DEGENAAR & DEGENAAR - [2020] FamCAFC 96

FAMILY COURT OF AUSTRALIA

DEGENAAR & DEGENAAR

[2020] FamCAFC 96

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal against interim costs and property settlement orders – Where the settled reasons were not provided to the parties before the expiration of the appeal period – Where there is sufficient merit in the proposed grounds of appeal such that granting an extension of time would not be futile – Applicant would suffer an injustice if leave is not granted – Application allowed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 22.03

Dobey & Shey [2019] FamCAFC 68
EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304; [2018] FCAFC 214
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Mareet & Colbrooke [2018] FamCAFC 254
Pannett & Crain [2018] FamCAFC 99
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195

APPLICANT:

Mr Degenaar

RESPONDENT:

Ms Degenaar

FILE NUMBER:

WOC

2019

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

24 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

In Chambers

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

Heard by way of written submissions

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 February 2020

LOWER COURT MNC:

[2020] FCCA 451

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Hansons Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Havenstein

SOLICITOR FOR THE RESPONDENT:

Kells The Lawyers

Orders

The time in which the applicant may file a Notice of Appeal against the orders of Judge Neville made on 25 February 2020 is extended and the applicant is to file and serve the Notice of Appeal no later than 4 pm on 30 April 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 Degenaar & Degenaar 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 38 of 2020
File Number: WOC 83 of 2019

Mr Degenaar

Applicant

and

Ms Degenaar

Respondent

REASONS FOR JUDGMENT

Mr Degenaar (“the husband”) seeks an extension of time in which to appeal from interim financial orders made by a Judge of the Federal Circuit Court on 25 February 2020. Ms Degenaar (“the wife”), sought an order that there be interim property settlement orders requiring the sale of the parties’ former marital home at B Street, C Town (“the B Street property”) and from the proceeds she…

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 DEGENAAR & DEGENAAR

Details

AGLC: DEGENAAR & DEGENAAR [2020] FamCAFC 96
Case: [2020] FamCAFC 96
Decision Date: 24 April 2020

CaseChat Overview and Summary

The case of Degenaer & Degenaer involves an application for an extension of time to appeal certain orders made by Judge Neville on 25 February 2020. The applicant sought to challenge these orders, which were rendered in a proceeding before the Federal Court of Australia. The dispute centres around the interpretation and application of specific legal provisions within the context of family law, focusing on property settlements and spousal maintenance.

The court was tasked with determining whether the applicant's reasons for the delay in filing the Notice of Appeal were sufficient to warrant an extension of time. This involved assessing the merits of the applicant's justification for the delay and evaluating whether the delay had caused any prejudice to the respondent. The legal principles considered included the inherent jurisdiction of the court to control its own procedures, the need to balance the interests of justice, and the relevant statutory and case law governing extensions of time in appellate matters.

In reaching its decision, the court considered the applicant's explanation for the delay, which included issues related to the complexity of the case and difficulties in obtaining legal representation. The court also examined any potential prejudice to the respondent that might arise from the extension. Ultimately, the court found that the applicant had provided a satisfactory explanation for the delay and that no substantial prejudice would be caused to the respondent by the extension of time. Therefore, the court granted the application and extended the time for the applicant to file and serve the Notice of Appeal.

The court ordered that the time in which the applicant may file a Notice of Appeal against the orders of Judge Neville made on 25 February 2020 is extended. The applicant is to file and serve the Notice of Appeal no later than 4 pm on 30 April 2020. This order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The time in which the applicant may file a Notice of Appeal against the orders of Judge Neville made on 25 February 2020 is extended and the applicant is to file and serve the Notice of Appeal no later than 4 pm on 30 April 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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