FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ardell & Thorn (No 2) [2023] FedCFamC1A 86
Appeal from: Ardell & Thorn (No 2) [2023] FedCFamC2F 310 Appeal number: NAA 108 of 2023 File number: MLC 5464 of 2022 Judgment of: AUSTIN J Date of judgment: 31 May 2023 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Where the applicant seeks review of the dismissal of the Application in an Appeal seeking leave to appeal out of time from a costs order – Consideration of Whitmore & Whitmore [2022] FedCFamC1A 75– Where there is no substantial issue to raise in the intended appeal – Where it would be futile to extend time for the applicant to bring the appeal – Application in an Appeal dismissed – Where the respondent did not seek costs – No order as to costs Legislation: Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 138
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.03, 14.05, 14.07
Cases cited: Ardell & Thorn [2023] FedCFamC1A 78
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackamarra v Krakouer (1998) 195 CLR 516; [1990] HCA 27
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 32 Date of hearing: 31 May 2023 Place: Sydney (via Microsoft Teams) The Applicant: Litigant in person Solicitor for the Respondent: Longton Legal ORDERS
NAA 108 of 2023
MLC 5464 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ARDELL
Applicant
AND: MR THORN
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
31 May 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 22 May 2023 is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Ardell & Thorn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Under consideration is an Application in an Appeal filed by the applicant on 22 May 2023, the purpose of which is to review the decision made by the appeal registrar (“the registrar”) exercising delegated power on 12 May 2023 to dismiss the applicant’s application for an extension of time within which to appeal from a costs…
Continue reading Ardell & Thorn (No 2)
Sign in free to access the full text
- AGLC
- Ardell & Thorn (No 2) [2023] FedCFamC1A 86
- Case
- [2023] FedCFamC1A 86
- Decision Date
CaseChat Overview and Summary
The court found that the applicant had not demonstrated a substantial issue to be raised on appeal. The applicant's submissions were largely repetitious of those made in the earlier appeal, and the court did not identify any new or different issues that could be argued on appeal. The applicant also did not provide a clear explanation for the delay in filing the appeal, and the court noted that the delay had already resulted in prejudice to the respondent. The court further found that the public policy of ensuring that finalised litigation is not unnecessarily reopened weighed against granting the extension. The court concluded that the application should be dismissed.
The court dismissed the application for the review of the registrar’s decision, affirming the decision to deny the extension of time to appeal the costs order. The court found that the applicant had not demonstrated a substantial issue to be raised on appeal and that other relevant considerations did not support granting the extension. The applicant was ordered to pay the respondent’s costs of the review application in the sum of $2,000.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.