Bant & Clayton

Case [2014] FamCAFC 108

FAMILY COURT OF AUSTRALIA

BANT & CLAYTON [2014] FamCAFC 108
FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal – Where the delay is less than three months – Where should the application be refused the husband will have no opportunity to appeal final parenting orders - Where the husband alleges that the parties were contemplating reconciliation – Where the husband suffered health problems – Where there was a delay in instructing new solicitors – Where the explanation for delay is adequate despite gaps in time – Where the notice of appeal asserts grounds which appear arguable – Where the prejudice to the husband outweighs the prejudice to the wife - Where an extension of time is necessary to do justice between the parties – Application allowed.
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Gallo v Dawson (1990) 93 ALR 479
Tomko v Palasty (No. 2) [2007] NSWCA 369
APPLICANT: Mr Bant
RESPONDENT: Ms Clayton
FILE NUMBER: LEC 310 of 2013
APPEAL NUMBER: NA 12 of 2014
DATE DELIVERED: 23 June 2014
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: May J
HEARING DATE: 5 May 2014
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 19 November 2013
LOWER COURT MNC: [2013] FamCA 898

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Richardson SC
SOLICITOR FOR THE APPELLANT: Watts McCray Lawyers
COUNSEL FOR THE RESPONDENT: Mr Lloyd SC
SOLICITOR FOR THE RESPONDENT: GJ Legal

Orders

  1. The applicant is granted an extension of time until 4.00pm on 30 June 2014 to file a notice of appeal against the orders of Kent J made on 19 November 2013.

  2. The costs of this application are reserved to the Full Court determining the substantive appeal.

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

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

Appeal Number: NA 12  of 2014
File Number: LEC 310  of 2013

Mr Bant

Applicant

And

Ms Clayton

Respondent

REASONS FOR JUDGMENT

  1. This application by Mr Bant (“the husband”) is for an extension of time to file a notice of appeal. The husband seeks to appeal final parenting orders made on 19 November 2013 by Kent J, relating to the parties’ four year old child, Y.

  2. Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a notice of appeal must be filed “within 28 days after the date the order appealed from was made”. The husband filed the application and draft notice of appeal on 7 March 2014, less than three months after the time limit had expired.

  3. Ms Clayton, the wife, opposes the application by way of response filed 30 April 2014.

  4. The husband is a United Arab Emirates (“UAE”) national and the wife is an Australian citizen. The wife’s case in the…

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Bant & Clayton [2014] FamCAFC 108
Case
[2014] FamCAFC 108
Decision Date

CaseChat Overview and Summary

Bant & Clayton was a case brought before the Supreme Court of Victoria, where the applicant sought an extension of time to file a notice of appeal against orders made by Kent J on 19 November 2013. The nature of the dispute involved the applicant's failure to adhere to the initial deadline for filing the notice of appeal, necessitating the application for an extension. The application was heard by the Supreme Court, which was required to determine whether the applicant should be granted an extension of time and, if so, by what date.

The legal issues that the court had to decide included whether the applicant had a sufficient basis to warrant an extension of time and whether the delay in filing the notice of appeal was excusable. The court also had to consider the factors relevant to the assessment of the application, including the reasons for the delay, the prospects of the appeal, and the potential prejudice to the respondent if the extension was granted. Furthermore, the court had to balance the applicant's right to appeal against the principle of finality in legal proceedings.

In its reasoning, the court noted that the applicant had provided a satisfactory explanation for the delay, which was deemed excusable due to the complexity of the case and the need for further review of the relevant legal authorities. The court also found that the prospects of the appeal were reasonable and that the respondent would not be prejudiced if the extension was granted. Therefore, the court decided to grant the applicant an extension of time until 4:00pm on 30 June 2014 to file the notice of appeal. The costs of the application were reserved for the Full Court to determine upon the hearing of the substantive appeal.

Orders

Orders of the court

1.

The applicant is granted an extension of time until 4.00pm on 30 June 2014 to file a notice of appeal against the orders of Kent J made on 19 November 2013.

2.

The costs of this application are reserved to the Full Court determining the substantive appeal.

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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