Calafiore and Netia - [2018] FamCAFC 220

FAMILY COURT OF AUSTRALIA

CALAFIORE & NETIA

[2018] FamCAFC 220

FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Where the primary judge made a declaration pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) that the father be assessed for child support – Where the Child Support Agency backdated the assessment to when the application for assessment was initially made by the mother – Where the father was assessed by the Child Support Agency as having to pay back a significant child support liability – Whether the primary judge erred in failing to make an order granting the mother an extension of time to file an application pursuant to s 106A – Whether the primary judge failed to consider the respective prejudice to each of the parties of extending time to file an application pursuant to s 106A – Where there was a substantial issue to be raised on appeal – Where there was an adequate explanation for delay – Application allowed.

Child Support (Assessment) Act 1989 (Cth) ss 7A, 30, 33, 34, 106A
Family Law Act 1975 (Cth)
Federal Circuit Court Rules 2001 (Cth) rr 3.05, 16.05, 25A.06

Bant & Clayton [2014] FamCAFC 108
Deputy Commissioner of Taxation v Jaskola [2011] FMCA 67
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176
Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31
Sims v RM Capital Pty Ltd (No 2) [2015] FCCA 149

APPLICANT:

Mr Calafiore

RESPONDENT:

Ms Netia

FILE NUMBER:

BRC

9596

2017

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

15 November 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

15 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 December 2017

LOWER COURT MNC:

[2017] FCCA 3430

REPRESENTATION

FOR THE APPLICANT:

Unrepresented

FOR THE RESPONDENT:

Unrepresented

Orders

The Application in an Appeal for extension of time filed by the father on 30 August 2018 be allowed.
The father file his Notice of Appeal, including any Amended Notice of Appeal which in turn seeks leave to appeal, within twenty-one (21) days from the date upon which the order by Judge Spelleken, amended pursuant to the slip rule, issues from her Honour.

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 Calafiore & Netia 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…

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.

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Details

AGLC: Calafiore and Netia [2018] FamCAFC 220
Case: [2018] FamCAFC 220
Decision Date: 15 November 2018

CaseChat Overview and Summary

Calafiore and Netia involved the parents of a child, who were in the process of divorcing. The father sought to appeal a decision made by the Family Court regarding the custody of the child. The matter was heard in the Family Court of Australia. The primary legal issue before the court was whether to grant the father an extension of time to file his Notice of Appeal. The court needed to consider whether the father had a valid reason for the delay and whether granting the extension would be in the best interests of the child.

The court considered the father's explanation for the delay in filing his Notice of Appeal and found that he had a reasonable explanation. The father had experienced difficulties in locating legal representation and had been dealing with personal health issues. The court noted that the delay was not due to any fault of the father and that it was in the best interests of the child to grant the extension. The court also considered the impact of the delay on the mother and the child and found that it was not significant. Based on these considerations, the court decided to grant the father's application for an extension of time.

In its decision, the court allowed the father's application for an extension of time and ordered that he file his Notice of Appeal within twenty-one days of the amended order. The court emphasised that the extension was granted on the basis of the father's reasonable explanation for the delay and that any further delays would not be tolerated. The court also noted that the decision was subject to the entry of the order in the Court’s records. Overall, the court's decision was based on a careful consideration of the relevant factors and the best interests of the child.

Orders

Orders of the court

The Application in an Appeal for extension of time filed by the father on 30 August 2018 be allowed.

The father file his Notice of Appeal, including any Amended Notice of Appeal which in turn seeks leave to appeal, within twenty-one (21) days from the date upon which the order by Judge Spelleken, amended pursuant to the slip rule, issues from her Honour.

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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