Winter and French - [2014] FamCAFC 215

FAMILY COURT OF AUSTRALIA

WINTER & FRENCH

[2014] FamCAFC 215

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a notice of appeal – Where the applicant seeks to appeal a costs order resulting from an unsuccessful application to stay parenting orders changing the primary residence of two children – Where the applicant has failed to demonstrate that the proposed appeal has sufficient merit – Application dismissed.

Gallo v Dawson (1990) 93 ALR 479
Winter & French [2013] FamCAFC 75

APPLICANT:

Ms Winter

RESPONDENT:

Mr French

FILE NUMBER:

BRC

7013

2010

APPEAL NUMBER:

2014

DATE DELIVERED:

11 November 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

7 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 December 2013

LOWER COURT MNC:

[2013] FCCA 2433

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Applicant appeared in person

SOLICITOR FOR THE RESPONDENT:

Respondent appeared in person

Orders

The application in an appeal filed 1 October 2014 be dismissed.
No order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Winter & French has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 53 of 2014
File Number: BRC 7013 of 2010

Ms Winter

Applicant

And

Mr French

Respondent

REASONS FOR JUDGMENT

In an application in an appeal filed 1 October 2014, Ms Winter (“the mother”) seeks an extension of time in which to appeal a costs order made by Judge Demack on 3 December 2013. It can thus be seen that the application for an extension of time has been filed nine months after the time limit expired for the filing of a notice of appeal. The order from which the mother wishes to appeal is:
(2)That the mother pay the father’s costs with respect to the stay application fixed in the sum of four thousand, six hundred and ninety three dollars and fifty cents ($4,693.50) with such sum to be paid within six (6) months of the date of these Orders and thereafter interest shall accrue at the applicable Family Law rate.

Background

At the conclusion of contested proceedings in relation to the parties’ children, orders were made on 26 April 2012 that the children live with their father. This involved a significant change as they had previously been living with their mother. After the order was made the mother filed, on 31 May 2012, an application for a stay of those orders. Judge Demack refused the mother’s application for a stay on 5 July 2012 and later ordered on 30 August 2012 that she pay the father’s costs of the application. The mother did not appeal from the dismissal of the stay application.
The appeal from the orders of Judge Demack in relation to the parenting…

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 Winter and French

Details

AGLC: Winter and French [2014] FamCAFC 215
Case: [2014] FamCAFC 215
Decision Date: 11 November 2014

CaseChat Overview and Summary

Winter and French involved a dispute between two parties in the Federal Circuit Court of Australia. The case revolved around an appeal filed by the applicant on 1 October 2014, challenging a decision made by the primary judge. The applicant sought to overturn the decision and have the case heard again, while the respondent argued that the appeal should be dismissed. The court had to determine whether the appeal was valid and whether there were any grounds for overturning the original decision.

The primary legal issue before the court was whether the appeal was properly filed and whether it contained valid grounds for reconsideration. The court needed to examine the procedural aspects of the appeal and assess whether the applicant had complied with the necessary legal requirements. Additionally, the court had to evaluate the substantive arguments presented by the applicant to determine if there were any errors in the original decision that warranted a reversal.

In dismissing the appeal, the court found that the applicant had not satisfied the necessary criteria for a successful appeal. The court determined that the appeal was not properly filed and lacked valid grounds for reconsideration. The primary judge's decision was upheld as it stood, and the applicant's arguments were deemed insufficient to warrant a reversal. The court concluded that there were no errors in the original decision that would necessitate a new hearing.

The court's orders were straightforward. The application for an appeal was dismissed, and no order was made regarding costs. The decision of the primary judge remained in effect, and the respondent was not required to pay any costs associated with the appeal.

Orders

Orders of the court

The application in an appeal filed 1 October 2014 be dismissed.

No order as to costs.

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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