SELBY & ROBILLIARD - [2018] FamCAFC 159

FAMILY COURT OF AUSTRALIA

SELBY & ROBILLIARD

[2018] FamCAFC 159

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applications in the alternative for adjournment of appeal and extension of time to file documents – Where procedural orders were made by the Appeals Registrar listing the appeal and fixing a timetable – Where the applicant provides explanation for the need for an adjournment or extension of time – Where there is no undue prejudice – Adjournment granted and fresh procedural orders made.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Selby

RESPONDENT:

Ms Robilliard

FILE NUMBER:

MLC

7778

2015

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

13 August 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

13 August 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 April 2018

LOWER COURT MNC:

[2018] FamCA 214

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Matta

SOLICITOR FOR THE APPELLANT:

Mills Oakley

COUNSEL FOR THE RESPONDENT:

Mr Marchetti

SOLICITOR FOR THE RESPONDENT:

RNG Lawyers

Orders

The hearing of the appeal fixed for 31 August 2018 is vacated.
The time for compliance with Order 3 made on 17 July 2018 is extended to 17 August 2018.
The time for compliance with Order 4(a) made on 17 July 2018 is extended to 31 August 2018.
The time for compliance with Order 4(b) made on 17 July 2018 is extended to 28 September 2018.
Save as to costs, the Amended Application in an Appeal filed on 10 August 2018 is dismissed.
IT IS FURTHER ORDERED:
The oral applications made by each party for costs against the other is dismissed.

IT IS NOTED:

A. Subject to compliance with these orders, the parties expect the appeal will be listed for hearing before the Full Court in Melbourne in the November 2018 sittings.

B. The parties do not require the publication of reasons for the dismissal of Order 6 hereof.

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 Selby & Robilliard 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: SOA 30 of 2018
File Number: MLC 7778 of 2015

Mr Selby

Applicant

And

Ms Robilliard

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The appeal in these proceedings is currently listed for hearing on Friday 31 August 2018. Presently pending before the Court is the applicant husband’s application to adjourn the hearing of the appeal.
The appeal is against orders made by Cronin J on 9…

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 SELBY & ROBILLIARD

Details

AGLC: SELBY & ROBILLIARD [2018] FamCAFC 159
Case: [2018] FamCAFC 159
Decision Date: 13 August 2018

CaseChat Overview and Summary

Selby and Rilliard were the parties involved in this appeal in the Family Court of Australia. The dispute centred around applications in the alternative for adjournment of the appeal and extension of time to file documents. The Appeals Registrar had previously made procedural orders listing the appeal and fixing a timetable. The applicant sought an adjournment and extension of time, providing explanations for the need for the adjournment and extension of time. The court was required to decide whether the application should be granted, considering whether there was any undue prejudice to the other party.

The court considered the explanations provided by the applicant and found that there was no undue prejudice to the other party. The court noted that the applicant had acted reasonably and promptly in seeking the adjournment and extension of time. The court found that the application should be granted and made fresh procedural orders, vacating the hearing of the appeal and extending the time for compliance with certain orders. The court also dismissed the oral applications for costs made by each party against the other.

In summary, the court granted the application for adjournment and extension of time, and made fresh procedural orders. The court found that there was no undue prejudice to the other party and that the applicant had acted reasonably and promptly in seeking the adjournment and extension of time. The oral applications for costs were dismissed. The final orders included vacating the hearing of the appeal, extending the time for compliance with certain orders, and dismissing the oral applications for costs.

Orders

Orders of the court

The hearing of the appeal fixed for 31 August 2018 is vacated.

The time for compliance with Order 3 made on 17 July 2018 is extended to 17 August 2018.

The time for compliance with Order 4(a) made on 17 July 2018 is extended to 31 August 2018.

The time for compliance with Order 4(b) made on 17 July 2018 is extended to 28 September 2018.

Save as to costs, the Amended Application in an Appeal filed on 10 August 2018 is dismissed.

IT IS FURTHER ORDERED:

The oral applications made by each party for costs against the other is dismissed.

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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