FAMILY COURT OF AUSTRALIA
| BATEY-ELTON & ELTON | [2009] FamCAFC 101 |
| FAMILY LAW – APPEAL – REINSTATE APPEAL –Wife’s application for reinstatement of appeal in circumstances in which wife failed to comply with orders of Full Court dismissed - Wife failed to adequately explain failure to comply with previous orders of Full Court - Wife failed to demonstrate prospect of substance in challenges to trial judge’s refusal to disqualify himself from further hearing of proceedings - Not demonstrated that refusal to reinstate appeal would visit injustice upon wife - Reinstatement of appeal would visit injustice upon husband and constitute abuse of the Court’s processes - Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 cited |
| Family Law Act 1975 (Cth) s 117(2)(a) |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 In the Marriage of L and CL Kohan (1992) 16 Fam LR 245 ; (1993) FLC 92‑340 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Yunghanns v Yunghanns (2000) 26 Fam LR 331 ; (2000) FLC 93‑029 ; [2000] FamCA 681 |
| APPELLANT: | MS BATEY-ELTON |
| RESPONDENT: | MR ELTON |
| INTERVENOR: | Independent Children’s Lawyer |
| FILE NUMBER: | TVF | 2250 | of | 2004 |
| APPEAL NUMBER: | NA | 79L | of | 2008 |
| DATE DELIVERED: | 12 June 2009 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Coleman, Warnick & May JJ |
| HEARING DATE: | 18 May 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 June 2008 |
| LOWER COURT MNC: | [2008] FamCA 562 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self Represented |
| SOLICITOR FOR THE APPELLANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Page SC |
| SOLICITOR FOR THE RESPONDENT: | Rod Madsen Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
Orders
That the application for reinstatement of appeal NA79L/2008 filed 3 March 2009 be dismissed.
That the wife pay the husband’s costs of and incidental to such application and of appeal NA79L/2008 as agreed or assessed on a party and party basis.
IT IS NOTED that publication of this judgment under the pseudonym Batey-Elton & Elton is approved 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 79L of 2008
File Number: TVF 2250 of 2004
| MS BATEY-ELTON |
Appellant
And
| MR ELTON |
Respondent
And
| Independent Children’s Lawyer |
Intervenor
REASONS FOR JUDGMENT
By Application filed 3 March 2009 Ms Batey-Elton (“the wife”) sought an order reinstating a Notice of Appeal filed by her on 21 July 2008. By her Notice of Appeal the wife sought an order that the refusal of Jordan J to disqualify himself from further hearing proceedings involving the wife on 20 June 2008 be discharged, and that an order be made disqualifying Jordan J from further hearing proceedings involving the wife.
Mr Elton (“the husband”) resisted the wife’s Notice of Appeal and sought to maintain the trial Judge’s orders.
On 5 December 2008 this Court…
Continue reading Batey-Elton & Elton
Sign in free to access the full text
- AGLC
- Batey-Elton & Elton [2009] FamCAFC 101
- Case
- [2009] FamCAFC 101
- Decision Date
CaseChat Overview and Summary
The court found that the application for reinstatement was filed well beyond the time limit set out in the relevant rules, and that the wife had not provided any satisfactory explanation for the delay. The court also noted that the wife had failed to establish any grounds for setting aside the original dismissal of the appeal, and that there were no exceptional circumstances that warranted the reinstatement of the appeal. The court held that the application should be dismissed, and that the wife should pay the husband's costs associated with the application and the original appeal.
The court's decision was based on a careful consideration of the relevant rules and authorities, as well as the specific circumstances of the case. The court found that the wife's application was clearly out of time, and that she had not provided any satisfactory explanation for the delay. The court also noted that there were no exceptional circumstances that warranted the reinstatement of the appeal, and that the application should be dismissed. The court ordered that the wife pay the husband's costs associated with the application and the original appeal, as agreed or assessed on a party and party basis.
Orders
Orders of the court
1.
That the application for reinstatement of appeal NA79L/2008 filed 3 March 2009 be dismissed.
2.
That the wife pay the husband’s costs of and incidental to such application and of appeal NA79L/2008 as agreed or assessed on a party and party basis.
Background
Background to the litigation
Full text does not contain this section.
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.