Alfred and Alfred - [2008] FamCAFC 103

FAMILY COURT OF AUSTRALIA

ALFRED & ALFRED

[2008] FamCAFC 103

FAMILY LAW - APPEAL – Application to extend time to appeal – Property settlement in relation to marriage – Fifteen months after reasons for judgment were published and orders made the husband sought an extension of time within which to appeal all of the property settlement orders – He also sought to appeal a costs order made 5 months later in respect of those proceedings – Whether there is a substantial issue to be raised on appeal – The delay in bringing the explanation and the explanation for such delay – Whether there is any hardship or prejudice to the wife in the husband being allowed to re-open property settlement issues – Application dismissed

Family Law Act 1975 (Cth)

Joshua v Joshua (1997) FLC 92-767

APPELLANT:

MR ALFRED

RESPONDENT:

MS ALFRED

APPEAL NUMBER:

2008

FILE NUMBER:

BRM

8622

2005

DATE DELIVERED:

11 July 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

WARNICK J

HEARING DATE:

3 July 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 April 2007

LOWER COURT MNC:

[2007] FMCAfam 225

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Kirkham-Scroope

SOLICITOR FOR THE APPELLANT:

Carter Naughton Rice

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Wheldon & Associates

Orders

That the application for an extension of time within which to appeal the orders made by Federal Magistrate Burnett on 26 April 2007 and 19 September 2007 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Alfred & Alfred is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 51 L of 2008

File Number: BRM 8622 of 2005

MR ALFRED

Appellant

And

MS ALFRED

Respondent

REASONS FOR JUDGMENT

In December 2006, Federal Magistrate Burnett tried competing applications for alteration of property interests between Mr and Mrs Alfred. On 26 April 2007 the learned Magistrate made orders in disposition of those applications and he published his reasons. Fifteen months later, before me, the husband seeks an extension of time within which to appeal all of the orders made 26 April 2007 and a costs order in respect of the property settlement proceedings, made by Burnett FM on 19 September 2007.
The principles applicable to applications such as this are conveniently set out in the judgment of Lindenmayer J in Joshua v Joshua (1997) FLC 92-767 at 84,440:
Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which…

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 Alfred and Alfred

Details

AGLC: Alfred and Alfred [2008] FamCAFC 103
Case: [2008] FamCAFC 103
Decision Date: 11 July 2008

CaseChat Overview and Summary

The case of Alfred and Alfred involved the applicants, the Alfred brothers, who sought an extension of time to appeal orders made by Federal Magistrate Burnett. The orders in question were issued on 26 April 2007 and 19 September 2007. The applicants were seeking to appeal these orders, but the time frame for doing so had passed, necessitating an application for an extension of time. The dispute centred on whether the applicants had a valid reason to justify the extension of time beyond the usual statutory limits.

The central legal issue before the court was whether the applicants had demonstrated sufficient grounds to warrant an extension of the time limit for appealing the orders. This involved a consideration of the principles governing extensions of time in the context of appeals, including the importance of timeliness and the need for good reason to justify any delay. The court had to assess the applicants' reasons for the delay and determine whether these reasons were compelling enough to merit an extension.

The court dismissed the application for an extension of time, finding that the applicants had not provided adequate justification for the delay. The reasons given by the applicants were considered insufficient to warrant an extension of the statutory time limit. The court emphasised the importance of adhering to deadlines and the principle that extensions should only be granted in exceptional circumstances. As a result, the application was dismissed, and the applicants' appeal was not permitted.

Orders

Orders of the court

That the application for an extension of time within which to appeal the orders made by Federal Magistrate Burnett on 26 April 2007 and 19 September 2007 be dismissed.

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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