Gazal and Belros (No 2) - [2014] FamCAFC 190

FAMILY COURT OF AUSTRALIA

GAZAL & BELROS (NO. 2)

[2014] FamCAFC 190

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks a further adjournment to file amended documents seeking an order extending the time in which to file an appeal – where the application is opposed – application granted – self-executing order made.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks her costs thrown away – where the applicant seeks to pay the sum sought in instalments – where there are circumstances which justify such an order – costs ordered as sought by the respondent.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Gazal

RESPONDENT:

Ms Belros

FILE NUMBER:

MLC

10089

2010

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

8 July 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

8 July 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

22 August 2013

LOWER COURT MNC:

[2013] FCCA 1268

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Mr McConchie

SOLICITOR FOR THE RESPONDENT:

Buller McLeod Pty

Orders

The time for the applicant father to file and serve an amended application and supporting documents be extended to the close of business on Monday 14 July 2014.
In the event that the applicant father fails to file his amended documents in accordance with paragraph 1 hereof the application in an appeal filed on

10 February 2014 be dismissed.
In the event that the applicant father does file his amended documents in accordance with paragraph 1 hereof that amended application be listed for hearing before the Honourable Justice Strickland in Melbourne commencing at 10:00am on Tuesday 9 September 2014 with a time estimate of two [2] hours.
The applicant father pay to the respondent mother the sum of FIVE HUNDRED AND FIFTY DOLLARS [$550] by way of costs thrown away today such costs to be paid on or before the close of business on 15 December 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gazal & Belros 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 MELBOURNE

Appeal Number: SOA 8 of 2014
File Number: MLC 10089 of 2010

Mr Gazal

Applicant

And

Ms Belros

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is an application in an appeal filed on 6 June 2014 by Mr Gazal (“the applicant”). There is a brief affidavit in support of that application also filed on the same date.
The background of that application is that on 10 February 2014 the applicant filed an application in an appeal seeking an extension of time to appeal against orders made by Judge Burchardt on 22 August 2013. In support of that application there was an affidavit filed, and a draft Notice of Appeal. That application came before…

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

Case: [2014] FamCAFC 190
Decision Date: 8 July 2014

CaseChat Overview and Summary

The case of Gazal and Belros (No 2) involved a father appealing a family law decision, seeking an adjournment to file amended documents. The application was opposed by the mother, who also sought her costs thrown away. The court had to decide whether to grant the father's application for an adjournment and, if so, under what conditions. Additionally, the court needed to determine the appropriate costs order.

The court granted the father's application for an adjournment, making a self-executing order to extend the time for filing and serving amended documents. The court outlined that if the father did not file the amended documents by the specified date, the appeal would be dismissed. If the documents were filed on time, the amended application would be listed for a hearing. The mother's application for her costs to be thrown away was also granted, with the father ordered to pay the costs in instalments, reflecting the circumstances justifying the order.

The court's reasoning was based on the need to balance the interests of both parties and the importance of timely proceedings. By extending the time for the father to file his documents, the court aimed to ensure that the appeal process was not unnecessarily delayed, while also protecting the mother's right to have the matter resolved in a timely manner. The costs order was justified by the circumstances, which led to the mother incurring additional expenses.

The final orders included extending the time for the father to file amended documents, dismissing the appeal if the documents were not filed on time, listing the amended application for a hearing if the documents were filed on time, and ordering the father to pay the mother's costs in instalments.

Orders

Orders of the court

The time for the applicant father to file and serve an amended application and supporting documents be extended to the close of business on Monday 14 July 2014.

In the event that the applicant father fails to file his amended documents in accordance with paragraph 1 hereof the application in an appeal filed on

10 February 2014 be dismissed.

In the event that the applicant father does file his amended documents in accordance with paragraph 1 hereof that amended application be listed for hearing before the Honourable Justice Strickland in Melbourne commencing at 10:00am on Tuesday 9 September 2014 with a time estimate of two [2] hours.

The applicant father pay to the respondent mother the sum of FIVE HUNDRED AND FIFTY DOLLARS [$550] by way of costs thrown away today such costs to be paid on or before the close of business on 15 December 2014.

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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