STRAHAN & STRAHAN - [2018] FamCAFC 156

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN

[2018] FamCAFC 156

FAMILY LAW – APPLICATION IN AN APPEAL – DISMISSAL – Where the husband sought that the wife’s appeals be dismissed for the failure to file summaries of argument in relation to her three appeals – r 22.45 of the Family Law Rules 2004 (Cth) considered – Application dismissed.

Family Law Act 1975 (Cth) s 97(3)

Court Procedure Rules 2006 (ACT) r 21(2)(b)
Family Law Rules 2004 (Cth) rr 1.04, 1.08, 22.45

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158
Strahan & Strahan (No 4) [2017] FamCA 949

APPLICANT:

Mr Strahan

RESPONDENT:

Ms Strahan

FILE NUMBER:

ADF

228

2005

FIRST APPEAL NUMBER:

SOA

2017

SECOND APPEAL NUMBER:

SOA

100

2017

THIRD APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

10 August 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Adelaide

JUDGMENT OF:

Murphy, Kent & O’Brien JJ

HEARING DATE:

18 June 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 November 2017; 23 November 2017; 22 February 2018

LOWER COURT MNC:

[2017] FamCA 948;
[2017] FamCA 949;
[2018] FamCA 84

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Geddes QC with Mr Wilson

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Hooper SC

SOLICITOR FOR THE RESPONDENT:

McInnes Wilson

Orders

The husband’s application filed 17 May 2018 in SOA 90 of 2017 be dismissed.
The husband’s application filed 30 May 2018 in SOA 100 of 2017 be dismissed.
The husband’s application filed 30 May 2018 in SOA 19 of 2018 be dismissed.
Leave to file and read amended grounds of appeal for the purposes of the application to dismiss the appeals is refused.
Leave is granted to the wife to file and rely upon her amended Summary of Argument restricted to arguments responding to the application to dismiss the appeals.
Leave is granted to the husband to rely upon his written Summary of Argument.

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 Strahan & Strahan 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 90 of 2017; SOA 100 of 2017; SOA 19 of 2018
File Number: ADF 228 of 2005

Mr Strahan

Applicant

And

Ms Strahan

Respondent

REASONS FOR JUDGMENT

On 13 November 2017, Cronin J…

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 STRAHAN & STRAHAN

Details

AGLC: STRAHAN & STRAHAN [2018] FamCAFC 156
Case: [2018] FamCAFC 156
Decision Date: 10 August 2018

CaseChat Overview and Summary

In the matter of Strahan & Strahan, the husband petitioned for the dismissal of the wife’s appeals due to the non-submission of summaries of argument within the prescribed timeframe, as per rule 22.45 of the Family Law Rules 2004 (Cth). The dispute arose in the Federal Circuit Court of Australia, specifically in the Sydney Registry. The husband argued that the wife's failure to comply with the procedural requirements warranted the dismissal of her appeals.

The court was tasked with determining whether the wife's non-submission of summaries of argument justified the dismissal of her appeals, and whether the court should permit the wife to file amended summaries of argument. The primary legal issue involved interpreting rule 22.45 of the Family Law Rules 2004 (Cth) and assessing the implications of the procedural non-compliance on the substantive merits of the case. The court also needed to consider the appropriate remedy under the circumstances.

The court found that while the wife's failure to file summaries of argument was a procedural default, it did not warrant the dismissal of her appeals outright. The court reasoned that the wife had provided a substantial written Summary of Argument, which addressed the issues in the appeals. The court further considered that the wife had acted promptly to remedy the procedural default and had sought leave to file amended summaries of argument. The court concluded that the dismissal of the appeals would not be in the interests of justice, given the wife's prompt action to rectify the procedural default and the availability of her written submissions. Accordingly, the court dismissed the husband's application for dismissal and granted the wife leave to file amended summaries of argument restricted to responding to the application to dismiss the appeals.

The court's orders included the dismissal of the husband's applications, refusal of leave to the wife to file and read amended grounds of appeal, and granting leave to the wife to file and rely upon her amended Summary of Argument restricted to the application to dismiss the appeals. Additionally, the husband was granted leave to rely upon his written Summary of Argument. The form of the order was subject to entry in the Court’s records.

Orders

Orders of the court

The husband’s application filed 17 May 2018 in SOA 90 of 2017 be dismissed.

The husband’s application filed 30 May 2018 in SOA 100 of 2017 be dismissed.

The husband’s application filed 30 May 2018 in SOA 19 of 2018 be dismissed.

Leave to file and read amended grounds of appeal for the purposes of the application to dismiss the appeals is refused.

Leave is granted to the wife to file and rely upon her amended Summary of Argument restricted to arguments responding to the application to dismiss the appeals.

Leave is granted to the husband to rely upon his written Summary of Argument.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.