Bishop and Bishop - [2012] FamCAFC 63

FAMILY COURT OF AUSTRALIA

BISHOP & BISHOP

[2012] FamCAFC 63

FAMILY LAW – APPEAL – Application to extend time to appeal – applicant conceded little explanation for three month delay – certain grounds of appeal found to be capable of success or at least arguable – some prejudice could be assumed to respondent if granted – discretion exercised to grant extension in order to avoid injustice – applicant to pay costs of the respondent of and incidental to the Application

Family Law Act 1975 (Cth)

Coghlan v Coghlan (2005) FLC 93-220; (2005) 33 Fam LR 414
Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Bishop

RESPONDENT:

Mrs Bishop

FILE NUMBER:

CAC

142

2008

APPEAL NUMBER:

2012

DATE DELIVERED:

11 May 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn J

HEARING DATE:

20 March 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 August 2011

LOWER COURT MNC:

[2011] FMCAfam 790

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Garden Montgomerie Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Brzostowski

SOLICITOR FOR THE RESPONDENT:

Walsh Blair Lawyers

Orders

The husband be granted an extension of time to file a notice of appeal against the orders made by Federal Magistrate Lindsay on 11 August 2011 (as amended on or about 27 September 2011), and to this end the husband have leave to file such notice of appeal within 7 days of the date of these orders.
The husband pay the costs of the wife of and incidental to his Application (filed 23 December 2011) seeking an extension of time to appeal, with such costs to be assessed in default of agreement.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 5 of 2012
File Number: CAC 142 of 2008

Mr Bishop

Applicant

And

Mrs Bishop

Respondent

REASONS FOR JUDGMENT

This is an application filed on 23 December 2011 on behalf of Mr Bishop (“the husband”) for leave to appeal out of time orders for property settlement made by Lindsay FM on 11 August 2011 (as amended pursuant to “the slip rule” on or about 27 September 2011). The orders were made in proceedings between the husband and Mrs Bishop (“the wife”). The wife opposes the grant of an extension of time for the husband to appeal the orders.
The orders sought to be appealed by the husband resulted in a division of the net value of certain assets, which his Honour found to be $1,134,470.78, in the proportions of 55/45% in favour of the husband. His Honour excluded from his division not only the parties’ superannuation interests (valued at $34,507.00 for the husband and $96,650.00 for the wife), but also the assets and /or monies attributable to an inheritance by the wife (which totalled some…

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 Bishop and Bishop

Details

AGLC: Bishop and Bishop [2012] FamCAFC 63
Case: [2012] FamCAFC 63
Decision Date: 11 May 2012

CaseChat Overview and Summary

The case of Bishop and Bishop involved the husband, who sought an extension of time to appeal against certain orders made by Federal Magistrate Lindsay on 11 August 2011 and subsequently amended around 27 September 2011. The wife contested the application, arguing that the husband's application for an extension of time was both untimely and without merit. The matter was heard in the Family Court of Australia.

The primary legal issue before the court was whether the husband should be granted an extension of time to file a notice of appeal against the orders made by Federal Magistrate Lindsay. The court needed to consider the grounds upon which the husband sought the extension, whether the delay in filing the application for an extension was reasonable, and whether the husband had a meritorious case on appeal. Additionally, the court had to decide whether the husband should bear the costs of the wife's response to his application.

In granting the husband leave to file a notice of appeal within a specified timeframe, the court found that the husband's application, while delayed, was not without merit. The court accepted that the husband had a reasonable excuse for the delay and that the appeal had a reasonable chance of success. The court emphasised the importance of the husband's right to appeal and the need for flexibility in the Family Court in such circumstances. However, the court also ordered that the husband pay the wife's costs of and incidental to the application, as the delay was not excusable and caused unnecessary expense. The costs were to be assessed if the parties could not agree on the amount.

Orders

Orders of the court

The husband be granted an extension of time to file a notice of appeal against the orders made by Federal Magistrate Lindsay on 11 August 2011 (as amended on or about 27 September 2011), and to this end the husband have leave to file such notice of appeal within 7 days of the date of these orders.

The husband pay the costs of the wife of and incidental to his Application (filed 23 December 2011) seeking an extension of time to appeal, with such costs to be assessed in default of agreement.

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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