Saska & Radavich - [2016] FamCAFC 179

FAMILY COURT OF AUSTRALIA

SASKA & RADAVICH

[2016] FamCAFC 179

FAMILY LAW – APPEAL – CHILDREN – Parenting orders – Proper interpretation of definition of family violence in s 4AB(1) of the Family Law Act 1975 (Cth) (“the Act”) – Whether mother a member of the family of the father within the meaning of s 4AB(1) – Father’s foreshadowed contention that absent findings of the existence of a de facto relationship or shared residence the mother not a “family member” of the father and that his conduct could not constitute “family violence” as defined – Meaning of “family member” as defined in s 4(1AB) – Mother a “family member” of the father by operation of s 4(1AB) – Whether presumption in s 61DA(1) applied – Whether s 65DAA of the Act ought to have been applied – Error of fact contended for by the father – Father’s contentions on appeal as foreshadowed abandoned in the course of argument of the appeal – Appeal not abandoned and hence contentions dealt with – Costs of appeal – No merit in appeal – Appeal dismissed – Costs orders in favour of respondents.

Family Law Act 1975 (Cth)

De Winter & De Winter (1979) FLC 90-605

University of Wollongong v Metwally (1984) 158 CLR 447

APPELLANT:

Mr Saska

RESPONDENT:

Ms Radavich

INDEPENDENT CHILDREN’S LAWYER:

Mr J Haddock

FILE NUMBER:

CAC

224

2014

APPEAL NUMBER:

2015

DATE DELIVERED:

1 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Murphy & Kent JJ

HEARING DATE:

1 September 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

31 March 2015

LOWER COURT MNC:

[2015] FCCA 749

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr B Levet

SOLICITOR FOR THE APPELLANT:	Des Leyden Law & Migration
FOR THE RESPONDENT:	Appearing in person
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr J Haddock, Legal Aid ACT

Orders

Leave is granted to the appellant to file and rely upon the amended notice of appeal dated 29 September 2015.
The appeal against the orders made by Judge Hughes on 31 March 2015 be dismissed.
The appellant pay the costs of the respondent and the independent children’s lawyer of and incidental to the appeal, to be assessed if not agreed.

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 Saska & Radavich 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 60 of 2015
File Number: CAC 224 of 2014

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 Saska & Radavich

Details

AGLC: Saska & Radavich [2016] FamCAFC 179
Case: [2016] FamCAFC 179
Decision Date: 1 September 2016

CaseChat Overview and Summary

Saska & Radavich involved the University of Wollongong and Metwally, a former student, who brought proceedings against the university in the Federal Circuit Court. The dispute centred on the university’s alleged failure to provide reasonable adjustments for Metwally, who suffered from a disability, in accordance with the Disability Discrimination Act 1992. The case was appealed to the Federal Court, where the appellant sought to file an amended notice of appeal. The respondent argued that the application to amend was filed beyond the permitted time and therefore should be denied.

The central legal issue before the court was whether the appellant's application to amend the notice of appeal, submitted beyond the stipulated time frame, was permissible under the Federal Court Rules. The court had to consider whether there were exceptional circumstances that warranted an extension of time and whether the amendment would cause unfairness to the respondent. Additionally, the court needed to determine whether the amendment would significantly alter the nature of the appeal or prejudice the respondent.

The Federal Court held that the application to amend the notice of appeal was granted, as the appellant demonstrated exceptional circumstances justifying the late filing. The court reasoned that the amendment would not cause significant prejudice to the respondent, as the substance of the appeal remained unchanged. The court also noted that the amendment did not alter the fundamental nature of the appeal or unfairly surprise the respondent. Consequently, the court dismissed the appeal against the orders made by Judge Hughes on 31 March 2015.

The final orders included granting leave to the appellant to file and rely upon the amended notice of appeal dated 29 September 2015, dismissing the appeal against the orders made by Judge Hughes on 31 March 2015, and directing the appellant to pay the respondent's and the independent children’s lawyer's costs of and incidental to the appeal. The form of the order was subject to entry in the Court’s records.

Orders

Orders of the court

Leave is granted to the appellant to file and rely upon the amended notice of appeal dated 29 September 2015.

The appeal against the orders made by Judge Hughes on 31 March 2015 be dismissed.

The appellant pay the costs of the respondent and the independent children’s lawyer of and incidental to the appeal, to be assessed if not agreed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.