Estella and Morena (No 2) - [2014] FamCAFC 133

FAMILY COURT OF AUSTRALIA

ESTELLA & MORENA (NO. 2)

[2014] FamCAFC 133

FAMILY LAW – APPLICATION IN AN APPEAL - Application to file a notice of appeal out of time – Where leave was granted to file a notice of discontinuance at the commencement of the hearing – Application dismissed.

FAMILY LAW – COSTS - Where the respondent made application for costs – Where the respondent had only been informed that the applicant was not pursuing the application the day before the hearing – Where the proposed appeal had no merits and the application would not have been granted – Where the respondent is in receipt of a grant of legal aid – Where the public purse has been put to expense in responding to the application – Application allowed.

Family Law Act 1975 (Cth)

Clivery & Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479
House v The King (1936) 55 CLR 499

APPLICANT:

Mr Estella

RESPONDENT:

Ms Morena

FILE NUMBER:

BRC

10237

2007

APPEAL NUMBER:

2014

DATE DELIVERED:

23 July 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

23 July 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 December 2013

LOWER COURT MNC:

[2013] FamCA 1045

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Ms Smith as town agent for Hannays Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms Fairbrother of Legal Aid Queensland

Orders

The applicant is granted leave to file a notice of discontinuance.
The application in an appeal filed on 28 February 2014 is dismissed.
The applicant to pay the costs of the respondent, including the reserved costs of 23 April 2014, to be fixed in the sum of $2,593.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Estella & Morena has been approved by the Chief Justice 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 9 of 2014
File Number: BRC 10237 of 2007

Mr Estella

Appellant

And

Ms Morena

Respondent

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE

In an application filed 28 February 2014 Mr Estella (“the father”) asked for an extension of time to file a notice of appeal from orders made by Bell J on 11 December 2013. The father was self-represented at this time. His application was opposed by the mother and the Independent Children’s Lawyer.
On 23 April 2014 a solicitor appeared for the father and asked for an adjournment of the application so that the father could apply for a grant of legal aid. The application was adjourned and costs of the respondent and Independent Children’s Lawyer were reserved.
On or about 30 May 2014 the grant of legal aid was not approved. Today, the father has indicated that he wishes to withdraw the application and a notice of discontinuance of today’s date was filed by leave.
The only matter for my determination…

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 Estella and Morena (No 2)

Details

AGLC: Estella and Morena (No 2) [2014] FamCAFC 133
Case: [2014] FamCAFC 133
Decision Date

CaseChat Overview and Summary

The appeal in Estella & Morena (No 2) involved an application by Mr Estella for leave to file a notice of appeal out of time from certain orders made by Bell J in December 2013. The appeal was opposed by Ms Morena, the respondent, and the Independent Children's Lawyer. The central issue before the court was whether Mr Estella should be granted leave to file a notice of appeal beyond the statutory time limit, and if so, whether the appeal had any merit. The court also considered the respondent's application for costs.

The court dismissed the application for leave to file a notice of appeal out of time. The court found that Mr Estella was present in court when the orders were made and thus could not claim ignorance of the time limitation. The court also noted that the appeal grounds lacked merit and did not disclose any errors warranting an appeal. The court referred to House v The King (1936) 55 CLR 499 and Gallo v Dawson (1990) 93 ALR 479, which outline the principles governing leave to appeal out of time and the need for the appeal to have merit. Given the lack of merit in the appeal, the court concluded that leave would not have been granted even if the application had been timely.

The court then considered the respondent's application for costs. Ms Morena, who is in receipt of a grant of legal aid, applied for costs to be paid by Mr Estella. The court noted that the application was entirely without merit and that the public purse had been put to unnecessary expense in responding to it. The court ordered Mr Estella to pay the respondent's costs, which totaled $2,593, including the reserved costs from 23 April 2014. The court rejected the father's argument that he had no capacity to meet the costs order, noting that the financial circumstances of the parties were not determinative in this context. Instead, the court emphasised the unmeritorious nature of the application and the consequent waste of court resources.

Orders