Sitwell & Sitwell (No. 2) - [2014] FamCAFC 84

FAMILY COURT OF AUSTRALIA

SITWELL & SITWELL (NO. 2)

[2014] FamCAFC 84

FAMILY LAW – APPEAL – Application for summary dismissal of appeal – Where the appeal concerned dismissal of an application that the trial judge disqualify himself – Where the trial judge has retired – Where the appeal concerned the dismissal of an application to extend time for the husband to purchase a business which has since been sold - Whether the appeal is considered nugatory – Where the fact that a judge has retired does not make an appeal against a disqualification application an appeal without utility – Where it is open to the appellant to argue that orders made were impugned by apprehended bias – HELD – Application dismissed.

Family Law Act 1975 (Cth): s 79

Batey-Elton & Elton (Review) [2010] FamCAFC 71
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251
Sitwell & Sitwell [2013] FamCAFC 54

APPLICANT:

Ms Sitwell

RESPONDENT:

Mr Sitwell

FILE NUMBER:

PAC

5769

2010

APPEAL NUMBER:

2013

ORDERS MADE:

2 May 2014

DATE DELIVERED:

13 May 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ainslie-Wallace & Ryan JJ

HEARING DATE:

2 May 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 March 2013

LOWER COURT MNC:

[2013] FamCA 199

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Jamieson of Champion Legal

FOR THE RESPONDENT:

In Person

Orders made 2 may 2014

The application in an appeal filed on 17 April 2014 be dismissed.
Upon the oral application of the appellant (respondent to this application) for an extension of time to file written submissions, the written submissions in appeal EA 26 of 2013 be filed and served by 4:00 pm on 30 May 2014.
Should the appellant (respondent to this application) fail to file and serve the submissions on or before the due date, appeal EA 26 of 2013 filed 15 March 2013 be dismissed.
The respondent (applicant in this application) to appeal EA 26 of 2013 file and serve written submissions by 4:00 pm on 20 June 2014.
The appellant (respondent to this application) pay the costs of the respondent (applicant to this application) to be fixed in the sum of $2,500.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sitwell & Sitwell (No. 2)l has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 26 of 2013
File Number: PAC 5769 of 2010

Ms Sitwell

Applicant

And

Mr Sitwell

Respondent

REASONS FOR JUDGMENT

This is an application by Ms Sitwell (“the wife”) that the appeal filed by Mr Sitwell (“the husband”) on 15 March 2013 be dismissed. We dismissed the wife’s application and made other orders in relation to the appeal. These are our reasons for so doing.
The appeal concerns orders made by Collier J on 14 March 2013 whereby the husband’s application…

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 Sitwell & Sitwell (No. 2)

Details

AGLC: Sitwell & Sitwell (No. 2) [2014] FamCAFC 84
Case: [2014] FamCAFC 84
Decision Date

CaseChat Overview and Summary

The Family Court of Australia was presented with an application by Ms Sitwell to dismiss an appeal filed by Mr Sitwell. The appeal concerned orders made by a trial judge, Collier J, who had dismissed the husband’s application for the judge to recuse himself and an application for an extension of time for the husband to purchase a business. Collier J had also dismissed the husband’s second application filed on 11 February 2013. The husband sought to extend the time for completion of the contract to purchase the business, for the business to pay him 50% of the net profits of the partnership, and for him to have full access to the business records. The business, GE Services, was previously conducted by the parties in a two-person partnership.

The legal issues in this case were whether the appeal against the disqualification application and the appeal against the dismissal of the husband’s application for an extension of time to purchase the business were nugatory and should be dismissed. The wife argued that the appeal was nugatory as Collier J had retired, GE Services had been sold, and final orders required an equal distribution between the parties of the net proceeds of the sale of the partnership. The husband argued that the appeal was not nugatory and he would be able to make cogent written submissions as to the merit of his appeal.

The court dismissed the wife’s application for summary dismissal and ruled that the appeal was not nugatory. The court noted that the mere fact that a judge had retired did not make an appeal against a disqualification application an appeal without utility. The court also found that it remained open to the appellant to argue the bias ground. The court accepted that there was little more to be done in relation to the presentation of the husband’s appeal and that it would be contrary to the interests of justice for the appeal to be summarily dismissed at that time. The court granted an extension of time for the husband to file his summary of argument on the condition that if he failed to comply with the timeframe imposed, his appeal would be dismissed.

In summary, the Family Court of Australia dismissed the wife's application for summary dismissal of the husband's appeal and granted an extension of time for the husband to file his summary of argument. The court ruled that the appeal was not nugatory and it remained open to the appellant to argue the bias ground. The court also ordered the husband to pay the wife's reasonable costs of the application, which was agreed to be $2,500.

Orders