Whister and Swan - [2013] FamCAFC 86

FAMILY COURT OF AUSTRALIA

WHISTER & SWAN

[2013] FamCAFC 86

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application to summarily dismiss appeal – Where the father appeals against final and interim parenting orders allowing relocation of the child and significantly reducing the father’s time with the child – Where the father’s notice of appeal is not formulated in terminology familiar to well-settled grounds of appeal – Where the father drafted the notice in good faith and is complying with procedural requirements to prosecute his appeal – Where the respondent mother’s application for dismissal is brought before the appellant’s summary of argument is due to be filed and before the time to file an amended notice of appeal without leave has expired – Where the Independent Children’s Lawyer opposes the application – Where there are reasonable prospects of success in the appeal having regard to the notice of appeal – Application dismissed and directions orders made requiring the father to file an amended notice of appeal and expediting the hearing of the appeal.

Family Law Act 1975 (Cth) s96AA
Family Law Rules 2004 (Cth)

Bigg v Suzi (1998) FLC 92-799
D & D [2006] FamCA 339
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251

APPELLANT:

Mr Whister

RESPONDENT:

Ms Swan

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC 20 of 2009

APPEAL NUMBER:

NA 3 of 2013

DATE DELIVERED:

29 May 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

29 May 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 December 2012

LOWER COURT MNC:

[2012] FamCA 1074

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Laws

SOLICITOR FOR THE RESPONDENT:

Odyssey Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The application in an appeal filed 15 April 2013 be dismissed.
The appellant file an amended notice of appeal by 12 July 2013.
The hearing of the appeal be expedited with a view to the matter being listed in the Brisbane Full Court sittings week commencing 16 September 2013.
The orders made by Regional Appeals Registrar Kane on 25 March 2013 be varied as follows:
6.That the Respondent file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Monday
19 August 2013.
7.That the Independent Children’s Lawyer file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Friday 6 September 2013.
The costs of the respondent mother and the Independent Children’s Lawyer be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whister & Swan 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 3 of 2013
File Number: BRC 20…

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 Whister and Swan

Details

AGLC: Whister and Swan [2013] FamCAFC 86
Case: [2013] FamCAFC 86
Decision Date

CaseChat Overview and Summary

This appeal concerns final and interim parenting orders made by O'Reilly J, now retired, on 19 December 2012. The father, Mr Whister, appealed against these orders, which allowed the mother, Ms Swan, to relocate with their child to Western Australia, significantly reducing the father's time with the child. The mother applied to summarily dismiss the father's appeal, arguing it had no reasonable prospect of success due to the poorly drafted notice of appeal. The Independent Children's Lawyer opposed the application. The father, self-represented and in the process of preparing the appeal books, assured the court of his intent to comply with procedural requirements. The court noted the potential seriousness of the orders appealed, the father's good faith in drafting the notice of appeal, and the procedural opportunity for amendment.

The court considered the legal principles guiding the exercise of discretion to dismiss an appeal, emphasizing the importance of allowing a weak case to proceed to a hearing on its merits. The court referred to the relevant statutory and rule provisions, and the precedents indicating that a weak case is still entitled to judicial consideration unless clearly doomed to fail. The court noted that the father's summary of argument could inform the prospects of success. The Independent Children's Lawyer provided some interpretation of the grounds of appeal, suggesting they might fall within categories like overlooking relevant factors, inadequate reasons, or procedural fairness.

The court concluded that the appeal had reasonable prospects of success and should not be summarily dismissed. The notice of appeal, though poorly drafted, indicated potential grounds for the appeal. The court dismissed the mother's application and ordered the father to file an amended notice of appeal by 12 July 2013. The court also expedited the hearing of the appeal, aiming for it to be listed in the Brisbane Full Court sittings week commencing 16 September 2013. The costs of the respondent mother and the Independent Children's Lawyer were reserved.

Orders