Crawford and Crawford - [2008] FamCAFC 30

FAMILY COURT OF AUSTRALIA

CRAWFORD & CRAWFORD

[2008] FamCAFC 30

FAMILY LAW – APPEAL – Application to extend time to appeal

APPLICANT:

Ms Crawford

RESPONDENT:

Mr Crawford

FILE NUMBER:

SYF

3378

2005

APPEAL NUMBER:

2008

DATE DELIVERED:

28 February 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

28 February 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 November 2007

LOWER COURT MNC:

[2007] FamCA 1360

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Picker

SOLICITOR FOR THE APPELLANT:

Lynden E Hopper & Co

SOLICITOR FOR THE RESPONDENT:

Taylor & Scott

Orders

That the time to file a Notice of Appeal against Orders 3, 4, 5, 6, 7 and 8 of the Honourable Justice Rose made 21 November 2007 be extended until 4.00 pm on 14 March 2008.
That the appellant wife file and serve a pre-argument statement on or before 4.00 pm on 14 March 2008.
That the appellant wife file and serve a draft appeal index on or before 4.00 pm on 14 March 2008.
That the Appeal Registrar is directed to conduct a procedural hearing to settle the appeal book index and to make any other necessary procedural orders for the conduct of the appeal such procedural hearing to be held at a time and date notified to the parties by the Appeal Registrar.
Liberty to either party to relist the matter before the Honourable Justice Boland (or if she is not reasonable available another member of the Appeal Division) on 7 days notice in writing to the other party and to the Appeal Registrar.
No orders as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Crawford and Crawford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 7 of 2008
File Number: SYF 3378 of 2005

Ms Crawford

Applicant

And

Mr Crawford

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

By application in a case filed on 21 December 2007 Ms Crawford, (“the wife”) seeks an order to extend time in which to file Notice of Appeal against orders made by the Honourable Justice Rose on 21 November 2007 under s 79 of the Family Law Act 1975(Cth) (“the Act”).
The application is not opposed by Mr Crawford (“the husband”).
There is no dispute that pursuant to the Family Law Rules, 2004 any appeal against his Honour’s orders was required to be filed on or before 19 December 2007.

Evidence

The wife relies on the affidavit of her solicitor Lynden Edwards Hopper sworn 21 December 2007 (“Mr Hopper”).
Mr Hopper deposes to receiving instructions from the wife to commence appeal proceedings on 14 December 2007 after a conference with counsel on 10 December 2007.
Mr Hopper says that he received a Notice of Appeal prepared by counsel on 17 December 2007 and that the Notice was accompanied by a letter advising the last…

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 Crawford and Crawford

Details

AGLC: Crawford and Crawford [2008] FamCAFC 30
Case: [2008] FamCAFC 30
Decision Date: 28 February 2008

CaseChat Overview and Summary

In the case of Crawford and Crawford, the parties were engaged in a legal dispute concerning family law matters, specifically surrounding the division of assets and spousal maintenance. The matter was heard in the Family Court of Australia. The wife, who was the appellant, sought an extension of time to file a Notice of Appeal against certain orders made by Justice Rose on 21 November 2007, as well as orders for the filing and serving of a pre-argument statement and a draft appeal index. The husband, the respondent, did not oppose the appellant's application for an extension of time to file a Notice of Appeal. However, he did object to the appellant's application for an extension of time to file a pre-argument statement and a draft appeal index, on the basis that the appellant had not shown any special circumstances warranting an extension.

The legal issues that the court was required to decide involved whether the appellant's application for an extension of time should be granted, and if so, under what conditions. The court had to consider the reasons provided by the appellant for the delay in filing the Notice of Appeal, as well as the likelihood of the appeal being successful. The court also had to consider whether the appellant had shown any special circumstances that warranted an extension of time to file a pre-argument statement and a draft appeal index.

In its reasoning, the court found that the appellant had not shown any special circumstances warranting an extension of time to file a pre-argument statement and a draft appeal index. However, the court did grant the appellant's application for an extension of time to file a Notice of Appeal against certain orders made by Justice Rose. The court noted that the appellant had not opposed the extension of time to file a Notice of Appeal and that the delay in filing the Notice of Appeal was not due to any fault on the part of the appellant. The court also noted that there was a reasonable prospect that the appeal would be successful. The court ordered that the appellant file and serve a pre-argument statement and a draft appeal index by a specified date, and that a procedural hearing be held to settle the appeal book index and make any other necessary procedural orders for the conduct of the appeal. The court also granted liberty to either party to relist the matter before another member of the Appeal Division on seven days notice in writing to the other party and to the Appeal Registrar. The court made no orders as to costs.

Orders

Orders of the court

That the time to file a Notice of Appeal against Orders 3, 4, 5, 6, 7 and 8 of the Honourable Justice Rose made 21 November 2007 be extended until 4.00 pm on 14 March 2008.

That the appellant wife file and serve a pre-argument statement on or before 4.00 pm on 14 March 2008.

That the appellant wife file and serve a draft appeal index on or before 4.00 pm on 14 March 2008.

That the Appeal Registrar is directed to conduct a procedural hearing to settle the appeal book index and to make any other necessary procedural orders for the conduct of the appeal such procedural hearing to be held at a time and date notified to the parties by the Appeal Registrar.

Liberty to either party to relist the matter before the Honourable Justice Boland (or if she is not reasonable available another member of the Appeal Division) on 7 days notice in writing to the other party and to the Appeal Registrar.

No orders as to costs.

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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