Batta & Batta - [2021] FamCAFC 120

FAMILY COURT OF AUSTRALIA
Batta & Batta [2021] FamCAFC 120

Appeal from: Batta & Batta [2020] FCCA 3637

Appeal number(s): SOA 10 of 2021

File number(s): MLC 694 of 2018

Judgment of: STRICKLAND J

Date of judgment: 24 June 2021

Catchwords:
FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time in which to file a Notice of Appeal – Where the reasons for the failure of the applicant to file the Notice of Appeal within the time are understandable but not satisfactory – Where the applicant’s grounds of appeal are incompetent and do not identify any appellable error by the trial judge – Where there would be no prejudice to the applicant if the application is dismissed but serious prejudice to the respondent if it is granted – Application dismissed.

FAMILY LAW – COSTS – Where there are circumstances which justify an order for costs being made – Order made.

Legislation: Family Law Act 1975 (Cth) s 102NA

Cases cited: Gallo v Dawson [1993] ALR 479

Division: Appeal Division

Number of paragraphs: 35

Date of hearing: 24 June 2021

Place: Adelaide (parties appeared by MS Teams audio link)

Solicitor for the Applicant: In person

Solicitor for the Respondent: Ms Sim
ORDERS

SOA 10 of 2021
MLC 694 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:
MS BATTA

Applicant

AND:
MR BATTA

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

24 JUNE 2021

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 5 March 2021 be dismissed.
2.The applicant wife pay the costs of the respondent husband fixed in the sum of SEVEN HUNDRED AND FIFTY DOLLARS ($750).

AND UPON NOTING THAT the order for costs is in addition to the order for costs made previously on 27 April 2021.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Batta & Batta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT

Before the court today is an Application in an Appeal filed by Ms Batta (“the applicant wife”) on 5 March 2021. In that application, the primary order sought is for an extension of the time to file a Notice of Appeal against the orders made by Judge Stewart on 15 December 2020. There is also reference in the orders sought to the applicant wife not agreeing with the orders that were made, and the orders she wishes to appeal against, but that doesn't take the matter any further.
The application is supported by an affidavit…

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 Batta & Batta

Details

AGLC: Batta & Batta [2021] FamCAFC 120
Case: [2021] FamCAFC 120
Decision Date: 24 June 2021

CaseChat Overview and Summary

In the Family Court of Australia, Batta & Batta, the wife, the applicant, sought an extension of time to file a Notice of Appeal against a judgment given in proceedings between the parties. The husband, the respondent, opposed the application. The parties had been before the court in family law proceedings, and the wife was dissatisfied with a judgment made by the trial judge. She sought to appeal that decision.

The legal issues before the court were whether the wife had provided satisfactory reasons for her failure to file a Notice of Appeal within the time limit prescribed by the Family Law Rules 2004 (Cth), whether the grounds of appeal were competent, and whether there would be any prejudice to either party if the application was granted or dismissed. The court found that while the reasons provided by the wife for the delay were understandable, they were not satisfactory. The court also found that the grounds of appeal did not identify any error by the trial judge that could be the subject of an appeal. Finally, the court found that there would be no prejudice to the wife if the application was dismissed but there would be serious prejudice to the husband if it was granted.

Accordingly, the court dismissed the wife’s application for an extension of time. The court also ordered that the wife pay the husband’s costs of the application fixed in the sum of $750. This was in addition to costs ordered on an earlier application. The court noted that the form of the order was subject to entry in the court’s records and that this judgment may be subject to minor corrections or variations. The court also noted that it had approved publication of the judgment under the pseudonym Batta & Batta.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 5 March 2021 be dismissed.

2. The applicant wife pay the costs of the respondent husband fixed in the sum of SEVEN HUNDRED AND FIFTY DOLLARS ($750).

AND UPON NOTING THAT the order for costs is in addition to the order for costs made previously on 27 April 2021.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

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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Appeal from:	Batta & Batta [2020] FCCA 3637
Appeal number(s):	SOA 10 of 2021
File number(s):	MLC 694 of 2018
Judgment of:	STRICKLAND J
Date of judgment:	24 June 2021
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time in which to file a Notice of Appeal – Where the reasons for the failure of the applicant to file the Notice of Appeal within the time are understandable but not satisfactory – Where the applicant’s grounds of appeal are incompetent and do not identify any appellable error by the trial judge – Where there would be no prejudice to the applicant if the application is dismissed but serious prejudice to the respondent if it is granted – Application dismissed. FAMILY LAW – COSTS – Where there are circumstances which justify an order for costs being made – Order made.
Legislation:	Family Law Act 1975 (Cth) s 102NA
Cases cited:	Gallo v Dawson [1993] ALR 479
Division:	Appeal Division
Number of paragraphs:	35
Date of hearing:	24 June 2021
Place:	Adelaide (parties appeared by MS Teams audio link)
Solicitor for the Applicant:	In person
Solicitor for the Respondent:	Ms Sim

SOA 10 of 2021 MLC 694 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	MS BATTA Applicant
AND:	MR BATTA Respondent

ORDER MADE BY:	STRICKLAND J
DATE OF ORDER:	24 JUNE 2021