SAWER & HUGH - [2011] FamCAFC 107

FAMILY COURT OF AUSTRALIA

SAWER & HUGH

[2011] FamCAFC 107

FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the appeal was deemed abandoned after the father failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – where father claims health difficulties prevented him from filing in time – application opposed by mother and independent children’s lawyer – question becomes one of whether reasons proffered by the father are adequate – the delay involved does not prevent the application being granted - significantly though there is no merit in either the application for leave to appeal or the appeal itself - consideration of the consequences for the parties and the children if the application is granted or refused - concern about the history of the proceedings and the prejudice to the mother if the appeal is reinstated - the interests of justice require that the application be refused - Notice of Appeal formally dismissed

FAMILY LAW - COSTS – regime for written submissions.

Family Law Act 1975 (Cth) s 94(2D)(c) and s 94(2F)
Family Law Rules 2004 (Cth) rr 22.13, 22.44 & former r 22.57

Bane & Hacker [2009] FamCAFC 47
Batey‑Elton & Elton [2009] FamCAFC 101
Bemert & Swallow (2010) FLC 93-441 at [154]
Gallo v Dawson (1990) 93 ALR 479 at 480
Rand & Rand [2009] FamCAFC 88

APPELLANT:

Mr Sawer

RESPONDENT:	Ms Hugh
INDEPENDENT CHILDREN’S LAWYER	Mr Walker

FILE NUMBER:

LNC

511

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

17 May 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

25 August 2010

8 March 2011

LOWER COURT JURISDICTION:

Family Law Court

LOWER COURT JUDGMENT DATE:

17 March 2010

LOWER COURT MNC:

[2010] FamCA 290

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Lewis

SOLICITOR FOR THE RESPONDENT:

Levis Stace & Cooper

COUNSEL FOR THE ICL

Mr Walker

SOLICITOR FOR THE ICL

David Walker & Co

Orders

The Application in a Case filed on 12 August 2010 be dismissed.
The Notice of Appeal filed on 14 April 2010 be dismissed.
The parties are at liberty to file written submissions with regards to the costs of the Application in accordance with the following timetable:
(a)on behalf of the Respondent and the Independent Children’s Lawyer within 21 days hereof;
(b)on behalf of the Applicant in response thereto within fourteen [14] days thereafter;
(c)on behalf of the Respondent and the Independent Children’s Lawyer in reply within seven [7] days thereafter; and
each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party or parties.

IT IS NOTED that publication of this judgment under the pseudonym Hugh & Sawer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 24 of 2010
File Number:…

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 SAWER & HUGH

Details

AGLC: SAWER & HUGH [2011] FamCAFC 107
Case: [2011] FamCAFC 107
Decision Date: 17 May 2011

CaseChat Overview and Summary

In the matter of Sawer and Hugh, the Federal Circuit and Family Court of Australia dealt with an application for reinstatement of an appeal against an earlier Family Court decision. The father, Sawer, had failed to file a draft appeal index within the time required by the Family Law Rules 2004 (Cth), leading to the appeal being deemed abandoned. Sawer claimed that health difficulties had prevented him from meeting the deadline. The mother and the independent children’s lawyer opposed the application, raising concerns about the history of the proceedings and the potential prejudice to the mother if the appeal were to be reinstated.

The court was tasked with determining whether the reasons provided by Sawer for the delay were sufficient to warrant the reinstatement of the appeal. While the court acknowledged that the delay alone did not preclude the application from being granted, it found no merit in either the application for leave to appeal or the appeal itself. The court considered the potential consequences for the parties and the children if the application were to be granted or refused. Given the history of the proceedings and the need to protect the interests of justice, the court concluded that the application should be dismissed.

The court also addressed the issue of costs for the written submissions related to the application. It outlined a specific timetable for the filing of written submissions by the parties and the independent children’s lawyer, emphasizing the importance of proper service and documentation. The court ordered that the application be dismissed and that the notice of appeal be formally dismissed. The parties were directed to file written submissions regarding the costs in accordance with the stipulated timetable.

Orders

Orders of the court

The Application in a Case filed on 12 August 2010 be dismissed.

The Notice of Appeal filed on 14 April 2010 be dismissed.

The parties are at liberty to file written submissions with regards to the costs of the Application in accordance with the following timetable:

(a) on behalf of the Respondent and the Independent Children’s Lawyer within 21 days hereof;

(b) on behalf of the Applicant in response thereto within fourteen [14] days thereafter;

each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party or parties.

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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