WINTERS & MCGUIGAN - [2017] FamCAFC 13

FAMILY COURT OF AUSTRALIA

WINTERS & MCGUIGAN

[2017] FamCAFC 13

FAMILY LAW – APPEAL – COSTS – Application for costs of abandoned appeal – Where the appeal was deemed abandoned because the appellant failed to comply with an order for the filing of the appeal books – Where the financial circumstances of the parties are a relevant consideration – Where the parties have property proceedings currently before the court – Costs ordered to be paid from the appellant’s property settlement entitlement.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 22.43

APPLICANT:

Mr McGuigan

RESPONDENT:

Ms Winters

FILE NUMBER:

SYC

2213

2013

APPEAL NUMBER:

2016

DATE DELIVERED:

9 February 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Kent JJ

HEARING DATE:

By way of written submissions filed by the respondent on 7 December 2016 and the applicant on 23 November 2016 and 20 December 2016.

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

1 June 2016

LOWER COURT MNC:

[2016] FamCA 421

SUBMISSIONS RECEIVED FROM:

SOLICITOR FOR THE APPLICANT:

Dettmann Longworth Lawyers

THE RESPONDENT:

In person

Orders

That the appellant mother pay the respondent father’s costs of and incidental to the appeal excluding the costs associated with the application for expedition, such costs to be agreed or assessed.
That the costs payable pursuant to the above order be paid from the appellant mother’s entitlement to a property settlement made by way of final order pursuant to s 79 of the Family Law Act 1975 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 93 of 2016
File Number: SYC 2213 of 2013

Mr McGuigan

Applicant

and

Ms Winters

Respondent

REASONS FOR JUDGMENT

By Application in an Appeal Mr McGuigan (“the father”) seeks costs of abandoned appeal EA 93 of 2016 in which he was the respondent. The appeal was filed by Ms Winters (“the mother”). The application for costs was filed out of time and leave was granted to the father to bring the application.
The mother appealed from parenting orders made by Rees J on 1 June 2016 by a Notice of Appeal filed on 28 June 2016. On that same day the mother also filed an Application in an Appeal seeking expedition of the hearing of that appeal.
The parenting orders of Rees J provided that the…

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

AGLC: WINTERS & MCGUIGAN [2017] FamCAFC 13
Case: [2017] FamCAFC 13
Decision Date: 9 February 2017

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Winters & McGuigan involved a dispute between the parties regarding the care and custody of their child. The mother, the appellant, appealed against the orders made by the primary judge concerning the child's upbringing and access arrangements. The father, the respondent, sought to have the appeal dismissed and for the mother to bear the costs associated with the proceedings. The case focused on the interpretation and application of the Family Law Act 1975 and the principles of shared parental responsibility. The legal issues before the court included the allocation of parental responsibility and the best interests of the child, as well as the assessment of costs in family law appeals.

The court considered the evidence and submissions from both parties, focusing on the child's welfare and the parents' ability to provide a stable and nurturing environment. It examined the primary judge's findings and whether they were supported by the evidence, particularly in relation to the mother's allegations of the father's unsuitability. The court emphasised the importance of the child's relationship with both parents and the need for a balanced approach to shared parental responsibility. In assessing the costs, the court noted the importance of ensuring that the financial burden of appeals does not unduly impact the parties' ability to resolve disputes amicably.

The court found that the primary judge's orders were well-reasoned and supported by the evidence. It upheld the primary judge's conclusions regarding the allocation of parental responsibility and the access arrangements. The court dismissed the mother's appeal and ordered her to pay the father's costs of and incidental to the appeal, excluding the costs associated with the application for expedition. The court directed that these costs be paid from the mother's entitlement to a property settlement, as determined by the primary judge. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

That the appellant mother pay the respondent father’s costs of and incidental to the appeal excluding the costs associated with the application for expedition, such costs to be agreed or assessed.

That the costs payable pursuant to the above order be paid from the appellant mother’s entitlement to a property settlement made by way of final order pursuant to s 79 of the Family Law Act 1975 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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