Thurston and Thurston - [2012] FamCAFC 121

FAMILY COURT OF AUSTRALIA

THURSTON & THURSTON

[2012] FamCAFC 121

FAMILY LAW – APPEAL – Procedure – Application to reinstate appeal – Where the husband’s appeals were deemed abandoned when the appeal books were not filed – Where prior to the date for the filing of the appeal books the husband filed an application in an appeal seeking an extension of time citing related proceedings in the Federal Court and ill health – Where the wife opposed the application and sought that the husband’s appeal be deemed abandoned or dismissed – Where the husband’s application sought other orders in relation to subpoenas and further evidence – Where the parties agreed by consent to orders that the respondent file an application for dismissal – Appeals reinstated and applications otherwise adjourned to the Full Court.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Family Law Act 1975 (Cth) s 94AA

Family Law Rules 2004 rr 22.21, 22.41, 22.45(1)(b)(iii)
Federal Court Rules 2011 r 4.12

APPELLANT:

Mr Thurston

RESPONDENT:

Mrs Thurston

FILE NUMBER:

BRC 2249 of 2010

APPEAL NUMBER:

NA 31, 32 & 95 of 2011

DATE DELIVERED:

14 August 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

14 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

1 April 2011, 18 April 2011,
1 November 2011

LOWER COURT MNC:

[2011] FMCAfam1160
[2011] FMCAfam 1486

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Sara

SOLICITOR FOR THE RESPONDENT:

Neilson Stanton & Parkinson

Orders

The appeals NA 31, 32 and 95 of 2011 deemed abandoned be reinstated.
The appellant’s application in an appeal filed 27 July 2012 otherwise be heard by the Full Court in the November 2012 sittings.

Orders by consent

The respondent be at liberty to file and serve an application for dismissal together with an affidavit within 14 days of the date of this order.
The appellant file and serve a response and any affidavit upon which he would wish to rely within three weeks of being served with the respondent’s application and affidavit but no later than 28 September 2012. The respondent be at liberty to file and serve a reply, if any, within two weeks of being served with the appellant’s response.
The costs of the respondent be reserved to the Full Court.
Either party be at liberty to apply for further directions or orders on seven days notice to the other.

It is Further Ordered

The application of the respondent that the appeals be dismissed be heard by the Full Court in the November 2012 sittings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thurston and Thurston 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 BRISBANE

Appeal Number: NA 31, 32 & 95 of 2011
File Number: BRC 2249 of 2010

Mr Thurston

Appellant

And

Mrs Thurston

Respondent

REASONS FOR JUDGMENT

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 Thurston and Thurston

Details

AGLC: Thurston and Thurston [2012] FamCAFC 121
Case: [2012] FamCAFC 121
Decision Date

CaseChat Overview and Summary

The matter before the Family Court of Australia involved appeals brought by Mr Thurston against interlocutory and final orders made by a Federal Magistrate in property proceedings between him and his wife, Mrs Thurston. The appeals were numbered NA 31, 32, and 95 of 2011. The court was required to determine whether the appeals should be reinstated after they were deemed abandoned due to the non-filing of appeal books by the due date. Additionally, the court had to consider Mr Thurston's application in an appeal for an extension of time to file the appeal books, citing related proceedings in the Federal Court and his ill health. Mrs Thurston opposed the application, arguing for the abandonment or dismissal of the appeal.

In reaching its decision, the court examined the procedural history and the specific circumstances leading to the abandonment of the appeals. It noted that Mr Thurston had filed an application for an extension of time before the deadline for filing the appeal books, citing ongoing proceedings in the Federal Court and his health issues. The court acknowledged the need to balance the procedural requirements of the Family Law Rules 2004 with the appellant's circumstances. The court also considered the potential impact of the Federal Court proceedings on the Family Court appeals. Ultimately, the court decided to reinstate the appeals and set aside the procedural orders that had led to the abandonment. The court further ordered that the respondent could file an application for dismissal, with the appellant to respond within a specified timeframe. The costs of the application were reserved for the Full Court, and either party was allowed to apply for further directions or orders.

The final orders included reinstating the appeals NA 31, 32, and 95 of 2011, setting a timetable for the respondent to file an application for dismissal, and reserving the costs of the application for the Full Court. The court also ordered that the respondent's application for dismissal and the appellant's response be heard by the Full Court during the November 2012 sittings. The orders provided a structured path forward for both parties, ensuring that the substantive issues in the appeals could be determined efficiently while allowing for the respondent's right to seek dismissal if the appeals lacked merit.

Orders