GAZAL & BELROS - [2014] FamCAFC 81

FAMILY COURT OF AUSTRALIA

GAZAL & BELROS

[2014] FamCAFC 81

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks to extend the time in which to file an appeal – where the application is opposed – where the applicant seeks an adjournment to file better prepared documents – where there are reasons why the application should be granted namely, the applicant is self represented and English is his second language – application adjourned.

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

Family Law Act 1975 (Cth) – s 117

Family Law Rules 2004 (Cth)

APPLICANT:

Mr Gazal

RESPONDENT:

Ms Belros

FILE NUMBER:

MLC

10089

2010

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

8 May 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

8 May 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 applicant father file and serve on or before the close of business on Friday 6 June 2014 such amended application and supporting documents as he may deem fit.
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 8 July 2014 with a time estimate of two [2] hours.
The applicant father pay to the respondent mother the sum of TWO THOUSAND DOLLARS [$2,000] by way of costs thrown away such costs to be paid in the manner following:
(a)The sum of FOUR HUNDRED DOLLARS [$400] on or before the close of business on Friday 4 July 2014; and
(b)The balance of the said sum of TWO THOUSAND DOLLARS [$2,000] on or before the close of business on Friday 7 November 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

Introduction

This is an application in an appeal filed by Mr Gazal (“the applicant”) on

10 February 2014.
In that application he in effect seeks an extension of time to file a Notice of Appeal…

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 81
Decision Date

CaseChat Overview and Summary

This case involved an application by Mr. Gazal to extend the time in which to file an appeal against orders made by Judge Burchardt on 22 August 2013. Mr. Gazal failed to comply with the 28-day time period for filing a Notice of Appeal as per the Family Law Rules 2004 (Cth). He sought an adjournment to better prepare his documents, which was opposed by Ms. Belros, represented by Mr. McConchie. The applicant argued that he did not receive a copy of the reasons for judgment and the order until two months after they were pronounced in court, and oral reasons delivered. However, the court found that this was not a satisfactory explanation for the failure to file within the 28-day time period.

The court considered the merits of the appeal, which was based on a draft Notice of Appeal. However, the draft Notice of Appeal did not contain any proper grounds of appeal, and there was no identifiable error of fact or law alleged to have been made by the trial judge. The court indicated that if the draft Notice of Appeal was before a Full Court at that point, it would be dismissed. The applicant then made a further application to adjourn these proceedings to better prepare his documents, both in terms of the affidavit material, and in terms of the draft Notice of Appeal on which he intends to rely.

The court granted the adjournment on conditions, giving the applicant four weeks to file his amended documents, but made an order that if he failed to comply with that order, the application before the court would be dismissed. If the applicant did file his amended documents, the matter would be listed for further hearing in July 2014. Mr. McConchie made an application for the applicant to pay the costs of his client thrown away, which the court considered justified due to the applicant's application to adjourn part-way through a hearing, a hearing in respect of which the respondent had incurred significant legal costs which would not otherwise be able to be recovered. The court ordered the applicant to pay the costs by instalments, with part of the total amount of $2,000 to be paid by the time of the proposed resumption of the hearing in July 2014, and the balance within six months of the judgment.

Orders