Arndale and Kingley - [2010] FamCAFC 175

FAMILY COURT OF AUSTRALIA

ARNDALE & KINGLEY

[2010] FamCAFC 175

FAMILY LAW - APPEAL – PARENTING – Application for an extension of time to appeal two interim decisions – Leave opposed by the father and the Independent Children’s Lawyer – Little explanation provided as to the delay – Where the judge did not disqualify himself –Where there is no order to appeal – No real merit in the grounds of appeal – Where there would be prejudice to the father should leave be granted due to delay of the trial – Child currently lives with the mother and is not spending time with the father – Where the family report recommends that the child live with the father– Application dismissed.

FAMILY LAW - COSTS – Parties are at liberty to file written submissions with regard to the costs of the application.

Family Law Act 1975 (Cth)

Clivery & Conway [2010] FamCA 1435
Reisner& Reisner [2010] FamCA 473
Rice & Asplund [1979] FLC 90-725
SPS & PLS [2008] FamCAFC 16

APPELLANT:

Ms Arndale

RESPONDENT:

Mr Kingley

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

1363

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

10 September 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

2 September 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

3 December 2009

LOWER COURT MNC:

[2009] FamCA 1122
[2009] FamCA 1219

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Baston
COUNSEL FOR THE RESPONDENT:	Mr Anderson

SOLICITOR FOR THE RESPONDENT:	Smith & Associates Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Brasch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The application for leave to appeal out of time is dismissed.
The parties are at liberty to file written submissions with regard to the costs of the application in accordance with the following timetable:
(a) On behalf of the applicant within 21 days of the date hereof;
(b)On behalf of the respondent and the Independent Children’s Lawyer within 21 days thereafter;
(c)On behalf of the applicant in reply within seven days thereafter, and;
(d)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

IT IS NOTED that publication of this judgment under the pseudonym Arndale & Kingley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 82 of 2010
File Number: BRC 1363 of 2008

Ms Arndale

Appellant

And

Mr Kingley

Respondent

REASONS FOR JUDGMENT

In an application filed 19 July 2010, the mother seeks leave out of time to appeal two interim decisions. It is necessary in this case to set out at some length the history of the matter and refer to parts of the evidence.

History

The proceedings between the parties concerns parenting orders for the child C born December 2006.
The matter has been managed as part of…

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 Arndale and Kingley

Details

AGLC: Arndale and Kingley [2010] FamCAFC 175
Case: [2010] FamCAFC 175
Decision Date: 10 September 2010

CaseChat Overview and Summary

Arndale and Kingley involved a dispute between two parties regarding an application for leave to appeal out of time. The case was heard by the Family Court of Australia. The applicant sought permission to file an appeal beyond the statutory time limit, arguing exceptional circumstances warranted the extension. The respondent opposed the application, and the Independent Children’s Lawyer also provided input.

The court was tasked with determining whether the applicant's circumstances were exceptional enough to justify an extension of time. The applicant needed to demonstrate that the delay in filing the appeal was not due to their own neglect or fault but rather to an extraordinary situation. The court also needed to weigh the interests of the parties and the welfare of any children involved in the dispute.

In its reasoning, the court found that the applicant had not demonstrated exceptional circumstances that warranted an extension of time. The court concluded that the applicant's delay was due to their own actions and not an extraordinary situation beyond their control. Consequently, the application for leave to appeal out of time was dismissed. The court directed the parties to file written submissions on the costs of the application within a specified timeframe, indicating the parties were at liberty to address the financial implications of the application.

Orders

Orders of the court

The application for leave to appeal out of time is dismissed.

The parties are at liberty to file written submissions with regard to the costs of the application in accordance with the following timetable:

(a) On behalf of the applicant within 21 days of the date hereof;

(b) On behalf of the respondent and the Independent Children’s Lawyer within 21 days thereafter;

(d) That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

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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