Beckham and Desprez - [2019] FamCAFC 110

FAMILY COURT OF AUSTRALIA

BECKHAM & DESPREZ

[2019] FamCAFC 110

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the primary judge found the mother had contravened, without reasonable excuse, final parenting orders by failing to facilitate the child’s time with the father – Where the father sought an extension of time pursuant to r 1.14 of the Family Law Rules 2004 (Cth) to file a Notice of Appeal – Where neither the mother nor the independent children’s lawyer sought to participate in this application – Where there is no prejudice to either the mother or the independent children’s lawyer – Where the delay in bringing the application was not overly lengthy and the father offers at least some explanation for it – Where it cannot be said that Ground 2 of the draft Notice of Appeal is devoid of merit – Where an extension of time is required to prevent an injustice upon the father – Application granted.

Family Law Act 1975 (Cth) ss 94(2D)(a), 70NAE(5), 94AAA(5)
Family Law Rules 204 (Cth) rr 1.14, 22.03

Halford & Halford [2019] FamCAFC 43
Pendleton & Pendleton [2018] FamCAFC 203

APPLICANT:

Mr Beckham

RESPONDENT:

Ms Desprez

INDEPENDENT CHILDREN’S LAWYER:

Mr Damien Carter, Carter Farquar Mediation & Family Law

FILE NUMBER:

BRC

9516

2010

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

27 June 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

27 June 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 November 2018

LOWER COURT MNC:

[2018] FCCA 3889

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hartwell

SOLICITOR FOR THE APPLICANT:

C Lawyers

SOLICITOR FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders

That the time for the applicant father to file a Notice of Appeal from the orders made in the Federal Circuit Court of Australia on 20 November 2018 in accordance with his draft Notice of Appeal be extended until 4.00 pm on 4 July 2019.
Each party’s costs of and incidental to this application be reserved to the Full Court hearing the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 29 of 2019
File Number: BRC 9516 of 2010

Mr Beckham

Applicant

And

Ms Desprez

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

On 20 November 2018,…

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 Beckham and Desprez

Details

AGLC: Beckham and Desprez [2019] FamCAFC 110
Case: [2019] FamCAFC 110
Decision Date: 27 June 2019

CaseChat Overview and Summary

Beckham and Desprez involved a dispute concerning parental arrangements for a child, with the father, Beckham, seeking an extension of time to appeal orders made by the Federal Circuit Court of Australia on 20 November 2018. The application was heard in the Family Court of Australia, where the primary concern was the timely lodging of a Notice of Appeal by the father.

The legal issues before the court included whether the father had a valid reason for the delay in filing the Notice of Appeal and whether an extension of time should be granted. The court had to consider the provisions of the Family Law Act 1975, particularly regarding the time limits for appeals and the discretion available under the rules to extend such time.

In determining the application, the court noted the father's argument that he had been misled by a legal representative and had faced personal difficulties. The court acknowledged these factors and found them to be sufficient grounds for extending the time limit. It exercised its discretion under the rules to grant the extension until 4.00 pm on 4 July 2019. Additionally, the court reserved the costs of the application to the Full Court hearing the appeal.

The orders of the court were that the time for the father to file his Notice of Appeal be extended to the specified date, and the costs of the application be reserved for determination by the Full Court. The form of the order was subject to formal entry in the court's records.

Orders

Orders of the court

That the time for the applicant father to file a Notice of Appeal from the orders made in the Federal Circuit Court of Australia on 20 November 2018 in accordance with his draft Notice of Appeal be extended until 4.00 pm on 4 July 2019.

Each party’s costs of and incidental to this application be reserved to the Full Court hearing the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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