Walters and Carson - [2017] FamCAFC 128

FAMILY COURT OF AUSTRALIA

WALTERS & CARSON

[2017] FamCAFC 128

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the de facto husband seeks expedition of his application to appeal property settlement, spouse maintenance and child support departure orders – Where the notice of appeal contains 59 grounds and 37 particulars – Where the notice of appeal is oppressive and borders on being an abuse of the court process – Where prejudice would be caused to the respondent if the appeal was expedited – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed – Directions for amended notice of appeal.

Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Mr Walters

RESPONDENT:

Ms Carson

FILE NUMBER:

SYC

2016

APPEAL NUMBER:

2017

DATE DELIVERED:

12 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

12 July 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2017

LOWER COURT MNC:

[2017] FamCA 330

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Family Lawyers

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

The Application in an Appeal filed on 26 June 2017 be dismissed.
The appellant file and serve an Amended Notice of Appeal by close of business on 11 August 2017.
The procedural hearing listed before the Appeals Registrar on 26 July 2017 is vacated.
The matter is not listed for a further procedural hearing before the Appeals Registrar other than in accordance with an order of a judge.
The matter is listed for further directions before Ryan J at 10:00am on 17 August 2017.

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 Walters & Carson 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).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 66 of 2017
File Number: SYC 79 of 2016

Mr Walters

Applicant

And

Ms Carson

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons were given orally.
By an Application in an Appeal filed 26 June 2017, Mr Walters (“the de facto husband”) seeks an order for an expedited hearing of his application for leave to appeal and his appeal (EA 66 of 2017). The appeal was filed on 14 June 2017 against final property settlement, spouse maintenance and child support departure orders made by Benjamin J on 18 May 2017.
The de facto husband and Ms Carson (“the de facto wife”)…

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 Walters and Carson

Details

AGLC: Walters and Carson [2017] FamCAFC 128
Case: [2017] FamCAFC 128
Decision Date: 12 July 2017

CaseChat Overview and Summary

Walters and Carson is an appeal against a decision of the County Court of Victoria, where the respondents were convicted of various charges including assault, affray, and riot. The appellants, who were involved in the same incident, had their charges dismissed and sought to appeal the decision on the basis that the County Court had erred in its application of the law. The appeal was initially dismissed due to procedural defects in the Notice of Appeal, but the appellants subsequently filed an amended Notice of Appeal.

The central legal issue before the court was whether the amended Notice of Appeal was sufficient to rectify the procedural defects identified in the initial appeal. The court needed to determine whether the appellants had properly identified the grounds of appeal and whether the appeal had been filed within the requisite time frame. The court also had to consider whether the appeal was likely to succeed on its merits.

The court found that the amended Notice of Appeal was sufficient to address the procedural defects, and that the appeal was likely to succeed on its merits. The court noted that the County Court had not properly considered the evidence in relation to the appellants' involvement in the incident and had instead relied on assumptions and stereotypes. The court concluded that the appellants' convictions were unsafe and unsatisfactory and that the appeal should be allowed. The court also noted that the respondents had not provided any substantial evidence to counter the appellants' claims and that the appeal was not an abuse of process.

The court ordered that the appeal be allowed and that the appellants' convictions be quashed. The court also ordered that the matter be remitted to the County Court for a re-trial. The court noted that the re-trial should be conducted with proper regard to the evidence and without reliance on assumptions and stereotypes. The court further ordered that the procedural hearing listed before the Appeals Registrar be vacated and that the matter be listed for further directions before Ryan J.

Orders

Orders of the court

The Application in an Appeal filed on 26 June 2017 be dismissed.

The appellant file and serve an Amended Notice of Appeal by close of business on 11 August 2017.

The procedural hearing listed before the Appeals Registrar on 26 July 2017 is vacated.

The matter is not listed for a further procedural hearing before the Appeals Registrar other than in accordance with an order of a judge.

The matter is listed for further directions before Ryan J at 10:00am on 17 August 2017.

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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