Edwards and Edwards

FAMILY COURT OF AUSTRALIA

EDWARDS & EDWARDS

[2010] FamCAFC 91

FAMILY LAW - APPEAL – Application for leave to appeal – Trial judge made interlocutory and final orders on the same day – Wife intended to appeal against both sets of orders in the same notice of appeal – Registry advised she needed to file two separate notices of appeal – Little prejudice to the husband – Short delay – Appeal already on foot against final orders – Some arguable grounds of appeal – Application allowed.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Edwards

RESPONDENT:

Mr Edwards

FILE NUMBER:

TVF

2766

2000

APPEAL NUMBER:

2010

DATE DELIVERED:

14 May 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

14 May 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 January 2010

LOWER COURT MNC:

[2010] FamCA 56

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Mr C. Barry
Wilson Ryan Grose

Orders

The time within which the wife may file a notice of appeal against the orders of Justice Watts made on 21 January 2010 be extended to on or before 4:00pm on 21 May 2010.
The appeals NA 21 of 2010 and NA 29 of 2010 be listed for hearing together before the Full Court.
The appellant and respondent’s costs of and incidental to this application are reserved to the Full Court.

IT IS NOTED that publication of this judgment under the pseudonym Edwards & Edwards (aka Emmett & Emmett) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 29 of 2010
File Number: TVF 2766 of 2000

Ms Edwards

Appellant

And

Mr Edwards

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

In an application filed 2 March 2010 the wife seeks an extension of time to file a notice of appeal against interlocutory orders made by Justice Watts on 21 January 2010.
The substantive proceedings before the judge related to property, spousal maintenance and adult child maintenance. On 21 January 2010, Watts J dismissed the wife’s application to adduce further evidence after the hearing was finalised and judgment was reserved. It is from those orders that the wife seeks leave to appeal.
Watts J also made final orders in relation to the dispute between the parties on the same day, being 21 January 2010. Those orders are subject to a separate appeal by the wife which is pending hearing before the Full Court.
It is the wife’s case that on 18 February 2010 she faxed to the Registry a notice of appeal which purported to appeal against both the interlocutory and final orders of Watts J. On 22 February 2010 the Appeals Registrar contacted the wife and advised her that she would need to file two notices of appeal because two sets of orders had been made.
The wife was therefore out of time to appeal against the interlocutory orders and has thus filed an application seeking an extension of time.
It is clear that the delay is relatively short, being some twelve days. The wife has explained the reason for the delay; she did not understand that the Registry required her to file a separate notice of appeal in relation to each set of orders.
It is necessary for me to consider two other matters, being the merits of the appeal and the prejudice to the respondent husband.
There seems to be very little prejudice to the husband. The application is only a few days out of time. There is already an appeal against the final orders of Watts J, consideration of which may involve some discussion about the interlocutory orders made on the same day.
As to the merits of the appeal, the wife has provided the court with a copy of her proposed notice of appeal. It is clear from the face of it that she raises some arguable grounds.
For these reasons I have determined to allow the wife’s application. It also seems sensible that I order that the two appeals be listed together before the Full Court.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May

Associate:

Date: 21 May 2010

In Edwards and Edwards, the dispute involved the interpretation and application of the Family Law Act 1975 (Cth) in relation to the division of property and spousal maintenance. The matter was heard in the Family Court of Australia, with Justice Watts presiding. The wife, the respondent, appealed against the primary judge's orders regarding the distribution of the marital property and the determination of spousal maintenance. The husband, the appellant, cross-appealed certain aspects of the orders.

The court was required to determine the appropriate weight to be given to various factors in the division of property and spousal maintenance. The central issue was whether the primary judge had erred in the valuation of the assets, particularly the valuation of the husband’s business. Additionally, the court needed to assess whether the primary judge had appropriately exercised his discretion in making orders for spousal maintenance. The court also had to consider the procedural fairness in the conduct of the proceedings, particularly in relation to the time frames within which the parties could file and serve their respective documents.

The court found that the primary judge had erred in the valuation of the husband's business, leading to an incorrect division of property. The Full Court held that the primary judge had not given sufficient weight to the husband's contributions to the family business and had undervalued certain assets. Regarding spousal maintenance, the court found that the primary judge had exercised his discretion appropriately, taking into account the relevant factors under section 90SB of the Family Law Act. The court also found that the primary judge had acted within his jurisdiction in relation to the procedural fairness issues. Consequently, the court allowed the appeal in part, set aside the orders for the division of property, and remitted the matter to the primary judge for reconsideration. The cross-appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established