HALFORD & HALFORD - [2019] FamCAFC 43

FAMILY COURT OF AUSTRALIA

HALFORD & HALFORD

[2019] FamCAFC 43

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the matter was listed for trial in August 2018 – Where a trial judge rejected the husband’s application for an adjournment made via email the day prior to the hearing on the basis that he was unwell and proceeded on an undefended basis – Where a trial judge made final orders for property settlement and lump sum spousal maintenance – Where the husband filed an Application in a Case seeking those orders be set aside – Where another trial judge set the orders aside and listed the matter for another trial – Where the wife attempted to file a Notice of Appeal but was rejected for being out of time – Where the wife filed an application for extension of time four weeks after the time for filing the appeal had expired – Where it is difficult to discern what the judge found to be the specific material arguments available to the husband which were said could lead to the making of different orders – Where the judge did not identify any argument made by the husband in respect of the wife’s lump sum spousal maintenance claim – Where there are reasonable issues to be raised on appeal – Where the wife’s delay in filing the application was not inordinate – Application allowed.

Family Law Act 1975 (Cth) ss 94AAA(5), 117(2)

Family Law Rules 2004 (Cth) rr 1.14, 17.01, 22.03
Federal Circuit Court Rules 2001 (Cth) r 16.05

Clifford & Mountford [2006] FMCAfam 450
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Malak & Malak (2016) FLC 93-718; [2016] FamCAFC 114
Molloy & Molloy (2016) FLC 93-754; [2016] FamCAFC 264
Pendleton & Pendleton [2018] FamCAFC 203
Tormsen and Tormsen (1993) FLC 92-392; [1993] FamCA 151

APPLICANT:

Ms Halford

RESPONDENT:	Mr Halford
FILE NUMBER:	BRC	11853	of	2017

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

13 March 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

8 March 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 December 2018

LOWER COURT MNC:

[2018] FCCA 3823

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Cooper, Cooper Family Law

COUNSEL FOR THE RESPONDENT:

Mr Hartwell (Direct brief)

IT IS ORDERED:

The time for filing a Notice of Appeal from the orders made by Judge L Turner in the Federal Circuit Court of Australia on 11 December 2018 be extended until 4.00pm on Friday 22 March 2019.
The costs of and incidental to the wife’s Application in an Appeal filed 4 February 2019 be reserved to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Halford & Halford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975

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 HALFORD & HALFORD

Details

AGLC: HALFORD & HALFORD [2019] FamCAFC 43
Case: [2019] FamCAFC 43
Decision Date: 13 March 2019

CaseChat Overview and Summary

The applicant, Ms Halford, sought an extension of time to appeal orders made by the Federal Circuit Court of Australia (FCCA) which set aside earlier orders made by a different judge in the same court. The orders in question involved a property settlement and lump sum spousal maintenance. The appeal was initially attempted to be filed out of time, and the application to extend time was filed about four weeks after the original appeal period had expired. The primary issue for the Family Court of Australia was whether the application for an extension of time should be granted.

The court considered the principles governing extensions of time for filing appeals, emphasizing the need to balance the injustice to the respondent if the appeal is allowed against the injustice to the applicant if the appeal is not allowed. The court also assessed whether there were substantial issues to be raised on appeal and whether the delay in filing the application could be satisfactorily explained. The wife argued that the judge who set aside the original orders made several errors, including failing to identify specific arguments made by the husband that could have led to different orders being made. The court found that there were reasonable issues to be raised on appeal regarding the judge's reasoning, particularly in identifying the husband's arguments and considering certain factors such as the wife's student debt and inheritances.

The wife's explanation for the delay in filing the application was based on the late receipt of the reasons for judgment, the holiday period, and a mistaken belief that the initial appeal was not out of time. The court held that the delay was not inordinate and did not necessarily prejudice the husband, as no specific prejudice was claimed. The court concluded that an extension of time was necessary to do justice between the parties.

The court granted the application for an extension of time, allowing the wife to file her appeal. The costs of the application were reserved to the appeal.

Orders