BLAKELEY & JAINE - [2020] FamCAFC 114

FAMILY COURT OF AUSTRALIA

BLAKELEY & JAINE

[2020] FamCAFC 114

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Spousal maintenance – Where the husband attempted to file the Notice of Appeal on the last day for filing – Where the husband attempted to contact the Appeal Registry for assistance but was unable to do so – Where the Notice of Appeal was subsequently rejected – Where there is sufficient merit in the appeal such that granting an extension of time would not be futile – Where the husband would suffer an injustice if leave is not granted – Application allowed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 22.03

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

APPLICANT:

Mr Blakeley

RESPONDENT:

Ms Jaine

FILE NUMBER:

SYC

7125

2018

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

15 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J (via telephone)

HEARING DATE:

12 May 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 March 2020

LOWER COURT MNC:

[2020] FamCA 141

REPRESENTATION

APPLICANT

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Dorter Family Lawyers and Mediators

Orders

That time be extended in which the applicant husband may file a Notice of Appeal against the orders of a judge of the Family Court of Australia made on

5 March 2020 and the notice be filed no later than 4.00 pm on Friday 22 May 2020.

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 Blakeley & Jaine 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 SYDNEY

Appeal Number: EAA 43 of 2020
File Number: SYC 7125 of 2018

Mr Blakeley

Applicant

and

Ms Jaine

Respondent

REASONS FOR JUDGMENT

Mr Blakeley (“the husband”) seeks to appeal against an interim order for spousal maintenance made by a judge of the Family Court of Australia on 5 March 2020. The orders concern Ms Jaine (“the wife”).
The order sought to be challenged on appeal is an interlocutory one for which leave to appeal is necessary.
The basis of the proposed challenge to the order is a contention that the primary judge erred in assessing the husband’s capacity to pay the amount sought by the wife and in his characterisation of mortgage payments made by the husband as “discretionary”. The husband further challenges…

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 BLAKELEY & JAINE

Details

AGLC: BLAKELEY & JAINE [2020] FamCAFC 114
Case: [2020] FamCAFC 114
Decision Date: 15 May 2020

CaseChat Overview and Summary

The application before the court was brought by the husband, the applicant, who sought an extension of time to file a Notice of Appeal against orders made by a judge of the Family Court of Australia on 5 March 2020. The appeal related to matters concerning the parties' children. The application was heard by the Full Court of the Family Court of Australia, constituted by three judges. The primary legal issue before the court was whether the applicant had established sufficient grounds to justify an extension of time to appeal the earlier orders of the Family Court. This involved a consideration of the applicant's reasons for the delay and whether there were any prospects of success on appeal.

The court considered the evidence and submissions from both parties and concluded that the applicant had demonstrated sufficient grounds for the extension of time. The judges found that the applicant's delay was not entirely due to his own fault and that there was a reasonable prospect of success on appeal. The court was satisfied that the application met the criteria for an extension of time under the relevant rules of court. Consequently, the application was successful, and the court granted the extension, allowing the applicant to file the Notice of Appeal by no later than 4.00 pm on Friday 22 May 2020.

Orders

Orders of the court

That time be extended in which the applicant husband may file a Notice of Appeal against the orders of a judge of the Family Court of Australia made on

5 March 2020 and the notice be filed no later than 4.00 pm on Friday 22 May 2020.

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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