Forster and Forster - [2010] FamCAFC 205

FAMILY COURT OF AUSTRALIA

FORSTER & FORSTER

[2010] FamCAFC 205

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for an extension of time to file a Notice of Appeal – where the Federal Magistrate appointed a litigation guardian for the husband – where the husband only has standing to proceed with his application in relation to orders appointing the litigation guardian – where there is no adequate reason explaining the delay – where there is a substantial issue to be raised on appeal in relation to the circumstances surrounding the Federal Magistrate’s appointment of the litigation guardian – where there is no expert evidence before the Court as to the husband’s mental state – where it is necessary to grant an extension of time to enable the Court to do justice between the parties – extension of time granted.

Family Law Act 1975 (Cth) s 94AAA(12)

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392
Willshire & Willshire [2009] FamCAFC 130

APPLICANT:

Mr Forster

RESPONDENT:

Ms Forster

LITIGATION GUARDIAN OF THE APPLICANT:

Public Trustee

FILE NUMBER:

ADC

3359

2007

APPEAL NUMBER:	SA	44	of	2010
SA	46	of	2010

DATE DELIVERED:

24 September 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

22 and 24 September 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 October 2008,
19 December 2008 &
16 March 2009

LOWER COURT MNC:

[2008] FMCAfam 1075

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mrs West and Ms Hicks

SOLICITOR FOR THE RESPONDENT:

Catherine Hicks & Co Lawyers

COUNSEL FOR THE LITIGATION GUARDIAN:

Ms Dickson

SOLICITOR FOR THE RESPONDENT:

Crown Solicitor’s Office

Orders

APPEAL NUMBER SA 44 of 2010

That the time for the filing of a Notice of Appeal against the orders made by Federal Magistrate Lindsay on 8 October 2008, 19 December 2008 and 16 March 2009, being an order appointing the Public Trustee as the litigation guardian for the husband, be extended to close of business on Monday 25 October 2010.
That paragraphs 2 and 3 of the orders sought in the Amended Application in an Appeal filed on 27 July 2010 be dismissed.
That the balance of the Amended Application in an Appeal filed on 27 July 2010 be adjourned to a date to be fixed following the delivery of judgment by the Full Court in relation to the Notice of Appeal referred to in paragraph 1 hereof.
That the application for costs made by the wife be listed for hearing commencing at 10:00am on Monday 1 November 2010.

APPEAL NUMBER SA 46 of 2010

That the Notice of Appeal filed on 14 July 2010 and the Application in an Appeal filed on 10 August 2010 be adjourned to a date to be fixed following the delivery of judgment by the Full Court in relation to a Notice of Appeal to be filed by the husband on or…

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.

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Details

AGLC: Forster and Forster [2010] FamCAFC 205
Case: [2010] FamCAFC 205
Decision Date: 24 September 2010

CaseChat Overview and Summary

The appeal before the court involved two related parties, the husband and wife, with a dispute regarding the orders made by Federal Magistrate Lindsay on three separate dates, which appointed the Public Trustee as the litigation guardian for the husband. The wife filed an application for an extension of time to appeal these orders and also sought other relief, which the husband opposed. The court was required to decide whether to grant the wife's application for an extension of time and other relief, as well as the husband's application for an adjournment of the wife's appeal and for costs.

The court considered the legal principles applicable to the extension of time for appeals and the circumstances in which such an extension should be granted. The court also assessed the merits of the wife's other relief sought and the husband's application for an adjournment and for costs. Ultimately, the court found that the wife's application for an extension of time was valid and should be granted, but her other relief should be dismissed. The husband's application for an adjournment and for costs was also to be adjourned pending the outcome of the wife's appeal.

The court ordered that the time for the wife to file a Notice of Appeal against the orders made by Federal Magistrate Lindsay be extended to a specified date. The court also dismissed paragraphs 2 and 3 of the wife's Amended Application in an Appeal and adjourned the balance of the application pending the outcome of the wife's appeal. The court further ordered that the husband's application for an adjournment and for costs be adjourned pending the outcome of the wife's appeal. Lastly, the court listed the wife's application for costs for hearing on a specified date.

The orders of the court provided clarity on the procedural aspects of the appeal and ensured that the parties' applications would be considered in the appropriate sequence, with the outcome of the wife's appeal being determined first. The court's decision balanced the need for a timely resolution of the dispute with the importance of ensuring that all relevant applications were heard and determined in a fair and orderly manner.

Orders

Orders of the court

APPEAL NUMBER SA 44 of 2010

That the time for the filing of a Notice of Appeal against the orders made by Federal Magistrate Lindsay on 8 October 2008, 19 December 2008 and 16 March 2009, being an order appointing the Public Trustee as the litigation guardian for the husband, be extended to close of business on Monday 25 October 2010.

That paragraphs 2 and 3 of the orders sought in the Amended Application in an Appeal filed on 27 July 2010 be dismissed.

That the balance of the Amended Application in an Appeal filed on 27 July 2010 be adjourned to a date to be fixed following the delivery of judgment by the Full Court in relation to the Notice of Appeal referred to in paragraph 1 hereof.

That the application for costs made by the wife be listed for hearing commencing at 10:00am on Monday 1 November 2010.

APPEAL NUMBER SA 46 of 2010

That the Notice of Appeal filed on 14 July 2010 and the Application in an Appeal filed on 10 August 2010 be adjourned to a date to be fixed following the delivery of judgment by the Full Court in relation to a Notice of Appeal to be filed by the husband on or before 25 October 2010 in Appeal Number SA 44 of 2010.

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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