SHEILL & MCMURR - [2014] FamCAFC 115

FAMILY COURT OF AUSTRALIA

SHEILL & MCMURR

[2014] FamCAFC 115

FAMILY LAW – APPEAL – Application in an Appeal – Where the mother sought an extension of time to file an appeal and expedition of the appeal – Where the evidence established an acceptable explanation for the mother’s failure to file a notice of appeal on time – Where the issues on appeal, if successful, could enable the court to set aside the orders – HELD – Appeal granted.

Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Ms Sheill

RESPONDENT:

Mr McMurr

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

5250

2007

APPEAL NUMBER:

2014

ORDERS MADE:

2 July 2014

DATE DELIVERED:

7 July 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

2 July 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 April 2014

LOWER COURT MNC:

[2014] FamCA 327

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Manning Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Spain

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders made 2 july 2014

Amended pursuant to Rule 17.02

That the time in which the Appellant Mother may file an appeal against orders of the Honourable Justice Foster made 14 April 2014 be extended to 4.00 pm on 4 July 2014.
That, the hearing of the appeal be expedited and will be heard by the Full Court sitting in Sydney on 16 July 2014 at 10.00 am.
Subject to any further order concerning the child’s attendance at X Public School orders 1 and 2 are subject to the mother’s compliance with the parties’ agreement:
(a)in the event the mother is unable to take the child to or from X Public School she agrees that on those days the child is in her care the father or the father’s mother at his request may do so; and
(b)on the basis the mother says she is presently unable to take the child to and from X Public School on the days the child is in her care the father or his mother will do so.
That the appeal books for the appeal comprise each of the following documents arranged in the following order:
1.Notice of Appeal to be filed on or before 4 July 2014;
2.Order of the Honourable Justice Johnston made on 4 September 2013 (as amended pursuant to the slip rule on 25 October 2013);
3.Order of the Honourable Justice Johnston made on 24 December 2013;
4.Order of the Honourable Justice Johnston made on 31 January 2014;
5.Order of the Honourable Justice Foster made on 11 April 2014;
6.Order of the Honourable Justice Foster made on 14 April 2014;
7.Reasons for Judgment of the Honourable Justice Johnston delivered 4 September 2013;
8.Reasons for Judgment of the Honourable Justice Foster delivered 14 April 2014;
9.Application in a Case filed by the father on 10 April 2014;
10.Affidavit of the father filed 10 April 2014;
11.Affidavit of 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: SHEILL & MCMURR [2014] FamCAFC 115
Case: [2014] FamCAFC 115
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal by Ms Sheill (the mother) against orders made by Foster J on 14 April 2014, which allowed the father to enrol their son in an autism intervention program at X Public School. The mother sought an extension of time to file a Notice of Appeal and for the appeal to be heard expeditiously. The father opposed the mother's application, arguing that she had failed to adequately explain her failure to appear at the hearing on 14 April 2014 and that the appeal lacked merit. The court was required to decide whether to grant the mother an extension of time to file a Notice of Appeal, expedite the appeal, and whether the issues raised on appeal warranted consideration.

The court found that the mother had provided an acceptable explanation for her failure to file a Notice of Appeal within the required time, as she had been on holidays and believed her former solicitor would appear on her behalf. The court also found that the mother had raised substantial issues on appeal, which if successful, could enable the court to set aside the orders made by the primary judge. The court considered the factors relevant to granting an extension of time, including the consequences for the parties and the child. The court found that the mother's inability to challenge the order other than by way of an appeal warranted greater weight and that the child's best interests required the situation to be addressed quickly. Therefore, the court granted the mother an extension of time to file a Notice of Appeal and ordered that the appeal be heard expeditiously.

The court made orders extending the time in which the mother could file a Notice of Appeal to 4.00 pm on 4 July 2014, expediting the hearing of the appeal to 16 July 2014 at 10.00 am, and directing the parties to prepare and file appeal books by specified dates. The court also made orders in relation to the attendance of the child at X Public School and excused the Independent Children's Lawyer from further participation in the appeal.

Orders