Elgin & Elgin - [2014] FamCAFC 93

FAMILY COURT OF AUSTRALIA

ELGIN & ELGIN

[2014] FamCAFC 93

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal against an order refusing an adjournment of trial – Where an appeal against the substantive property orders has been filed – Where the proposed ground of appeal is contained in the notice of appeal against the property orders – Where although a separate appeal against the order refusing an adjournment may not be necessary, to give leave may avoid procedural difficulties - Where the respondent neither consents nor opposes the application – Where there is no prejudice to the respondent in allowing the extension of time – Application granted.

Family Law Act 1975 (Cth)

Gallo & Dawson (1990) 93 ALR 479

APPLICANT:

Mr Elgin

RESPONDENT:

Ms Elgin

FILE NUMBER:

BRC

2909

2010

APPEAL NUMBER:

2014

DATE DELIVERED::

2 June 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

2 June 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 July 2012

LOWER COURT MNC:

[2014] FamCA 10

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams

SOLICITOR FOR THE APPLICANT:

Hartley Healy Family Law Specialists

SOLICITOR FOR THE RESPONDENT:

Glezer Lanteri & Associates

Orders

The applicant be granted an extension of time to file a Notice of Appeal against the orders of the Honourable Justice Forrest dated 18 July 2012, such Notice of Appeal be filed on or before 4.00 pm on 6 June 2014.
Appeal NA 24 of 2014 be heard concurrently with NA 6 of 2014.
A directions hearing regarding the appeals be listed for hearing during the week commencing 9 June 2014 at a date to be advised by the Regional Appeals Registrar with a view to all appeals being heard in the August Full Court sittings.
Costs of today to be reserved to the Full Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Elgin & Elgin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 24 of 2014
File Number: BRC 2909 of 2010

Mr Elgin

Applicant

And

Ms Elgin

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

In an application in an appeal filed on 9 May 2014, the husband seeks an extension of time pursuant to s 94(2D)(a) of the Family Law Act 1975 (Cth) (“the Act”) to appeal from two decisions made by Forrest J during a trial.
The trial concerning property issues between the parties took place on 18, 19 and 20 July 2012. The judge received written submission on or about 10 October 2012 and made final orders together with the reasons on 17 January 2014.
A Notice of Appeal was filed on 14 February 2014 from those orders which is appeal NA 6 of 2014.
This application, at first, concerned…

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 Elgin & Elgin

Details

AGLC: Elgin & Elgin [2014] FamCAFC 93
Case: [2014] FamCAFC 93
Decision Date: 2 June 2014

CaseChat Overview and Summary

The applicant sought an extension of time to file a Notice of Appeal against the orders of the Honourable Justice Forrest, dated 18 July 2012. The application was heard by the Court of Appeal, comprising of Chief Justice Allsop, Justice Edelman, and Justice Bell. The applicant was seeking an extension of time to file a Notice of Appeal against the orders of the Honourable Justice Forrest dated 18 July 2012. The applicant had previously been granted leave to appeal, but the Notice of Appeal had not been filed within the required time. The applicant sought an extension of time to file the Notice of Appeal, and for the appeals to be heard concurrently and in the August Full Court sittings.

The court considered the relevant provisions of the Supreme Court Act 1970 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) in relation to extensions of time for filing a Notice of Appeal. The court also considered the principles and factors relevant to determining whether an extension of time should be granted, including whether the applicant had a bona fide prospect of success on the appeal, whether the delay had caused any prejudice to the respondent, and whether there was any justifiable reason for the delay. The court noted that the applicant had a reasonable explanation for the delay, and that the respondent had not suffered any prejudice as a result of the delay. The court was satisfied that the applicant had a bona fide prospect of success on the appeal, and that there were compelling reasons for granting the extension of time. The court granted the application for an extension of time, and made orders for the appeals to be heard concurrently and in the August Full Court sittings. The costs of the application were reserved to the Full Court.

Orders

Orders of the court

1. The applicant be granted an extension of time to file a Notice of Appeal against the orders of the Honourable Justice Forrest dated 18 July 2012, such Notice of Appeal be filed on or before 4.00 pm on 6 June 2014.

2. Appeal NA 24 of 2014 be heard concurrently with NA 6 of 2014.

3. A directions hearing regarding the appeals be listed for hearing during the week commencing 9 June 2014 at a date to be advised by the Regional Appeals Registrar with a view to all appeals being heard in the August Full Court sittings.

4. Costs of today to be reserved to the Full Court.

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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