SPENCER & SPENCER - [2015] FamCAFC 89

FAMILY COURT OF AUSTRALIA

SPENCER & SPENCER

[2015] FamCAFC 89

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant sought an extension of time to appeal an order dismissing her contravention application – The proposed appeal does not raise a substantial issue and is unlikely to succeed – Application dismissed – Order for the applicant to pay the costs of the respondent and the Independent Children’s Lawyer.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant sought an extension of time to appeal interlocutory orders made in financial proceedings – The proposed appeal does not raise a substantial issue and leave is required in any event – Application dismissed – Order for the applicant to pay the costs of the respondent.

Family Law Act 1975 (Cth) – s 117

Gallo v Dawson (1990) 93 ALR 479
Joshua v Joshua (1997) FLC 92-767

APPLICANT

Ms Spencer

RESPONDENT:

Mr Spencer

FILE NUMBER:

PTW

7180

2010

APPEAL NUMBER:	WA	7L	of	2015
WA	13	of	2015

DATE DELIVERED:

23 April 2015

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

23 April 2015

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

7L: 10 November 2014

13: 16 June 2014

LOWER COURT MNC:

7L: N/A
13: [2014] FCWA 70

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Turley

SOLICITOR FOR THE RESPONDENT:

Biddulph & Turley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Cohen

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid WA

Orders

WA 7L OF 2015

The application in an appeal be dismissed.
The applicant pay the respondent’s costs of and incidental to the application as agreed and in default of agreement, as assessed.

WA 13 OF 2015

The application in an appeal be dismissed.
The applicant pay the respondent’s costs of and incidental to the application as agreed and in default of agreement, as assessed.
The applicant pay the costs of the Independent Children’s Lawyer, fixed in the sum of $280.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer & Spencer 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 PERTH

Appeal Number: WA 7L of 2015 & WA 13 of 2015
File Number: PTW 7180 of 2010

Ms Spencer

Applicant

And

Mr Spencer

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before me are two applications in an appeal filed by Ms Spencer (“the wife”), in which she seeks to obtain extensions of time to appeal against orders made by Moncrieff J.
The background to the matter is complex. There are currently six other appeals on foot, the most significant relating to final parenting orders made by Moncrieff J on 21 November 2014. It is hoped that these appeals will be ready for hearing before the Full Court in the October 2015 sittings. An extraordinary amount of…

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 SPENCER & SPENCER

Details

AGLC: SPENCER & SPENCER [2015] FamCAFC 89
Case: [2015] FamCAFC 89
Decision Date: 23 April 2015

CaseChat Overview and Summary

The cases of Spencer & Spencer involved two separate applications for extensions of time to appeal in family law matters. In the first case, the applicant sought an extension to appeal an order dismissing her contravention application, while in the second case, the applicant sought an extension to appeal interlocutory orders made in financial proceedings. Both applications were heard by the court, which was tasked with determining whether the proposed appeals raised substantial issues and whether leave to appeal was required.

The primary legal issues before the court were whether the proposed appeals raised substantial issues that warranted an extension of time and, in the second case, whether leave to appeal was necessary. The court had to assess the merits of the proposed appeals and the reasons for the delay in lodging the appeals. In both cases, the court found that the proposed appeals did not raise substantial issues and were unlikely to succeed. Furthermore, the court determined that leave was required in the second case.

The court dismissed both applications for extensions of time to appeal. The reasoning was that the proposed appeals did not raise substantial issues and were unlikely to succeed. Additionally, the court found that leave was necessary in the second case. Consequently, the court ordered the applicants to pay the respondents' costs of and incidental to the applications, as well as the costs of the Independent Children’s Lawyer in the first case.

In summary, the court dismissed the applications for extensions of time to appeal in both cases, finding that the proposed appeals did not raise substantial issues and were unlikely to succeed. The court also ordered the applicants to pay the respondents' costs of and incidental to the applications, as well as the costs of the Independent Children’s Lawyer in the first case.

Orders

Orders of the court

WA 7L OF 2015

The application in an appeal be dismissed.

The applicant pay the respondent’s costs of and incidental to the application as agreed and in default of agreement, as assessed.

WA 13 OF 2015

The application in an appeal be dismissed.

The applicant pay the respondent’s costs of and incidental to the application as agreed and in default of agreement, as assessed.

The applicant pay the costs of the Independent Children’s Lawyer, fixed in the sum of $280.

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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