Winston and Winston
[2013] FamCAFC 17
FAMILY COURT OF AUSTRALIA
| WINSTON & WINSTON | [2013] FamCAFC 17 |
| FAMILY LAW – APPEAL – Practice and procedure – submissions. |
| APPELLANT: | Mr Winston |
| RESPONDENT: | Ms Winston |
| INDEPENDENT CHILDREN’S LAWYER: | Ms S Duncan |
| FILE NUMBER: | BRC | 10703 | of | 2008 |
| APPEAL NUMBER: | NA | 7 | of | 2012 |
| DATE DELIVERED: | 22 February 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, Strickland & Kent JJ |
| HEARING DATE: | 5 September 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 20 December 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 929 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page SC |
| SOLICITOR FOR THE APPELLANT: | Couper Geysen Family & Animal Law |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The Appeals Registrar shall cause to be forwarded to the address for service of each party, as soon as is reasonably practicable, a copy of the transcript of the proceedings in this appeal on 5 September 2012, together with a copy of these reasons and Orders.
Within twenty-one (21) days of the date of these orders the Wife shall file and serve any written submissions she seeks to rely upon:
(a) in response to the Husband’s grounds of appeal; and/or
(b)in response to the written submissions filed on behalf of the Husband in support of his appeal; and/or
(c)in response to the oral submissions made by the Husband’s Counsel on the hearing of the appeal on 5 September 2012; and/or
(d)addressing whether, in the event the appeal is allowed, the Wife would seek to have this Court re-determine the matter or, alternatively, for the proceedings to be remitted to the Federal Magistrates Court for a new trial; and/or
(e)addressing whether, in the event the appeal is allowed and this Court determines to re-determine the matter, the Wife would seek to place further evidence before the Court for the purpose of that re-determination and, if so, the general nature or outline of that evidence.
Within fourteen (14) days after the service by the Wife upon the Husband of any written submissions filed and served pursuant to Order (2) hereof, the Husband shall file and serve any further written submissions, strictly by way of response to the Wife’s submissions, upon which he seeks to rely.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Winston & Winston has been approved by the Chief Justice 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 7 of 2012
File Number: BRC 10703 of 2008
| Mr Winston |
Appellant
And
| Ms Winston |
Respondent
REASONS FOR JUDGMENT
On 5 September 2012 we heard an appeal by the Husband against property settlement orders made by Federal Magistrate Howard on
20 December 2011. The respondent Wife did not attend in person on the hearing of the appeal but appeared by telephone. We were not prepared to grant the Wife an adjournment of the appeal for reasons then given (and subsequently published).
In those reasons it was explained to the Wife that it was possible that having heard the submissions on behalf of the Husband, we would not be persuaded that there was any substance in the appeal and therefore it would then not be necessary to call upon the Wife to respond to the appeal. It was further explained, as an alternate possibility, that if we considered there was some substance in the appeal, we would arrange for the Wife to be provided with a transcript of the proceedings of that day and would make a direction for her to respond within a short time frame.
Whilst we are yet to determine whether or not the appeal is to be allowed, we have resolved that it is necessary to call upon the Wife to respond, and we propose to make orders that afford the Wife a further opportunity to be heard, with the benefit of her having the opportunity to consider the transcript of the hearing of the appeal on 5 September 2012.
The Husband’s position as expressed to us on 5 September 2012 by Mr Page of senior counsel (as is reflected in the transcript) is that in the event the appeal is allowed, the Husband would not seek to place further evidence before the Court and that this Court should proceed to
re-determine what final property settlement orders should be made, rather than sending the proceedings back to the Federal Magistrates Court for a new trial.
Thus, in our orders, the Wife will be given the further opportunity to provide written submissions addressing the Husband’s grounds of appeal and/or the Husband’s written submissions in support of those grounds. She should also have the opportunity to make submissions to us on whether, in the event we reach the conclusion that the appeal is to be allowed, she would wish to place further evidence before the Court, and whether or not she opposes the Husband’s proposal that this Court
re-determine the matter, rather than sending the proceedings for a new trial in the Federal Magistrates Court.
Of course it follows that the Husband needs to be afforded an opportunity to respond to any written submissions of the Wife filed as a result of our orders, and we will so order.
Our orders will also provide that in the event the Wife does not provide any written submissions within the time frame provided addressing all of the matters, we will proceed on the basis that the Wife does not wish to be heard in relation to the appeal.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 22 February 2013.
Associate:
Date: 22 February 2013
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