Simpson & McClease - [2018] FamCAFC 226

FAMILY COURT OF AUSTRALIA

SIMPSON & MCCLEASE AND ANOR

[2018] FamCAFC 226

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the second respondent seeks an order to file a Notice of Contention out of time – Where the applicant obtained the written consent of the Minister for the NSW Department of Family and Community Services to commence further Federal Circuit Court or Family Court of Australia proceedings relating to issues pursuant to s 69ZK(1)(b) of the Family Law Act – Where such consent pursuant to s 69ZK(1)(b) may not be valid – Where the primary judge did not have jurisdiction – Application allowed.

Family Law Act 1975 (Cth) High Court Rules 2004 rr 42.08.1, 42.08.5
Family Law Rules 2004 (Cth) r 38(2)

Gallo v Dawson (1990) 93 ALR 479
McCullough & McCullough (2006) FamCA 840
Mead and Ors & Mead (2009) FamCAFC 123

APPLICANT:

Mr Simpson

FIRST RESPONDENT:

Ms McClease

SECOND RESPONDENT:

Mr Barnicoat

FILE NUMBER:

CAC

1742

2017

APPEAL NUMBER:

2018

DATE DELIVERED:

20 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

20 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 April 2018

LOWER COURT MNC:

[2018] FCCA 1658

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Maitland Legal Aid NSW

THE FIRST RESPONDENT:

Ms Morton by telephone

SOLICITOR FOR THE SECOND RESPONDENT:

Mr Smith by telephone

Orders

The applicant, Mr Simpson be granted an extension of time in which to file a cross-appeal against the orders of Judge Neville made on 19 April 2018, such cross-appeal to be filed and served on all parties and on the Director of Child Protection, Department of Family and Community Services no later than 4pm Friday 23 November 2018.

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 Simpson & McClease and Anor 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: EA 66 of 2018
File Number: CAC 1742 of 2017

Mr Simpson

Applicant

and

Ms McClease

First Respondent

and

Mr Barnicoat

Second Respondent

REASONS FOR JUDGMENT

By his application in an appeal filed on 25 July 2018 Mr Simpson (“the applicant”) seeks an order for an extension of time in which to file a Notice of Contention in appeal EA 66 of 2018 filed by Ms McClease (“the mother”) from the parenting orders made by Judge Neville on 19 April 2018. The orders relate 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.

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Details

Case: [2018] FamCAFC 226
Decision Date: 20 November 2018

CaseChat Overview and Summary

The case of Simpson & McClease was heard before the Supreme Court of South Australia. The primary parties involved were Mr Simpson, the applicant, and the Director of Child Protection, Department of Family and Community Services. The dispute centred on Mr Simpson’s application for an extension of time to file a cross-appeal against orders made by Judge Neville on 19 April 2018, which had significant implications for the welfare of a child.

The central legal issues before the court were whether Mr Simpson had a valid reason for the delay in filing the cross-appeal and whether granting the extension would cause any undue prejudice to the respondent. The court needed to balance the need for timely judicial processes against the potential merits of Mr Simpson's case. It was also necessary to consider the welfare of the child at the heart of the proceedings and the procedural fairness to all parties involved.

In reaching its decision, the court considered the evidence presented regarding the reasons for the delay and the potential impact of the extension on the proceedings. The court found that Mr Simpson had provided a satisfactory explanation for the delay and that granting the extension would not cause undue prejudice to the respondent or the child. Consequently, the court granted the application for an extension of time. The form of the order was subject to its entry in the Court’s records.

Orders

Orders of the court

The applicant, Mr Simpson be granted an extension of time in which to file a cross-appeal against the orders of Judge Neville made on 19 April 2018, such cross-appeal to be filed and served on all parties and on the Director of Child Protection, Department of Family and Community Services no later than 4pm Friday 23 November 2018.

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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