Gazal and Belros (No 3) - [2014] FamCAFC 198

FAMILY COURT OF AUSTRALIA

GAZAL & BELROS (NO. 3)

[2014] FamCAFC 198

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the applicant failed to file documents in accordance with orders previously made namely, an amended application, affidavit in support and draft Notice of Appeal – where the result of that non-compliance was that the application in an appeal was dismissed pursuant to a self-executing order – where the fresh application is opposed – where the application dismissed was not dismissed on its merits and thus a fresh application can be pursued again – applicability of Rule 11.03 of the Family Law Rules 2004 (Cth) – where the interests of justice can only be served by allowing the fresh application for an extension of time to proceed – where there is an adequate explanation for the failure to file a Notice of Appeal within time – where there is an arguable case on appeal – where the interests of justice require that the application be granted – time to file a Notice of Appeal extended.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks her costs regardless of the result in the sum of $1,400 – where the applicant conceded that in the circumstances of the application an order for costs could not be opposed – where the applicant asks for six months to pay – where six months to pay is entirely inappropriate in the circumstances – costs ordered as sought by the respondent to be paid by 30 January 2015.

Family Law Act 1975 (Cth) – s 94AAA

Family Law Rules 2004 (Cth) – rr 11.03, 11.03(3), 22.02, 22.03, 22.11 and Chapter 22

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Gazal

RESPONDENT:

Ms Belros

FILE NUMBER:

MLC

10089

2010

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

13 October 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

10 September 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

22 August 2013

LOWER COURT MNC:

[2013] FCCA 1268

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Levine
SOLICITOR FOR THE APPLICANT:	Allan McMonnies
COUNSEL FOR THE RESPONDENT:	Mr McConchie

SOLICITOR FOR THE RESPONDENT:

Buller McLeod Pty

Orders

The application in an appeal filed on 29 August 2014 be permitted to be heard and determined by this Court.
The amended Notice of Appeal filed on 14 July 2014 be uplifted and returned to the applicant.
The time for the applicant to file and serve a Notice of Appeal be extended to the close of business on 20 October 2014.
The applicant father pay the costs of the respondent mother of and incidental to the application in an appeal fixed in the sum of $1,400, such costs to be paid on or before the close of business on 30 January 2015.

IT IS NOTED that publication of…

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 198
Decision Date: 13 October 2014

CaseChat Overview and Summary

The matter before the Family Court of Australia involved an application for an extension of time in the context of an appeal. The applicant, seeking to appeal a Family Court decision, failed to adhere to previous orders requiring the filing of an amended application, affidavit in support, and a draft Notice of Appeal. Consequently, the application in the appeal was dismissed. The applicant now sought a fresh application for an extension of time, which was opposed by the respondent. The central legal issue was whether the fresh application should be allowed to proceed, given that the initial dismissal was not based on the merits of the appeal. The court considered the applicability of Rule 11.03 of the Family Law Rules 2004 (Cth), and whether the interests of justice mandated the granting of the extension.

The court found that the initial dismissal was not on the merits and thus a fresh application was permissible. The applicant had provided an adequate explanation for the failure to file the Notice of Appeal within the prescribed time and had demonstrated an arguable case on appeal. The interests of justice required the fresh application to proceed, and accordingly, the application for an extension of time was granted. The court extended the time for the applicant to file and serve a Notice of Appeal and ordered that the previously filed amended Notice of Appeal be uplifted and returned to the applicant. In addition to allowing the fresh application, the court addressed the issue of costs. The respondent sought her costs regardless of the result in the sum of $1,400, a figure the applicant conceded could not be opposed in the circumstances. The applicant requested six months to pay the costs, but the court found this request to be entirely inappropriate and ordered that the costs be paid by 30 January 2015.

Orders

Orders of the court

The application in an appeal filed on 29 August 2014 be permitted to be heard and determined by this Court.

The amended Notice of Appeal filed on 14 July 2014 be uplifted and returned to the applicant.

The time for the applicant to file and serve a Notice of Appeal be extended to the close of business on 20 October 2014.

The applicant father pay the costs of the respondent mother of and incidental to the application in an appeal fixed in the sum of $1,400, such costs to be paid on or before the close of business on 30 January 2015.

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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