SCVG & KLD (No 2) - [2016] FamCAFC 23

FAMILY COURT OF AUSTRALIA

SCVG & KLD (NO. 2)

[2016] FamCAFC 23

FAMILY LAW – APPEAL – Application to extend time to appeal – Where final parenting orders were made after ten years of litigation – Where the final orders provided for no face-to-face contact between the father and the children – Where the trial judge ordered that the father be restrained from bringing further parenting applications without leave – Where the father’s proposed Notice of Appeal was filed seven months out of time – Where the father contends the delay was caused by his involvement in multiple other proceedings – Where the proposed appeal is not futile but the reason for the delay is not adequate and the mother and children would suffer prejudice if the application is allowed – Application dismissed.

FAMILY LAW – APPEAL – Leave to appeal – Application to review a decision of a Registrar – Where the father was ordered to pay the mother’s costs in previous proceedings – Where those costs were assessed by a Registrar pursuant to Rule 19.31 of the Family Law Rules – Where there was no objection to the Registrar’s preliminary assessment – Where the costs order was made in accordance with the Rules – Where no application was made to a judge for a review of the Registrar’s decision – Where the application is incompetent – Application dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) rr 19.23, 19.26, 19.29, 19.30, 19.31, 19.38, 19.56, 22.03

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Gallo v Dawson (1990) 93 ALR 479
McIntyre and McIntyre (1994) FLC 92-468
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

SCVG

RESPONDENT:

KLD

FILE NUMBER:

SYC

4380

2008

FIRST APPEAL NUMBER:

107

2013

SECOND APPEAL NUMBER:

174

2015

DATE DELIVERED:

24 February 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

3 November 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 February 2015

LOWER COURT MNC:

[2015] FamCA 110

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Messner

SOLICITOR FOR THE RESPONDENT:

MacPhillamy’s Lawyers

Orders

The Application in Appeal EA 174 of 2015 filed on 15 October 2015 for an extension of time to file a Notice of Appeal against the orders of the Honourable Justice Cronin made on 27 February 2015 is dismissed.
The Application in Appeal EA 107 of 2013 filed on 9 October 2015 for leave to seek a review of a Costs Assessment Order made on 9 October 2014 is dismissed.
The applicant is to pay the respondent’s costs of and incidental to the applications, such costs to be agreed or assessed and to be paid within twenty eight (28) days following such agreement or assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved by the Chief Justice pursuant to…

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 SCVG & KLD (No 2)

Details

AGLC: SCVG & KLD (No 2) [2016] FamCAFC 23
Case: [2016] FamCAFC 23
Decision Date: 24 February 2016

CaseChat Overview and Summary

The case of SCVG & KLD (No 2) involved an appeal by the father against final parenting orders made after a protracted ten-year litigation. The final orders stipulated no face-to-face contact between the father and the children, with an additional restriction preventing the father from bringing further parenting applications without leave. The father filed a proposed Notice of Appeal seven months beyond the permitted timeframe, citing his involvement in multiple other proceedings as the reason for the delay. The mother and children argued that the delay would cause them prejudice. The case was heard in the Family Court of Australia.

The court addressed two primary legal issues. First, whether the delay in filing the Notice of Appeal was justifiable and whether the mother and children would suffer prejudice if the application was allowed. Second, whether the application to review a decision of a Registrar concerning a costs order was competent, given that no objection was made to the preliminary assessment and the costs order was in accordance with the Family Law Rules. The court considered the relevant provisions of the Family Law Act 1975 and the Family Law Rules 2004.

The court held that the delay in filing the Notice of Appeal was not adequately justified, and the mother and children would suffer prejudice if the application was allowed. Consequently, the application for an extension of time to file the Notice of Appeal was dismissed. Regarding the second issue, the court found that the application to review the Registrar's decision on the costs order was incompetent because no objection was made to the Registrar's assessment and no application for review was made to a judge. Consequently, the application to review the costs order was dismissed.

The court ordered that the applicant pay the respondent's costs of and incidental to the applications, to be agreed upon or assessed and paid within twenty-eight days following such agreement or assessment.

Orders

Orders of the court

The Application in Appeal EA 174 of 2015 filed on 15 October 2015 for an extension of time to file a Notice of Appeal against the orders of the Honourable Justice Cronin made on 27 February 2015 is dismissed.

The Application in Appeal EA 107 of 2013 filed on 9 October 2015 for leave to seek a review of a Costs Assessment Order made on 9 October 2014 is dismissed.

The applicant is to pay the respondent’s costs of and incidental to the applications, such costs to be agreed or assessed and to be paid within twenty eight (28) days following such agreement or assessment.

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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