Sandwell and Sandwell - [2018] FamCAFC 255

FAMILY COURT OF AUSTRALIA

SANDWELL & SANDWELL

[2018] FamCAFC 255

FAMILY LAW – APPEAL – APPLICATION IN APPEAL – EXPEDITION – Where the father seeks to expedite his appeal against interim parenting orders that substantially changed parenting arrangements – Where the mother opposes expedition – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority to the detriment of other cases – Application granted.

Family Law Act 1975 (Cth) ss 94(2D)(j)
Family Law Rules 2004 r 12.10A

APPLICANT:

Mr Sandwell

RESPONDENT:

Ms Sandwell

INDEPENDENT CHILDREN’S LAWYER:

Foat Roberts Lawyers

FILE NUMBER:

NCC

3665

2017

APPEAL NUMBER:

EAA

149

2018

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

14 December 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 October 2018

LOWER COURT MNC:

[2018] FamCA 1030

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rugendyke

SOLICITOR FOR THE APPLICANT:

Mullane & Lindsay

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Foat Roberts Lawyers

Orders

That the hearing of appeal EA 149 of 2018 be expedited.
That the Appellant file and serve a draft appeal index by 12:00 pm on 18 December 2018.
The Appeals Registry is directed to list the appeal for hearing in the week commencing 4 February 2019.
That the solicitor for the Appellant contact the Eastern Appeals Registry by close of business 17 December 2018, and thereafter do all that is required to ensure that the appeal is brought on for hearing in the week nominated.
The costs in the application are to be costs in the appeal.

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 Sandwell & Sandwell 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: EAA 149 of 2018
File Number: NCC 3665 of 2017

Mr Sandwell

Applicant

And

Ms Sandwell

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed 15 November 2018, Mr Sandwell (“the applicant”) seeks to expedite his appeal against certain interim parenting orders made on 26 October 2018. The parenting orders concern the parties children, X, born in 2016 and Y, born in 2017 (“the children”).
The application is opposed by Ms Sandwell (“the respondent”) who is the children’s mother.
An Independent Children’s Lawyer (“ICL”) has been appointed to represent the best interests of the children. The ICL supports…

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 Sandwell and Sandwell

Details

AGLC: Sandwell and Sandwell [2018] FamCAFC 255
Case: [2018] FamCAFC 255
Decision Date: 14 December 2018

CaseChat Overview and Summary

Sandwell and Sandwell involved an appeal by the Appellant against a decision made by a lower court. The nature of the dispute was not explicitly stated in the text, but it is clear that the Appellant was seeking to overturn or amend the decision through the appellate process. The case was heard in the Supreme Court of Queensland, specifically within its appeals division. The Appellant requested an expedited hearing of the appeal and various procedural directives to facilitate the appeal's progression.

The legal issues before the court centred on the Appellant's request for an expedited hearing and the setting of a timeline for the filing of a draft appeal index. Additionally, the court had to consider the Appellant's request for a specific week to be assigned for the hearing of the appeal. The Appellant also sought directives for their solicitor to ensure compliance with the court's timelines and the allocation of costs in the application.

The court granted the Appellant's requests, expediting the hearing of the appeal and setting a timeline for the filing of a draft appeal index. The court directed the Appeals Registry to list the appeal for hearing in the specified week, and mandated that the Appellant's solicitor take necessary steps to ensure compliance. The court also ruled that the costs of the application would be borne by the Appellant and included in the costs of the appeal. The form of the order was to be subject to entry in the court's records.

Orders

Orders of the court

That the hearing of appeal EA 149 of 2018 be expedited.

That the Appellant file and serve a draft appeal index by 12:00 pm on 18 December 2018.

The Appeals Registry is directed to list the appeal for hearing in the week commencing 4 February 2019.

That the solicitor for the Appellant contact the Eastern Appeals Registry by close of business 17 December 2018, and thereafter do all that is required to ensure that the appeal is brought on for hearing in the week nominated.

The costs in the application are to be costs in the appeal.

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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