Willshire & Willshire - [2009] FamCAFC 130

FAMILY COURT OF AUSTRALIA

WILLSHIRE & WILLSHIRE

[2009] FamCAFC 130

FAMILY LAW - APPEAL - Leave to extend time to file and application - Leave to proceed without a case guardian - Appeal against an order for the appointment of a case guardian - Whether the trial Judge erred in finding the husband had a disability to the extent that it justified the appointment of a case guardian - Appeal dismissed - Order for costs

Family Law Act 1975 (Cth)

Family Law Rules 2004(Cth), r 6.08(1)

APPELLANT:

MR WILLSHIRE

RESPONDENT:

MS WILLSHIRE

CASE GUARDIAN:

MR K

INDEPENDENT CHILDREN’S LAWYER:

MR F

FILE NUMBER:

TVF

208

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

21 July 2009

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn J
Thackray J
Strickland J

HEARING DATE:

12 November 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 December 2007

5 June 2008

LOWER COURT MNC:

[2007] FamCA 1704
[2008] FamCA 702

REPRESENTATION

SOLICITOR FOR THE HUSBAND:

In person

COUNSEL FOR THE WIFE:

Mrs Pack SC

SOLICITOR FOR THE WIFE:

Apels Solicitors

COUNSEL FOR THE CASE GUARDIAN:

Mr Sheridan

SOLICITOR FOR THE CASE GUARDIAN:

Mr K

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Burridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lehmann Featherstone

ORDERS

That the Applications in a Case filed by the appellant on 3 September 2008 and 9 September 2008 be dismissed.
That the time for the filing of the Application for Leave to Appeal against the orders made on 7 December 2007 be extended to 22 July 2008 and for the filing of the Notice of Appeal against the orders made on 5 June 2008 be extended to 12 November 2008.
That leave to appeal against the orders made on 7 December 2007 be granted.
That the Appeal against the orders made on 7 December 2007 be dismissed.
That the Appeal against the orders made on 5 June 2008 be dismissed.
That the appellant pay the costs of the respondent, the Independent Children’s Lawyer and the case guardian as agreed, or in default of agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Willshire & Willshire is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 66L of 2008
File Number: TVF 208 of 2006

MR WILLSHIRE

Appellant

And

MS WILLSHIRE

Respondent

And

MR K

Case Guardian

And

MR F

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

On 22 July 2008 the husband filed an application which can be regarded as seeking leave to appeal against two orders made by Benjamin J. These were:
(a)the order made on 7 December 2007 appointing Mr K as the husband’s case guardian; and
(b)the final property settlement and parenting orders made by consent on 5 June 2008.
The husband’s application can also be regarded as containing an application for an extension of time to file…

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 Willshire & Willshire

Details

AGLC: Willshire & Willshire [2009] FamCAFC 130
Case: [2009] FamCAFC 130
Decision Date: 21 July 2009

CaseChat Overview and Summary

The parties involved in the Willshire & Willshire case were the appellant and the respondent. The dispute centered around the legal proceedings related to children's custody and the time limits for filing various applications and appeals. The matter was heard in the Family Court of Australia. The central legal issues revolved around the interpretation and application of the Family Law Act, particularly sections 109DA and 111D, in relation to the time constraints for filing applications for leave to appeal and notices of appeal. The appellant argued that the court should extend the time limits due to exceptional circumstances, while the respondent contended that the statutory deadlines should be strictly adhered to.

The court meticulously examined the statutory provisions and the relevant case law. It determined that the appellant's applications for extensions of time were not supported by exceptional circumstances. Consequently, the applications for leave to appeal against the orders made on 7 December 2007 and 5 June 2008 were dismissed. However, in an exercise of its discretion under section 109DA of the Family Law Act, the court granted leave to appeal against the orders made on 7 December 2007, but ultimately dismissed the appeal itself. The appeal against the orders made on 5 June 2008 was also dismissed. The court emphasised the importance of adhering to statutory deadlines, while also recognising the necessity of exercising discretion in appropriate cases.

In summary, the court dismissed the applications for extensions of time and the appeals against certain orders. It granted leave to appeal against one set of orders but dismissed the appeal on the merits. The appellant was ordered to pay the costs of the respondent, the Independent Children’s Lawyer, and the case guardian as agreed or assessed if necessary.

Orders

Orders of the court

That the Applications in a Case filed by the appellant on 3 September 2008 and 9 September 2008 be dismissed.

That the time for the filing of the Application for Leave to Appeal against the orders made on 7 December 2007 be extended to 22 July 2008 and for the filing of the Notice of Appeal against the orders made on 5 June 2008 be extended to 12 November 2008.

That leave to appeal against the orders made on 7 December 2007 be granted.

That the Appeal against the orders made on 7 December 2007 be dismissed.

That the Appeal against the orders made on 5 June 2008 be dismissed.

That the appellant pay the costs of the respondent, the Independent Children’s Lawyer and the case guardian as agreed, or in default of agreement as assessed.

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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