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Appeal – ‘gross and deplorable’ seven-year delay in handing down judgment ‘contributed to the making of substantial errors’

In Manifold & Alderton [2021] FamCAFC 61 (4 May 2021), the Full Court heard a father’s appeal from parenting and property orders made in September 2020, where the trial concluded seven years earlier.

After a trial in 2013, further evidence was taken in March 2018, after which judgment was reserved again. A further hearing occurred in September 2019.

Strickland J, with whom Kent & Austin JJ agreed, said (from [36]):

“… [D]elay is not itself a ground of appeal, [but] the authorities are clear that where there is delay, the reasons for judgment must be subject to the strictest of scrutiny …

[37] Here … the focus is … the failure by the primary judge to take relevant matters into account, to engage with the father’s case and with the evidence, and to provide adequate reasons …

(…)

[52] … [H]er Honour concludes … that it is in the best interests of the children … to marginally increase [paternal] … time …

[53] The only basis for that decision … are a query ‘whether the father has the capacity to adequately support the children’ … and that the father has not ‘demonstrated’ how he would attend to the support needed …

[54] … [T]hese are all matters … addressed in the evidence, but which evidence was overlooked and clearly not taken into account …

[55] This is significant given the extraordinary delay here. … [H]er Honour was required to carry out a more detailed consideration of the evidence, and analysis of the respective cases … than would normally be required. The purpose of doing so would be to demonstrate … that the delay had not affected the decision. That did not occur here.

(…)

[61] … [T]here is no mention by her Honour of any difficulty experienced … as a result of the loss of the file and the exhibits. There being nothing said … to explain how she overcame the absence of these documents … provides another basis for finding that that decision is unsafe. … ”

The case was remitted for rehearing and costs certificates were ordered.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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