Sinnott and Firth - [2013] FamCAFC 58

FAMILY COURT OF AUSTRALIA

SINNOTT & FIRTH

[2013] FamCAFC 58

FAMILY LAW – APPEAL – APPLICATION TO FILE NOTICE OF APPEAL OUT OF TIME – where the appellant seeks to appeal final parenting orders made by Federal Magistrate in chambers – where reasons for judgment were received after the appellant’s application was filed – where the appellant did not provide an adequate explanation for the delay in filing the notice of appeal – where the respondent can point to no prejudice if the application is granted which could not otherwise be remedied by an order for costs – where the primary appeal grounds relate to an alleged lack of procedural fairness in the manner in which the final orders were made – whether the application ought be granted – application granted – appellant ordered to pay the respondent’s costs of and incidental to the application.

Family Law Act 1975 (Cth)
Federal Magistrates Court Rules 2001 (Cth)

Clivery & Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Sinnott

RESPONDENT:

Ms Firth

FILE NUMBER:

BRC

517

2011

APPEAL NUMBER:

2013

DATE DELIVERED:

9 April 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

9 April 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

19 March 2013

LOWER COURT MNC:

[2013] FMCAfam 229

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr O’Neill

SOLICITOR FOR THE APPELLANT:

Michelle Porcheron Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Shoebridge

SOLICITOR FOR THE RESPONDENT:

Jones Mitchell Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Fox of Barbara Fox Solicitors

Orders

The Application to extend the time within which to file the Notice of Appeal be granted.
The Appellant pay the Respondent’s costs of and incidental to today’s hearing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sinnott & Firth 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 BRISBANE

Appeal Number: NA8 of 2013
File Number: BRC517 of 2011

Mr Sinnott

Appellant

And

Ms Firth

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

The father of H (born October 2005) filed an application for parenting orders in the Federal Magistrates Court early in 2011. On 3 December 2012, Howard FM made final parenting orders. The father was not present in court when those orders were made but his solicitor was. The husband seeks to appeal those orders.
The father’s Notice of Appeal was not filed within 28 days of the orders as required by rule 22.03 of the Family Law Rules 2004. An order is sought by him to extend the time to file a Notice of Appeal pursuant to an application filed by him on 21 February 2013. These reasons relate to that application.
The procedural history leading to the making of the orders is not without significant difficulties and will need to be addressed in some detail…

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 Sinnott and Firth

Details

AGLC: Sinnott and Firth [2013] FamCAFC 58
Case: [2013] FamCAFC 58
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr. Sinnott (the appellant) appealed against final parenting orders made by the Federal Magistrate in chambers. The orders required the child to live with the mother and granted the mother sole parental responsibility for major long-term issues, subject to certain conditions. The appellant sought to extend the time to file a Notice of Appeal, which was not filed within the 28-day period as required by the Family Law Rules 2004. The court had to decide whether to grant the appellant's application to extend the time to file a Notice of Appeal and whether the appellant should pay the respondent's costs of and incidental to the application.

The court considered the principles applicable to the current application, primarily from the decision of the High Court in Gallo v Dawson (1990) 93 ALR 479. The court also considered the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. The court found that the appellant had not provided an adequate explanation for the delay in filing the Notice of Appeal and that the primary appeal grounds related to an alleged lack of procedural fairness in the manner in which the final orders were made. The court concluded that there was a real foundation for the proposed appeal and granted the application. The appellant was ordered to pay the respondent's costs of and incidental to the application.

The court's decision was based on the principles of Gallo v Dawson, the history of the proceedings, and the nature of the litigation. The court found that the appellant had not provided an adequate explanation for the delay in filing the Notice of Appeal, but that the potential grounds of appeal went to the very heart of what a legal system can be expected to deliver for litigants before it. The court also considered the utility of the appeal in practical terms but ultimately decided that the balance lies in granting the application which the appellant seeks. The appellant was ordered to pay the respondent's costs of and incidental to the application.

Orders