Syms and Syms (No 2) - [2020] FamCAFC 192

FAMILY COURT OF AUSTRALIA

SYMS & SYMS (NO. 2)

[2020] FamCAFC 192

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PROCEDURAL ORDERS – Appellant seeks multiple procedural orders in relation to appeal – Application for extension of time to file Summary of Argument – Application to issue and re‑issue subpoenas for production of documents – Authorised transcript – Further evidence – Application granted in part and otherwise dismissed.

Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(2)
Family Law Act 1975 (Cth) s 93A(2)
Government Information Public Access Act 2009 (NSW)

APPLICANT:

Ms Syms

RESPONDENT:

Mr Syms

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

1457

2018

APPEAL NUMBER:

EAA

120

2019

DATE DELIVERED:

7 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

22 July 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 October 2020

LOWER COURT MNC:

[2019] FamCA 724

REPRESENTATION

THE APPLICANT:

Self-represented

THE RESPONDENT:

Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That the time for filing Summaries of Argument be extended so that the mother files and serves her Summary of Argument by 19 August 2020, the father files and serves his Summary of Argument by 9 September 2020 and, the Independent Children’s Lawyer files and serves their Summary of Argument by 30 September 2020.
That the Independent Children’s Lawyer provide the mother and the father with copies of the “tender bundle” given to Dr M.
The mother and the father be restrained from showing, disclosing the information therein or giving copies of the documents provided pursuant to Order 2 above to any person other than a legal practitioner retained for the purpose of this appeal.
The mother have leave to issue subpoena for the production of documents as follows:
(a)Interviews of the children by NSW Police in January 2019;
(b)Copy of the mother’s statement given to Detective P on 11 February 2019;
(c)COPS entries E…26, E…31, E…01, E…05;
(d)Records relating to a home visit by police at W Street, EE Town on 24 April 2018, including copies of notes written by X on 23 April 2018; and
(e)Documents previously produced by Dr U.
The application to adduce further evidence in the appeal contained at paragraph 6.4 of the application be adjourned to the hearing of the appeal.
Other than as provided for in these orders, the Application in an Appeal filed on 30 June 2020 be dismissed.
The costs of the application to be costs in the appeal.

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 Syms & Syms 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…

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 Syms and Syms (No 2)

Details

AGLC: Syms and Syms (No 2) [2020] FamCAFC 192
Case: [2020] FamCAFC 192
Decision Date: 7 August 2020

CaseChat Overview and Summary

Syms and Syms (No 2) involved a legal dispute between the parents of a child, with the mother and father at the centre of the case. The matter was heard in the Family Court of Australia, where the mother sought an extension of time to file her Summary of Argument, alongside other procedural orders. The father and the Independent Children's Lawyer were also parties to the case. The legal issues before the court centred around the procedural aspects of the appeal, particularly concerning the timeliness of filing documents, the disclosure of certain documents, and the admissibility of further evidence.

The court considered the procedural fairness and necessity of extending the deadlines for filing Summaries of Argument, given the complexity and volume of the documents involved. The court also examined the necessity of the Independent Children’s Lawyer providing copies of the “tender bundle” to the parties and the appropriateness of restricting the disclosure of sensitive information. Additionally, the court assessed the mother's request for leave to subpoena specific documents and the father's application to adduce further evidence. The court's reasoning was grounded in ensuring that the appeal process was managed efficiently while protecting the interests of the child and maintaining the integrity of the proceedings.

In its decision, the court granted the mother's request for an extension to file her Summary of Argument and ordered the Independent Children's Lawyer to provide the relevant documents to the parties. It also restrained the parties from disclosing the sensitive information contained in the documents to unauthorised individuals. The court allowed the mother to issue a subpoena for certain documents and records, while adjourning the father's application to adduce further evidence to the appeal hearing. The court dismissed the rest of the application except for the orders specified, and determined that the costs of the application would be costs in the appeal.

Orders

Orders of the court

That the time for filing Summaries of Argument be extended so that the mother files and serves her Summary of Argument by 19 August 2020, the father files and serves his Summary of Argument by 9 September 2020 and, the Independent Children’s Lawyer files and serves their Summary of Argument by 30 September 2020.

That the Independent Children’s Lawyer provide the mother and the father with copies of the “tender bundle” given to Dr M.

The mother and the father be restrained from showing, disclosing the information therein or giving copies of the documents provided pursuant to Order 2 above to any person other than a legal practitioner retained for the purpose of this appeal.

The mother have leave to issue subpoena for the production of documents as follows:

(a) Interviews of the children by NSW Police in January 2019;

(b) Copy of the mother’s statement given to Detective P on 11 February 2019;

(d) Records relating to a home visit by police at W Street, EE Town on 24 April 2018, including copies of notes written by X on 23 April 2018; and

(e) Documents previously produced by Dr U.

The application to adduce further evidence in the appeal contained at paragraph 6.4 of the application be adjourned to the hearing of the appeal.

Other than as provided for in these orders, the Application in an Appeal filed on 30 June 2020 be dismissed.

The costs of the application to be costs in the appeal.

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

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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