Chong & Chong

[2016] FamCAFC 211

FAMILY COURT OF AUSTRALIA

CHONG & CHONG [2016] FamCAFC 211

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks an extension of time to file an appeal – Where the respondent seeks that the application be dismissed – Where the affidavit filed by the respondent in support of the application for dismissal is unnecessary and improper – Where there is neither an adequate nor an acceptable explanation for the failure to file a Notice of Appeal within time – Where there is no merit in any of the proposed grounds of appeal and there is no chance of the appeal succeeding if leave to appeal was granted – Where the prejudice to the respondent in defending the proposed appeal outweighs any prejudice or injustice caused to the applicant if the application is dismissed – Application dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the respondent seeks costs on a party/party basis – Where the application has been wholly unsuccessful and the respondent should have an order for costs in her favour – Costs ordered in favour of the respondent save and except for costs in relation to the respondent’s affidavit filed in support of an order for dismissal.

Family Law Act 1975 (Cth) – s 94AA

Family Law Rules (2004) (Cth) – rr 22.03 and 22.09

Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
McMahon and McMahon (1976) FLC 90-038
Rutherford and Rutherford (1991) FLC 92-255

APPLICANT: Mr Chong

RESPONDENT: Ms Chong

FILE NUMBER: MLC 11660 of 2015

APPEAL NUMBER: SOA 52 of 2016

DATE DELIVERED: 3 November 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland J

HEARING DATE: 11 August 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 30 May 2016

LOWER COURT MNC: [2016] FCCA 1559

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Teicher

SOLICITOR FOR THE APPLICANT: Jeanne Gorman Solicitor

COUNSEL FOR THE RESPONDENT: Ms Vohra

SOLICITOR FOR THE RESPONDENT: Kennedy Partners

Orders

1. The application in an appeal filed by the applicant husband on 7 July 2016 be dismissed.

2. The applicant husband pay the respondent wife’s costs of and incidental to the application in an appeal (but not including any costs for the affidavit of the respondent wife filed on 3 August 2016), such costs to be assessed in default of agreement.

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 Chong & Chong 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…