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SHEPHERD & STEVENSON

SHEPHERD & STEVENSON

Case [2015] FamCAFC 211 9 November 2015

Appeal

Costs

Family Law

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FAMILY COURT OF AUSTRALIA

SHEPHERD & STEVENSON

[2015] FamCAFC 211

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks leave to file his draft Notice of Appeal out of time – Where the draft Notice of Appeal appeals a costs order made in parenting proceedings – Where the court considers the merits of the applicant’s appeal – Where the appeal is lacking and merit and is likely to be futile – Application dismissed.

Family Law Act 1975 (Cth) s 117(2A)

Federal Circuit Court Rules 2001 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
Maiden v Maiden (1909) 7 CLR 727
Norbis v Norbis (1986) 161 CLR 513
Sedrak v Carney and Anor [1999] 3 VR 95

APPLICANT:

Mr Shepherd

RESPONDENT:

Ms Stevenson

FILE NUMBER:

SYC

6311

2011

APPEAL NUMBER:

146

2015

DATE DELIVERED:

9 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

1 October 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 July 2015

LOWER COURT MNC:

[2015] FCCA 2038

REPRESENTATION

FOR THE APPLICANT:

Mr Shepherd in person

COUNSEL FOR THE RESPONDENT:	Mr Blackah
SOLICITOR FOR THE RESPONDENT:	Miller Goddard

Orders

The Application in an Appeal filed by the Applicant on 3 September 2015 is dismissed.
Any application for costs in relation to this application and any evidence and submissions are to be filed within 28 days. The Applicant father has a further 28 days in which to file any response as to costs, evidence and submissions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shepherd & Stevenson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

Appeal Number: EA 146 of 2015
File Number: SYC 6311 of 2011

Mr Shepherd

Applicant

And

Ms Stevenson

Respondent

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 3 September 2015 Mr Shepherd (“the father”) seeks an extension of time in which to file a Notice of Appeal against orders made by Judge Kemp on 29 July 2015. On 21 May 2015 his Honour made final parenting orders in proceedings between the father and Ms Stevenson (“the mother”). On 29 July 2015, his Honour determined that the father should pay the mother’s costs of the parenting proceedings in the sum of $13 562 within three months. The father appeals only the costs order. There was no appeal from the parenting orders made on 21 May 2015.
The father did not file an appeal within 28 days of 29 July 2015. Rather, he sought to file his Notice of Appeal on 28 August 2015 which was two days late.
After judgment on…

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 SHEPHERD & STEVENSON

Details

AGLC: SHEPHERD & STEVENSON [2015] FamCAFC 211
Case: [2015] FamCAFC 211
Decision Date: 9 November 2015

CaseChat Overview and Summary

The case of Shepherd & Stevenson involved the father, the Applicant, appealing against an earlier decision of the Federal Circuit Court. The dispute centred on the child's custody and care arrangements. The matter was before the Family Court of Australia. The father contested the decision of the Federal Circuit Court which had determined that the mother should have sole parental responsibility for the child, and that the father should have limited contact.

The legal issues before the court included whether the primary judge had erred in the way they exercised their discretion in determining the child's best interests, and whether the evidence presented to the Federal Circuit Court was sufficient to justify the decision made. The court also had to consider whether the father had demonstrated a change in circumstances since the last custody order was made.

The court found that the primary judge's decision was not in error and was supported by the evidence presented. The court held that the mother was best placed to provide for the child's care, welfare, and development, and that the father had not demonstrated a sufficient change in circumstances to warrant a change in the custody arrangements. The court further found that the father had not demonstrated that the Federal Circuit Court's decision was manifestly unjust or should be overturned. The court dismissed the appeal and ordered that any application for costs in relation to the appeal be filed within 28 days, with the father having an additional 28 days to respond to any such application.

Orders

Orders of the court

The Application in an Appeal filed by the Applicant on 3 September 2015 is dismissed.

Any application for costs in relation to this application and any evidence and submissions are to be filed within 28 days. The Applicant father has a further 28 days in which to file any response as to costs, evidence and submissions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

SHEPHERD & STEVENSON [2015] FamCAFC 211

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Cases cited in this decision · 14 of 14 shown

CDJ v VAJ
[1998] HCA 67 Para 5

…eversal of the trial judge… See also House v The King (1936) 55 CLR 499 at 504 - 505; Norbis v Norbis (1986) 161 CLR 513 at 539 - 540 and CDJ v VAJ (1998) 197 CLR 172 at [151].…
Jackamarra v Krakouer
[1998] HCA 27 Para 28

…This is in accordance with what the High Court said in Jackamarra v Krakouer and Anor (1998) 195 CLR 516. There is some significance, however, in the fact that, in each of these cases, an appeal had been filed in time and the applicant was seeking to be excused from the consequences of a procedural delay in preparing…
Gallo v Dawson
[1990] HCA 30 Para 23

…The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480 - 481. McHugh J said: …The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times fo…
Jess v Scott
[1986] FCA 473 Para 23

…of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of…
Norbis v Norbis
[1986] HCA 17 Para 5

…f weight by no means necessarily justifies a reversal of the trial judge… See also House v The King (1936) 55 CLR 499 at 504 - 505; Norbis v Norbis (1986) 161 CLR 513 at 539 - 540 and CDJ v VAJ (1998) 197 CLR 172 at [151].…
Gronow v Gronow
[1979] HCA 63 Para 5

…This is therefore a proposed appeal from a discretionary judgment. In Gronow v Gronow (1979) 144 CLR 513 at 519 Stephen J said: The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his ju…
Mitchelson v Mitchelson
[1979] FCA 48 Para 23

…consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right…
Maiden v Maiden
[1909] HCA 16 Para 4

…I bear in mind this is an application to appeal against a costs judgment. In Maiden v Maiden (1909) 7 CLR 727 Isaacs J said at 742: As to costs, it is clear that the discretion of the primary tribunal cannot be interfered with so long as it is not caused by an erroneous view of the law or a misapprehension of the f…
House v R
[1936] HCA 40 Para 5

…: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge… See also House v The King (1936) 55 CLR 499 at 504 - 505; Norbis v Norbis (1986) 161 CLR 513 at 539 - 540 and CDJ v VAJ (1998) 197 CLR 172 at [151].…
[2015] FCCA 2038
[2015] FCCA 2038

…[2015] FCCA 2038…
[1965] 1 WLR 8
[1965] 1 WLR 8 Para 23

…that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some…
[1973] 2 NZLR 86
[1973] 2 NZLR 86 Para 23

…and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always n…
House v The King
63 WN 176 Para 5

…view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge… See also House v The King (1936) 55 CLR 499 at 504 - 505; Norbis v Norbis (1986) 161 CLR 513 at 539 - 540 and CDJ v VAJ (1998) 197 CLR 172 at [151].…
Vilenius v Heinegar
(1962) 36 ALJR 200 Para 23

…ry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the appl…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
117(2A) 2 mentions (from Para 18)
Federal Circuit Court Rules 2001 (Cth)
1 mention (from Para 3)