SARGENT & SELWYN - [2016] FamCAFC 241

FAMILY COURT OF AUSTRALIA

SARGENT & SELWYN

[2016] FamCAFC 241

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks to file an appeal over 14 months out of time – Where the primary judge delivered written reasons more than a year after orders were made – Where it is uncertain as to whether the primary judge delivered the reasons before he retired – Where the proposed appeal challenges the adequacy of the primary judge’s reasons – Where the extraordinary circumstances of the matter warrant the granting of an extension – Application allowed.

Bennett and Bennett (1991) FLC 92-191
Gallo v Dawson (1990) 93 ALR 479
Herridge & Handerson and Ors (2011) FLC 93-474
Macris & Galanis (2015) FLC 93-681
Rollings v Rollings (2009) 230 FLR 396

APPLICANT:

Mr Sargent

RESPONDENT:

Ms Selwyn

FILE NUMBER:

SYC

7405

2013

APPEAL NUMBER:

155

2016

DATE DELIVERED:

29 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

3 November 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

28 July 2016

LOWER COURT MNC:

[2016] FCCA 1987

REPRESENTATION

FOR THE APPLICANT:

The Applicant in Person

SOLICITOR FOR THE RESPONDENT:

Ms Linden of Linden Legal

Orders

The time for filing a Notice of Appeal against the orders made by Judge Scarlett on 29 June 2015 and 22 July 2016 is extended up to and including 6 December 2016.
The appeal is listed for directions before me at 11:30 am on Wednesday 21 December 2016.

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 Sargent & Selwyn 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 155 of 2016
File Number: SYC 7405 of 2013

Mr Sargent

Applicant

And

Ms Selwyn

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 9 September 2016, Mr Sargent (“the applicant”) seeks an extension of time in which to appeal against parenting orders made by Judge Scarlett on 29 June 2015. Those orders provided for the child, then aged three, to live with his mother, Ms Selwyn (“the respondent”), and to spend time with the applicant initially for four days and one night a fortnight. The applicant had contended that there should be orders for the child to spend equal time with each parent.
The orders were not accompanied by reasons. It was not until early August 2016, over 14 months later,…

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 SARGENT & SELWYN

Details

AGLC: SARGENT & SELWYN [2016] FamCAFC 241
Case: [2016] FamCAFC 241
Decision Date: 29 November 2016

CaseChat Overview and Summary

The case of Sargent and Selwyn involved an appeal against orders made by Judge Scarlett on two occasions, on 29 June 2015 and 22 July 2016. The nature of the dispute centred around the timeliness and conditions under which an appeal could be lodged against the aforementioned orders. The matter was heard by the Supreme Court, which was required to consider the legal issues surrounding the extension of time for filing a Notice of Appeal and the appropriate listing for the appeal.

The court was tasked with determining whether the appellant had a valid basis for an extension of the time to file a Notice of Appeal. This involved assessing the circumstances that may have justified a delay in filing the appeal and whether the appellant's actions were reasonable under the given circumstances. Additionally, the court had to decide on the appropriate listing for the appeal to ensure that the matter was heard efficiently and effectively.

In reaching its decision, the court considered the evidence and arguments presented by the parties regarding the delay in filing the Notice of Appeal. The court found that there were sufficient grounds to extend the time for filing the Notice of Appeal, taking into account the circumstances that led to the delay. The court also determined that the appeal should be listed for directions to ensure that the proceedings would be managed in a way that was fair and just for both parties. As a result, the court extended the time for filing the Notice of Appeal and listed the matter for directions.

The final orders of the court included an extension of the time for filing a Notice of Appeal up until 6 December 2016 and the listing of the appeal for directions before the court on 21 December 2016. These orders were made to ensure that the appellant had a fair opportunity to present their case and that the proceedings would be managed in an efficient manner.

Orders

Orders of the court

The time for filing a Notice of Appeal against the orders made by Judge Scarlett on 29 June 2015 and 22 July 2016 is extended up to and including 6 December 2016.

The appeal is listed for directions before me at 11:30 am on Wednesday 21 December 2016.

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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