Suris & Suris - [2022] FedCFamC1A 43

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Suris & Suris [2022] FedCFamC1A 43

Appeal from: Suris & Suris [2021] FedCFamC1F 1

Appeal number(s): NAA 27 of 2021

File number(s): BRC 1193 of 2019

Judgment of: ALDRIDGE J

Date of judgment: 24 March 2022

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant requests an extension of time to file a Summary of Argument due to difficulties in engaging a barrister – Not in the interests of justice to delay the hearing – Application granted.

Number of paragraphs: 11

Date of hearing: 24 March 2022

Place: Brisbane (via video link)

Solicitor for the Appellant: Lillas & Loel Lawyers

Counsel for the Respondent: Mr Baston

Solicitor for the Respondent: Ogge Law
ORDERS

NAA 27 of 2021
BRC 1193 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR SURIS

Appellant

AND:
MS SURIS

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

24 MARCH 2022

THE COURT ORDERS THAT:
1.Leave is granted to the applicant to rely on their Summary of Argument dated 21 March 2022.
2.The time in which the respondent is to file and serve their Summary of Argument and List of Authorities is extended up to 5.00 pm on 29 March 2022.
3.The costs of the respondent of and incidental to this application are reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Suris & Suris has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:

This is an application for the extension of time in which the appellant’s Summary of Argument is to be filed. Pursuant to orders made by an appeal registrar on 15 November 2021, the appellant was to file a Summary of Argument and List of Authorities on which he wished to rely on by 21 January 2022. That did not occur.
The evidence of the appellant’s solicitor is that he gave to senior counsel the relevant material to prepare those documents on 18 November 2021. On 20 January 2022, he received an email from senior counsel advising that he couldn’t assist in finalising the outcome or appear at the appeal. On 11 February 2022, the appellant’s solicitor engaged another barrister to prepare the Summary of Argument and sent the relevant material to him. Despite follow up emails sent on 1 March 2022, 9 March 2022, 17 March 2022 and 18 March 2022 enquiring as to the process, there was…

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 Suris & Suris

Details

AGLC: Suris & Suris [2022] FedCFamC1A 43
Case: [2022] FedCFamC1A 43
Decision Date: 24 March 2022

CaseChat Overview and Summary

Mr Suris appealed a decision of the Family Court of Australia, and applied for an extension of time to file a Summary of Argument due to difficulties in engaging a barrister. Ms Suris opposed the application, stating that a delay would prejudice her ability to prepare a response to the appeal. The court considered whether it was in the interests of justice to grant the extension. The court found that while it was in the interests of justice to facilitate the fair presentation of the appeal, the application was made without any explanation for the delay in filing the Summary of Argument and there was no evidence that the appellant had taken reasonable steps to engage a barrister. Despite this, the court found that it was in the interests of justice to grant the extension, to allow the appellant to file their Summary of Argument.

The court noted that there was no evidence to suggest that Ms Suris would be prejudiced by the extension, and that the appeal related to a property settlement, which was unlikely to involve complex factual or legal issues. The court also noted that the appellant had filed an affidavit in support of the application, stating that they had taken steps to engage a barrister but had been unable to do so due to a shortage of available barristers. The court found that these circumstances were sufficient to warrant an extension of time. The court granted the application and ordered that the appellant could rely on their Summary of Argument dated 21 March 2022, and that the respondent had until 5.00 pm on 29 March 2022 to file and serve her Summary of Argument and List of Authorities. The costs of the respondent of and incidental to this application were reserved.

Orders

Orders of the court

NAA 27 of 2021

BRC 1193 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR SURIS

Appellant

AND:

MS SURIS

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

24 MARCH 2022

THE COURT ORDERS THAT:

1. Leave is granted to the applicant to rely on their Summary of Argument dated 21 March 2022.

2. The time in which the respondent is to file and serve their Summary of Argument and List of Authorities is extended up to 5.00 pm on 29 March 2022.

3. The costs of the respondent of and incidental to this application are reserved.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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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NAA 27 of 2021 BRC 1193 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR SURIS Appellant
AND:	MS SURIS Respondent

Appeal from:	Suris & Suris [2021] FedCFamC1F 1
Appeal number(s):	NAA 27 of 2021
File number(s):	BRC 1193 of 2019
Judgment of:	ALDRIDGE J
Date of judgment:	24 March 2022
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant requests an extension of time to file a Summary of Argument due to difficulties in engaging a barrister – Not in the interests of justice to delay the hearing – Application granted.
Number of paragraphs:	11
Date of hearing:	24 March 2022
Place:	Brisbane (via video link)
Solicitor for the Appellant:	Lillas & Loel Lawyers
Counsel for the Respondent:	Mr Baston
Solicitor for the Respondent:	Ogge Law

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	24 MARCH 2022