AINSLEY & LAKE - [2016] FamCAFC 253

FAMILY COURT OF AUSTRALIA

AINSLEY & LAKE

[2016] FamCAFC 253

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where the applicant failed to provide an adequate explanation for her delay in filing the Notice of Appeal within time – Where the respondent would suffer prejudice if the extension were allowed – Where the property pool is of small compass and the amounts to be pursued on appeal are not of a magnitude that would visit injustice on the applicant if an extension were not granted – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks that the applicant pay his costs of the unsuccessful application – Whether circumstances justify an order for costs – Where the applicant was wholly unsuccessful – Where the application was necessitated by the applicant’s failure to comply with timeframes for filing appeals – Costs ordered.

Family Law Act 1975 (Cth): ss 90G, 90K(1)(a)

Family Law Rules 2004 (Cth): r 22.03

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Ms Ainsley

RESPONDENT:

Mr Lake

FILE NUMBER:

WOC

790

2014

APPEAL NUMBER:

166

2016

DATE DELIVERED:

24 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

24 November 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 July 2016

LOWER COURT MNC:

[2016] FCCA 2132

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Kells

COUNSEL FOR THE RESPONDENT:

Mr G. Watkins

SOLICITOR FOR THE RESPONDENT:

Rebecca Bailey & Associates

Orders

The Application in an Appeal filed on 26 September 2016 be dismissed.
The applicant pay the respondent’s costs of and incidental to the application referred to in Order 1 in the amount of $2,500 within six (6) months of the date of these orders.

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 Ainsley & Lake 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).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 166 of 2016
File Number: WOC 790 of 2014

Ms Ainsley

Applicant

And

Mr Lake

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By Application in an Appeal filed 26 September 2016 Ms Ainsley (“the wife”) seeks an extension of time to file a Notice of Appeal against a final order made by Judge Henderson on 26 July 2016. The order under appeal sets aside a financial agreement entered…

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 AINSLEY & LAKE

Details

AGLC: AINSLEY & LAKE [2016] FamCAFC 253
Case: [2016] FamCAFC 253
Decision Date: 24 November 2016

CaseChat Overview and Summary

The case involves an application to extend the time for filing a Notice of Appeal in a family law matter. The applicant, AINSLEY, sought an extension from the respondent, LAKE. The application was heard in the Family Court of Australia. The primary issue before the court was whether the applicant was entitled to an extension of time to file her Notice of Appeal, and if so, under what circumstances. Additionally, the court had to determine whether the respondent should be ordered to pay the applicant’s costs for the unsuccessful application.

The court noted that the granting of leave to extend the time to file a Notice of Appeal is not automatic and requires the exercise of judicial discretion. It found that the applicant failed to provide an adequate explanation for her delay in filing the Notice of Appeal within the prescribed time. Moreover, the court considered that the respondent would suffer prejudice if the extension were granted. Although the property pool in the appeal was of a small compass and the amounts involved were not substantial enough to cause significant injustice to the applicant if the extension were not granted, the court emphasised the importance of adhering to procedural timelines. Consequently, the application to extend the time to file the Notice of Appeal was dismissed.

In addition to dismissing the application, the court ordered that the applicant pay the respondent’s costs of the unsuccessful application. The court reasoned that the application was necessitated by the applicant’s failure to comply with the timeframes for filing appeals, and as such, the circumstances justified an order for costs. The applicant was wholly unsuccessful in her application, leading to the imposition of costs in the amount of $2,500, to be paid within six months of the date of the orders.

Orders

Orders of the court

The Application in an Appeal filed on 26 September 2016 be dismissed.

The applicant pay the respondent’s costs of and incidental to the application referred to in Order 1 in the amount of $2,500 within six (6) months of the date of these orders.

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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