SELLINK & SELLINK - [2017] FamCAFC 30

FAMILY COURT OF AUSTRALIA

SELLINK & SELLINK

[2017] FamCAFC 30

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – reinstatement – where an appeal against final parenting orders was deemed abandoned when appeal books were not filed in accordance with procedural orders – where the mother alleged that this failure was because of negligence by her former solicitor – where the mother took all reasonable steps to rectify the default upon the appeal being abandoned – where the father did not challenge these facts – where counsel for the mother conceded the notice of appeal had limited prospect of success and expressed an intention to file an amended notice of appeal – where the proposed amended grounds of appeal contained real issues to be determined – appeal reinstated.

FAMILY LAW – COSTS – where counsel for the mother foreshadowed an application for costs against the former solicitor – where there may be issues sought to be argued by the solicitor in respect of any costs order – where the question of costs for this application was reserved for the appeal hearing – costs reserved.

Family Law Act 1975 (Cth), s 117(2A)
Family Law Rules 2004 (Cth), rr 22.09, 22.21

Bernieres and Anor & Dhopal and Anor [2016] FamCAFC 149

Gallo v Dawson (1990) 93 ALR 479

Joshua & Joshua (1997) FLC 92-767

Malak & Mairie [2016] FamCAFC 112

Molloy & Molloy [2016] FamCAFC 264

Sinnott & Firth (No 2) (2013) 51 Fam LR 28

Tormsen & Tormsen (1993) FLC 92-392

APPLICANT:

Ms Sellink

RESPONDENT:

Mr Sellink

INDEPENDENT CHILDREN’S LAWYER:

Patrick Dooley

FILE NUMBER:

BRC

7638

2013

APPEAL NUMBER:

2016

DATE DELIVERED:

1 March 2017

PLACE DELIVERED:

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

1 March 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT DATE OF ORDERS:

4 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bunning

SOLICITOR FOR THE APPLICANT:

Hopgood Ganim

FOR THE RESPONDENT:

Mr Rosen

SOLICITOR FOR THE RESPONDENT:

Rosen Lawyers

FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not participating in Appeal

Orders

The appeal, number NA 13 of 2016, commenced by Notice of Appeal filed 29 February 2016 be reinstated forthwith.
On or before 4.00 pm on 29 March 2017 the appellant mother cause to be filed in the Brisbane Registry:
(a) An Amended Notice of Appeal; and
(b)Four copies of the appeal books prepared in accordance with the settled appeal index attached to the orders made by Registrar Kane on 30 May 2016; and
(c)The certificate pursuant to rule 20.20(2) of the Family Law Rules 2004 (Cth).
On or before 4.00 pm on 29 March 2017 the appellant mother cause to be delivered to each of the other parties to the appeal two copies of the appeal books and a copy of the said certificate.
Pursuant to rule 22.21 the appeal will be taken to be abandoned if the appellant mother fails to comply with any of the requirements of Orders 2 and 3 hereof.
That the…

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.

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Details

AGLC: SELLINK & SELLINK [2017] FamCAFC 30
Case: [2017] FamCAFC 30
Decision Date: 1 March 2017

CaseChat Overview and Summary

In the matter of Sellink & Sellink, the appellant, who was the mother in the original family law matter, sought reinstatement of her appeal against final parenting orders. The appeal was initially deemed abandoned due to the failure to file appeal books in accordance with procedural orders. The mother alleged that this failure was due to negligence by her former solicitor. The father did not challenge these facts, and the mother's counsel conceded that the notice of appeal had limited prospects of success but expressed an intention to file an amended notice of appeal. The court had to decide whether the appeal could be reinstated and what orders should be made regarding the filing of amended notices and appeal books, as well as the timing of the summaries of argument and lists of authorities.

The court found that the mother had taken all reasonable steps to rectify the default after the appeal was abandoned. The proposed amended grounds of appeal contained real issues to be determined. The court determined that the appeal should be reinstated and made orders for the filing of an amended notice of appeal and appeal books, as well as the timing of the summaries of argument and lists of authorities. The court also reserved the question of costs for the appeal hearing.

The appeal was reinstated, and the appellant mother was required to file an amended notice of appeal and appeal books by a specified date. The other parties to the appeal were also required to be served with copies of the appeal books and a certificate. Failure to comply with these requirements would result in the appeal being taken to be abandoned. The court also set deadlines for the filing of summaries of argument and lists of authorities and ordered the appeal to be listed for hearing in the next available Brisbane Full Court sittings. The costs of and incidental to the application in an appeal were reserved to the Full Court hearing the appeal, to be heard contemporaneously with an application that the mother’s former solicitor pay any such costs as might be ordered to be paid by her.

Orders

Orders of the court

The appeal, number NA 13 of 2016, commenced by Notice of Appeal filed 29 February 2016 be reinstated forthwith.

On or before 4.00 pm on 29 March 2017 the appellant mother cause to be filed in the Brisbane Registry:

(a) An Amended Notice of Appeal; and

(b) Four copies of the appeal books prepared in accordance with the settled appeal index attached to the orders made by Registrar Kane on 30 May 2016; and

On or before 4.00 pm on 29 March 2017 the appellant mother cause to be delivered to each of the other parties to the appeal two copies of the appeal books and a copy of the said certificate.

Pursuant to rule 22.21 the appeal will be taken to be abandoned if the appellant mother fails to comply with any of the requirements of Orders 2 and 3 hereof.

That the appellant mother file and serve the Summary of Argument and List of Authorities upon which she wishes to rely by 4.00 pm on Thursday 26 April 2017.

That the respondent father file and serve the Summary of Argument and List of Authorities upon which he wishes to rely by 4.00 pm on Thursday 24 May 2017.

That the Independent Children’s Lawyer file and serve the Summary of Argument and List of Authorities upon which he wishes to rely by 4.00 pm on Thursday 21 June 2017.

In the event that, upon compliance with Order 2, it be considered that the appeal will take more than half a day, the appellant mother shall cause the Appeals Registrar to be notified of that fact and of her new estimate by not later than 4.00 pm on 28 June 2017.

That the appeal be listed for hearing in the next available Brisbane Full Court sittings, consequent upon compliance with the orders otherwise made herein.

10.

The costs of and incidental to the Application in an Appeal be reserved to the Full Court hearing the appeal so as to be heard contemporaneously with an application that the mother’s former solicitor, Mr X of Firm X pay personally any such costs as might be ordered to be paid by her of and incidental to the Application and Appeal.

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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