are each to file and serve a Summary of Argument in response on or before 31 July 2024.
4.Costs of the application are reserved.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sacco & Allan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, ALTOBELLI & SCHONELL JJ:

This appeal was listed before us for hearing on 28 May 2024. It was adjourned, effectively without opposition, until 2 August 2024 because an intractable dispute had arisen between the appellant and her counsel as to how the appeal should proceed.
On 18 June 2024, acting for herself,…

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 Sacco & Allan

Details

AGLC: Sacco & Allan [2024] FedCFamC1A 109
Case: [2024] FedCFamC1A 109
Decision Date: 9 July 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the appellant, Ms Sacco, sought to amend her Notice of Appeal against an order made in proceedings concerning her children. The respondent, Mr Allan, did not oppose the application. The Independent Children’s Lawyer, who represents the interests of the children in the case, also did not oppose the amendment. The legal issue before the court was whether to grant the appellant leave to amend her Notice of Appeal.

The court considered the appellant’s application and noted that neither the respondent nor the Independent Children’s Lawyer opposed the amendment. The court acknowledged that leave to amend a Notice of Appeal is not freely granted but may be appropriate in circumstances where the amendment is not substantially altering the case or where there are no grounds for opposing it. Given that both the respondent and the Independent Children’s Lawyer had no objections, the court concluded that it was appropriate to allow the amendment. The court ordered that the appellant would need to file a new Summary of Argument and set deadlines for the filing of these documents. The court also reserved costs for the application.

The court granted leave to the appellant to amend the Notice of Appeal. It directed that the appellant file a Summary of Argument of no more than 15 pages in support of the Amended Notice of Appeal by a specified date. The respondent and the Independent Children’s Lawyer were each directed to file and serve their respective Summaries of Argument in response by a later date. The costs of the application were reserved for determination.

Orders

Orders of the court

NAA 31 of 2024

BRC 15354 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SACCO

Appellant

AND:

MR ALLAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, ALTOBELLI & SCHONELL JJ

DATE OF ORDER:

9 JULY 2024

THE COURT ORDERS THAT:

1. Leave is granted to the appellant to amend the Notice of Appeal in accordance with the grounds of appeal and orders sought set out in Annexure 1 and Annexure 2 of her affidavit filed 18 June 2024.

2. The appellant is to file a Summary of Argument of no more than 15 pages in support of the Amended Notice of Appeal on or before 19 July 2024.

3. The respondent and the Independent Children’s Lawyer are each to file and serve a Summary of Argument in response on or before 31 July 2024.

4. Costs of the application are reserved.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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NAA 31 of 2024 BRC 15354 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS SACCO Appellant
AND:	MR ALLAN Respondent
INDEPENDENT CHILDREN’S LAWYER

Appeal from:	Allan & Sacco (No 2) [2024] FedCFamC1F 15
Appeal number:	NAA 31 of 2024
File number:	BRC 15354 of 2020
Judgment of:	ALDRIDGE, ALTOBELLI & SCHONELL JJ
Date of judgment:	9 July 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the hearing of the appeal has been adjourned – Appellant sought to amend her Notice of Appeal – Neither the respondent nor Independent Children’s Lawyer opposed the application – Application in an Appeal allowed – Orders for filing of new Summaries of Argument.
Number of paragraphs:	5
Date of last submissions:	1 July 2024
Date of hearing:	Determined in chambers on the papers
Place:	Sydney
The Appellant:	Litigant in person
Counsel for the Respondent:	Mr Bolovan
Solicitor for the Respondent:	KA Criminal Law Pty Ltd
Solicitor for the Independent Children’s Lawyer:	Seth Solicitors

ORDER MADE BY:	ALDRIDGE, ALTOBELLI & SCHONELL JJ
DATE OF ORDER:	9 JULY 2024