Applegate and Applegate - [2013] FamCAFC 82

FAMILY COURT OF AUSTRALIA

APPLEGATE & APPLEGATE

[2013] FamCAFC 82

FAMILY LAW – APPEAL – PROCEDURE – Application to extend time to file Notice of Appeal – Where the husband seeks leave to appeal from a decision for property settlement proceedings to be heard undefended and orders dismissing a subsequent application for an adjournment – Where no order was drawn up or issued to the parties by the Court following the decision to list the matter to proceed undefended if the husband failed to appear at the next hearing – Where the wife’s solicitor informed the husband of the decision as required by the Federal Magistrate – Where the husband engaged solicitors who appeared on his behalf at the hearing – Where the solicitors for the husband made an oral application for an adjournment, which the Federal Magistrate refused – Where the delay in bringing the application for leave to appeal out of time is short and explained – Where the draft grounds of appeal raise real issues for consideration about procedural fairness in this case – Where there is significant prejudice to the wife, which may be partially compensated by an order for costs – Application allowed, husband to pay the wife’s costs of and incidental to the application.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Clivery & Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Applegate

RESPONDENT:

Ms Applegate

FILE NUMBER:

TVC 454 of 2011

APPEAL NUMBER:

NA 21 of 2013

DATE DELIVERED:

23 May 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

23 May 2013

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

8 February 2013

28 November 2013

LOWER COURT MNC:

[2013] FMCAfam 144

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Barron & Allen Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Fellows

SOLICITOR FOR THE RESPONDENT:

SR Wallace & Wallace Lawyers

Orders

The application in an appeal filed on 18 April 2013 be allowed.
The time for the husband to file a Notice of Appeal out of time be extended to 13 June 2013.
The husband pay the wife’s costs of and incidental to this application to be assessed. Such costs be deducted from the husband’s share of the property settlement payable to the wife, or be payable to the wife on or before

31 August 2013, whichever be the earlier.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 21 of 2013
File Number: TVC 454 of 2011

Mr Applegate

Appellant

And

Ms Applegate

Respondent

REASONS FOR JUDGMENT

This is an application for an extension of time to file a Notice of Appeal against a decision made on 28 November 2012 and orders made on 8 February 2013 by Federal Magistrate Coker…

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 Applegate and Applegate

Details

AGLC: Applegate and Applegate [2013] FamCAFC 82
Case: [2013] FamCAFC 82
Decision Date

CaseChat Overview and Summary

In the matter of Applegate and Applegate, the husband sought leave to appeal against the orders made in property settlement proceedings, which included an order for the proceedings to be heard undefended and an order dismissing his application for an adjournment. The wife opposed the application, arguing that it was brought out of time and there was no adequate explanation for the delay. The court was required to determine whether the husband should be granted an extension of time to file a Notice of Appeal.

The court considered the well-established principles governing extensions of time in procedural matters, including the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. The court also considered the prospects of success of the appeal.

The court found that the husband's solicitors had acted diligently since being engaged, and the delay in filing the Notice of Appeal was due to confusion about the status of the proceedings and the relevance of the 28 November 2012 orders. The court also found that the draft grounds of appeal raised real issues for consideration about procedural fairness in this case. The court was satisfied that there was sufficient merit in the husband's proposed appeal to warrant an extension of time to file the Notice of Appeal.

The court acknowledged that there was significant prejudice to the wife if the application was allowed, as she would have to answer the appeal and incur further legal costs. However, the court was mindful of the importance of proportionality and the unfortunate circumstance that the husband controlled all the property and the wife was in a poor financial position. The court concluded that it was appropriate to grant the husband an extension of time and directed that he file a Notice of Appeal by 13 June 2013. The husband was ordered to pay the wife's costs of and incidental to the application.

Orders