Batey-Elton & Elton

Case [2009] FamCAFC 101

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

  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.

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

  1. 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.

  2. Mr Elton (“the husband”) resisted the wife’s Notice of Appeal and sought to maintain the trial Judge’s orders.

  3. On 5 December 2008 this Court…

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Details
AGLC
Batey-Elton & Elton [2009] FamCAFC 101
Case
[2009] FamCAFC 101
Decision Date

CaseChat Overview and Summary

The case of Batey-Elton & Elton involved a dispute between the husband and wife, Batey-Elton and Elton, respectively. The wife had initially appealed a decision related to their property settlement, which was dismissed by the court. She subsequently sought to reinstate the appeal, which was the subject of the application before the court. The husband opposed the reinstatement of the appeal, arguing that the application was filed out of time and was otherwise without merit. The court was required to determine whether the application for reinstatement should be granted, and if not, whether the wife should be ordered to pay the husband's costs.

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

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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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