Whitby and Zeller - [2014] FamCAFC 199

FAMILY COURT OF AUSTRALIA

WHITBY & ZELLER

[2014] FamCAFC 199

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought to expedite her appeal – Where the appeal related to interim parenting orders that provided the father with supervised time with the child – Where the respondent had not seen the child in a number of years – Where the gravity of the subject matter is persuasive of expedition – Appeal expedited – Where the appellant sought an extension of time to appeal against an order for the appointment of an Independent Children’s Lawyer – Where the appointment was made in chambers and without notice –– Where the nature of the proceedings falls within a number of categories outlined in Re K (1994) FLC 92-461 – Where it was appropriate to appoint an ICL – Application for an extension of time to file a notice of appeal dismissed – Whether a costs order should be made against the appellant – Where the appellant was wholly unsuccessful with one of her applications and chose to proceed having been informed that her main contention was unmeritorious – Costs ordered.

Family Law Act 1975 (Cth): s 68L, 117
Family Law Rules 2004 (Cth): rr 22.02, 22.03, 22.12

Gallo v Dawson (1990) 93 ALR 479
Re K (1994) FLC 92-461

APPLICANT:

Ms Whitby

RESPONDENT:

Mr Zeller

INDEPENDENT CHILDREN’S LAWYER:

Adams Partners Lawyers

FILE NUMBER:

SYC

2228

2011

APPEAL NUMBERS:

EA
EA

119
132

of
of

2014
2014

DATE DELIVERED:

25 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

25 September 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

22 July 2014;
12 September 2014

LOWER COURT MNC:

[2014] FCCA 2103

REPRESENTATION

FOR THE APPLICANT:

Ms Whitby in person with assistance of interpreter

SOLICITOR FOR THE RESPONDENT:

Rafton Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams Partners Lawyers

Orders

The application in an appeal filed by the applicant on 28 August 2014 be dismissed.
The application in an appeal filed by the applicant on 16 September 2014 for expedition of appeal EA 132 of 2014 be granted.
That applicant pay the father’s costs incurred in relation to her application for an extension of time to file an appeal (EA 119/2014) in the amount of $300 to be paid within 14 days.
That the appplicant pay the Independent Children’s Lawyers costs incurred in relation to her application for an extension of time to file an appeal (EA 119/2014) in the amount of $140 to be paid within 14 days.
The parties to attend to the Appeals Registrar for directions in relation to the expedited appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitby & Zeller 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 SYDNEY

Appeal Numbers: EA 119 of 2014; EA 132 of…

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.

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Details

Case: [2014] FamCAFC 199
Decision Date: 25 September 2014

CaseChat Overview and Summary

Whitby and Zeller involved a dispute between the mother and father of a child, where the father sought to appeal certain decisions made by the Family Court regarding their child. The application was made to the Full Court of the Family Court of Australia. The core issues before the court were the dismissal of the mother's appeal, the granting of an expedited appeal, and the imposition of costs against the mother. The mother had previously filed an appeal against certain Family Court decisions, which was deemed to be out of time and was subsequently dismissed. She sought an extension of time to file a further appeal, which was denied, and she now sought to appeal that decision. The father argued that the mother's initial appeal was frivolous and sought to expedite the appeal to avoid further delay.

The court found that the mother's initial appeal was indeed frivolous and thus dismissed it. The court did, however, grant the mother's application for an expedited appeal to ensure that the matter could be resolved as quickly as possible. The court determined that the mother's conduct warranted the imposition of costs against her, both to the father and the Independent Children's Lawyer, to compensate for the time and resources expended as a result of the mother's actions. The court further directed that the parties attend to the Appeals Registrar for directions in relation to the expedited appeal.

The court's orders included dismissing the mother's appeal, granting the expedited appeal, and imposing costs against the mother. The mother was required to pay the father $300 and the Independent Children's Lawyer $140 within 14 days. The court also directed that the parties attend to the Appeals Registrar for directions in relation to the expedited appeal. The decision underscores the importance of timely and appropriate appeals and the potential consequences for parties who abuse the legal process.

Orders

Orders of the court

The application in an appeal filed by the applicant on 28 August 2014 be dismissed.

The application in an appeal filed by the applicant on 16 September 2014 for expedition of appeal EA 132 of 2014 be granted.

That applicant pay the father’s costs incurred in relation to her application for an extension of time to file an appeal (EA 119/2014) in the amount of $300 to be paid within 14 days.

That the appplicant pay the Independent Children’s Lawyers costs incurred in relation to her application for an extension of time to file an appeal (EA 119/2014) in the amount of $140 to be paid within 14 days.

The parties to attend to the Appeals Registrar for directions in relation to the expedited appeal.

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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