Harold & Raymond - [2021] FamCAFC 104

FAMILY COURT OF AUSTRALIA
Harold & Raymond [2021] FamCAFC 104

Appeal from: Harold & Raymond [2021] FCCA 644

Appeal number(s): SOA 23 of 2021

File number(s): MLC 2003 of 2021

Judgment of: STRICKLAND J

Date of judgment: 2 July 2021

Catchwords: FAMILY LAW – APPEAL –Extension of time – Where the applicant seeks to extend the time in which to file a Notice of Appeal – Where a delay of several hours in seeking to file Notice of Appeal not a circumstance that should prevent the application being granted – Where a ground of appeal arguable – Where clear prejudice to the applicant if the appeal is not allowed to proceed – Application granted.

Legislation:
Family Law Act 1975 (Cth) s 66L

Family Law Rules 2004 (Cth) r 22.03

Cases cited: Gallo v Dawson (1990) 93 ALR 479

Division: Appeal Division

Number of paragraphs: 21

Date of hearing: 25 June 2021

Place: Adelaide (via Microsoft Teams link to Melbourne)

The Applicant: Litigant in person

The Respondent: Litigant in person
ORDERS

SOA 23 of 2021
MLC 2003 of 2021

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:
MS HAROLD

Applicant

AND:
MS RAYMOND

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

2 JULY 2021

THE COURT ORDERS THAT:
1.The time for the applicant mother to file and serve a Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal from orders made by a Judge of the Federal Circuit Court of Australia on 22 March 2021 be extended to the close of business on Friday, 16 July 2021.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harold & Raymond has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND J
INTRODUCTION

On 23 April 2021, Ms Harold (“the mother”) filed an Application in an Appeal seeking an extension of time to file a Notice of Appeal seeking leave to appeal and if leave is granted to appeal against orders made by a Judge of the Federal Circuit Court of Australia on 22 March 2021.
The Application is opposed by Mr Raymond (“the father”).
The orders sought to be appealed are orders made pursuant to s 66L of the Family Law Act 1975 (Cth) (“the Act”) providing for the father to pay adult child maintenance for Mr B born in November 2002 (“the adult child”).
The Application in an Appeal is supported by an affidavit of the mother also filed on 23 April 2021 together with a Draft Notice of Appeal, being the Notice of Appeal that…

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 Harold & Raymond

Details

AGLC: Harold & Raymond [2021] FamCAFC 104
Case: [2021] FamCAFC 104
Decision Date: 2 July 2021

CaseChat Overview and Summary

Ms Harold, the mother, sought an extension of time to file a Notice of Appeal against orders made by a Judge of the Federal Circuit Court of Australia on 22 March 2021. Ms Raymond, the respondent, opposed the application. The matter was heard in the Appeal Division of the Family Court of Australia. The primary legal issues before the court were whether the delay in seeking to file the Notice of Appeal was such that it should prevent the application from being granted and whether there was an arguable case on appeal. The court also considered the potential prejudice to the mother if the appeal was not allowed to proceed.

Strickland J found that the delay of several hours in seeking to file the Notice of Appeal was not a circumstance that should prevent the application from being granted. The court also found that there was an arguable case on appeal and that there would be clear prejudice to the mother if the appeal was not allowed to proceed. The court noted that if the application was refused, the mother would not be able to pursue an appeal, and there was no appeal from a refusal to grant an application such as this. The court held that the interests of justice required that the application be granted.

The court ordered that the time for the applicant mother to file and serve a Notice of Appeal be extended to the close of business on Friday, 16 July 2021. The form of the order was subject to entry in the court's records, and the reasons for judgment could be subject to review to remedy minor errors or to record a variation to the order.

Orders

Orders of the court

SOA 23 of 2021

MLC 2003 of 2021

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS HAROLD

Applicant

AND:

MS RAYMOND

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

2 JULY 2021

THE COURT ORDERS THAT:

1. The time for the applicant mother to file and serve a Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal from orders made by a Judge of the Federal Circuit Court of Australia on 22 March 2021 be extended to the close of business on Friday, 16 July 2021.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the other hand, if the Application is refused, then the mother would not be able to pursue an appeal, and significantly there is no appeal from a refusal to grant an Application such as this. There is, of course, the ability to apply for special leave to appeal to the High Court of Australia, however that is a difficult exercise and may not be warranted in this case. In any event, this is a clear prejudice to the mother if the Application is refused.CONCLUSION As the authorities recognise, consideration of the relevant factors informs the Court in determining the fundamental issue, namely where the justice of the case lies. Here, I have found that the failure to file a Notice of Appeal within time should not prevent the Application being successful. Importantly, I have found that there is an arguable case on appeal, and there will be clear prejudice to the mother if the appeal is not allowed to proceed. Accordingly, the interests of justice require that the Application be granted.

Ratio Decidendi

Legal Principle Established

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Appeal from:	Harold & Raymond [2021] FCCA 644
Appeal number(s):	SOA 23 of 2021
File number(s):	MLC 2003 of 2021
Judgment of:	STRICKLAND J
Date of judgment:	2 July 2021
Catchwords:	FAMILY LAW – APPEAL –Extension of time – Where the applicant seeks to extend the time in which to file a Notice of Appeal – Where a delay of several hours in seeking to file Notice of Appeal not a circumstance that should prevent the application being granted – Where a ground of appeal arguable – Where clear prejudice to the applicant if the appeal is not allowed to proceed – Application granted.
Legislation:	Family Law Act 1975 (Cth) s 66L Family Law Rules 2004 (Cth) r 22.03
Cases cited:	Gallo v Dawson (1990) 93 ALR 479
Division:	Appeal Division
Number of paragraphs:	21
Date of hearing:	25 June 2021
Place:	Adelaide (via Microsoft Teams link to Melbourne)
The Applicant:	Litigant in person
The Respondent:	Litigant in person

SOA 23 of 2021 MLC 2003 of 2021
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	MS HAROLD Applicant
AND:	MS RAYMOND Respondent

ORDER MADE BY:	STRICKLAND J
DATE OF ORDER:	2 JULY 2021