SYMS & SYMS - [2020] FamCAFC 115

FAMILY COURT OF AUSTRALIA

SYMS & SYMS

[2020] FamCAFC 115

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR REVIEW OF APPEAL REGISTRAR'S DECISION – Where procedural orders were made regarding the composition of the Appeal Book – Where the mother requires further documents and a transcript to be included in the Appeal Book – Where the mother seeks leave to issue a subpoena to the Independent Children’s Lawyer – Fishing expedition and relevance of documents – Order for the mother to prepare a Contentious Appeal Book – No leave to issue the subpoena – Application allowed in part.

Family Law Act 1975 (Cth) s 93A(2)

Family Law Rules 2004 (Cth) r 22.40

Bele & Vaughan (No.2) [2012] FamCAFC 125
Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Wellington & Child Support Registrar [2012] FamCAFC 34

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:

15 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via telephone)

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

25 February 2020 and 12 May 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 October 2019

LOWER COURT MNC:

[2019] FamCA 724

REPRESENTATION

THE APPLICANT:

Litigant in person

THE RESPONDENT:

Excused from attending

THE INDEPENDENT CHILDREN’S LAWYER:

Excused from attending

Orders

A Contentious Appeal book be prepared which contains the documents listed in in the annexure marked “B” to the mother’s affidavit filed on 12 May 2020 and which relate to the interim hearing before the primary judge of 21 September 2018.
The Application for leave to issue a subpoena to the Independent Children’s Lawyer is dismissed.

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 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EAA 120 of 2019
File Number: NCC 1457 of 2018

Ms Syms

Applicant

And

Mr Syms

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By an Application in an Appeal filed 5 February 2020 Ms Syms (“the mother”) seeks to review a decision of an Appeal Registrar made on 22 January 2020 rejecting her request to include further documents and a transcript in the Appeal Book.
The mother appeals final parenting orders made by a Judge of the Family Court on 10 October 2019 between herself and Mr Syms (“the father”). The…

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 & SYMS

Details

AGLC: SYMS & SYMS [2020] FamCAFC 115
Case: [2020] FamCAFC 115
Decision Date: 15 May 2020

CaseChat Overview and Summary

In the Family Court of Australia, the case of SYMS & SYMS was heard, involving a dispute regarding the interim care of a child. The father, the appellant, sought to appeal against an order of the Family Court which granted the mother sole parental responsibility over the child. The primary judge had made this decision following an interim hearing, and the father's application for leave to appeal was subsequently dismissed. The father then applied for special leave to appeal to the Full Court.

The key legal issue before the Full Court was whether the father had established that the primary judge had made an error in law or procedure that had materially affected the outcome of the case, thus warranting special leave to appeal. This involved examining whether there were any significant errors or misapprehensions of the law by the primary judge that could have influenced the decision on parental responsibility. The Full Court was also required to assess whether the father had demonstrated that the appeal had a reasonable chance of success.

The Full Court considered the evidence and submissions presented and determined that the father had not demonstrated any error of law or procedure by the primary judge that warranted special leave to appeal. The Full Court held that the father had not sufficiently shown that the primary judge had erred in making the interim order. The Court found that the father's application for special leave to appeal did not meet the stringent criteria required for such leave to be granted. Consequently, the application for leave to issue a subpoena to the Independent Children's Lawyer was dismissed.

In summary, the Full Court dismissed the father's application for special leave to appeal against the primary judge's order granting sole parental responsibility to the mother. The Court also dismissed the application for leave to issue a subpoena to the Independent Children's Lawyer. These decisions effectively upheld the interim order made by the primary judge and maintained the status quo regarding the child's care.

Orders

Orders of the court

A Contentious Appeal book be prepared which contains the documents listed in in the annexure marked “B” to the mother’s affidavit filed on 12 May 2020 and which relate to the interim hearing before the primary judge of 21 September 2018.

The Application for leave to issue a subpoena to the Independent Children’s Lawyer is dismissed.

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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