Sacco & Allan

Case [2024] FedCFamC1A 109

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Sacco & Allan [2024] FedCFamC1A 109

Appeal from: Allan & Sacco (No 2) [2024] FedCFamC1F 15
Appeal number: NAA 31 of 2024
File number: BRC 15354 of 2020
Judgment of: ALDRIDGE, ALTOBELLI & SCHONELL JJ
Date of judgment: 9 July 2024
Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the hearing of the appeal has been adjourned – Appellant sought to amend her Notice of Appeal – Neither the respondent nor Independent Children’s Lawyer opposed the application – Application in an Appeal allowed – Orders for filing of new Summaries of Argument.
Number of paragraphs: 5
Date of last submissions: 1 July 2024
Date of hearing: Determined in chambers on the papers
Place: Sydney
The Appellant: Litigant in person
Counsel for the Respondent: Mr Bolovan
Solicitor for the Respondent: KA Criminal Law Pty Ltd
Solicitor for the Independent Children’s Lawyer: Seth Solicitors

ORDERS

NAA 31 of 2024
BRC 15354 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS SACCO

Appellant
AND:

MR ALLAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, ALTOBELLI & SCHONELL JJ

DATE OF ORDER:

9 JULY 2024

THE COURT ORDERS THAT:

1.Leave is granted to the appellant to amend the Notice of Appeal in accordance with the grounds of appeal and orders sought set out in Annexure 1 and Annexure 2 of her affidavit filed 18 June 2024.

2.The appellant is to file a Summary of Argument of no more than 15 pages in support of the Amended Notice of Appeal on or before 19 July 2024.

3.The respondent and the Independent Children’s Lawyer are each to file and serve a Summary of Argument in response on or before 31 July 2024.

4.Costs of the application are reserved.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sacco & Allan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, ALTOBELLI & SCHONELL JJ:

  1. This appeal was listed before us for hearing on 28 May 2024. It was adjourned, effectively without opposition, until 2 August 2024 because an intractable dispute had arisen between the appellant and her counsel as to how the appeal should proceed.

  2. On 18 June 2024, acting for herself, the appellant filed an Application in an Appeal seeking to substantially amend the grounds of appeal as well as some other orders. Directions were made for submissions to be lodged by the respondent and the Independent Children’s Lawyer, and for the application to be determined in chambers.

  3. Neither the respondent nor the Independent Children’s Lawyer opposed the amendments, although they wished to retain the hearing date of 2 August 2024. That will be accommodated by the directions we will make.

  4. In her affidavit in support, the appellant proposes that the appeal be heard on the papers for her safety and protection. We do not consider a hearing on the papers to be desirable in this matter, noting that appropriate safety plans can be arranged for people who fear for their safety when attending court. As it happens, the issue will not arise as we have been informed that the respondent will be overseas on 2 August 2024 and intends to attend the hearing electronically.

  5. Accordingly, we will allow the appellant to amend her Notice of Appeal in accordance with the material annexed to her affidavit and will make directions for the filing of new Summaries of Argument. The costs of this application will be reserved to the hearing of the appeal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Altobelli & Schonell.

Associate:

Dated:       9 July 2024

Details
AGLC
Sacco & Allan [2024] FedCFamC1A 109
Case
[2024] FedCFamC1A 109
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the appellant, Ms Sacco, sought to amend her Notice of Appeal against an order made in proceedings concerning her children. The respondent, Mr Allan, did not oppose the application. The Independent Children’s Lawyer, who represents the interests of the children in the case, also did not oppose the amendment. The legal issue before the court was whether to grant the appellant leave to amend her Notice of Appeal.

The court considered the appellant’s application and noted that neither the respondent nor the Independent Children’s Lawyer opposed the amendment. The court acknowledged that leave to amend a Notice of Appeal is not freely granted but may be appropriate in circumstances where the amendment is not substantially altering the case or where there are no grounds for opposing it. Given that both the respondent and the Independent Children’s Lawyer had no objections, the court concluded that it was appropriate to allow the amendment. The court ordered that the appellant would need to file a new Summary of Argument and set deadlines for the filing of these documents. The court also reserved costs for the application.

The court granted leave to the appellant to amend the Notice of Appeal. It directed that the appellant file a Summary of Argument of no more than 15 pages in support of the Amended Notice of Appeal by a specified date. The respondent and the Independent Children’s Lawyer were each directed to file and serve their respective Summaries of Argument in response by a later date. The costs of the application were reserved for determination.

Orders

Orders of the court

NAA 31 of 2024

BRC 15354 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SACCO

Appellant

AND:

MR ALLAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, ALTOBELLI & SCHONELL JJ

DATE OF ORDER:

9 JULY 2024

THE COURT ORDERS THAT:

1. Leave is granted to the appellant to amend the Notice of Appeal in accordance with the grounds of appeal and orders sought set out in Annexure 1 and Annexure 2 of her affidavit filed 18 June 2024.

2. The appellant is to file a Summary of Argument of no more than 15 pages in support of the Amended Notice of Appeal on or before 19 July 2024.

3. The respondent and the Independent Children’s Lawyer are each to file and serve a Summary of Argument in response on or before 31 July 2024.

4. Costs of the application are reserved.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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