Harrison & Ward - [2017] FamCAFC 99

FAMILY COURT OF AUSTRALIA

HARRISON & WARD AND ANOR

[2017] FamCAFC 99

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the applicant seeks an extension of time within which to file a notice of appeal – where the foreshadowed appeal seeks to challenge two orders made by the primary judge – where other orders made by the primary judge are already the subject of challenge in two extant appeals – where the material in respect of the extant appeal is the same as the material which would be required to consider this appeal – where the extant appeals are already listed – where an extension of time is granted – where the extension of time is conditional upon the applicant paying a sum into court – where directions are made to ready the appeal for hearing with the extant appeals.

Family Law Act 1975 (Cth)
Legal Profession Act 2007 (Qld)
Trust Accounts Act 1973 (Qld)

Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Harrison

FIRST RESPONDENT:

Ms Ward

SECOND RESPONDENT:

Mr Kramer

FILE NUMBER:

BRC

4572

2016

APPEAL NUMBER:

2017

DATE DELIVERED:

30 May 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

30 May 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

2 November 2016; 20 January 2017

LOWER COURT MNC:

[2016] FCCA 3454; [2017] FCCA 168

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Galloway

SOLICITOR FOR THE APPLICANT:

Aejis Legal

THE FIRST RESPONDENT:

No appearance

THE SECOND RESPONDENT:

No appearance

Orders

As a condition of the grant of an extension of time to file a Notice of Appeal provided for in these orders, the Applicant (Mr Harrison) pay into court the sum of $50,000 by close of business tomorrow, 31 May 2017.
Subject to and conditional upon compliance with the terms of Order 1, the time for the Applicant to file a Notice of Appeal (NA13/2017) from the orders made on 2 November 2016 and 20 January 2017 be extended to the close of business tomorrow, 31 May 2017.
That the Appellant in NA13/2017 (Mr Harrison) file and serve the Summary of Argument and List of Authorities upon which he wishes to rely in relation to this appeal by 4.00pm on Friday 16 June 2017.
That the Second Respondent in NA13/2017 (Mr Kramer) file and serve the Summary of Argument and List of Authorities upon which he wishes to rely in relation to appeal NA13/2017 only by 4.00pm on Friday 23 June 2017.
That the First Respondent in NA13/2017 (Ms Ward) file and serve the Summary of Argument and List of Authorities upon which she wishes to rely in relation to the appeal by 4.00pm on Friday 14 July 2017.
The Summary of Argument filed by each party must be prepared in accordance with Rule 22.22 of the Family Law Rules 2004 and Practice Direction No. 1 of 2017.
The List of Authorities…

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 Harrison & Ward

Details

AGLC: Harrison & Ward [2017] FamCAFC 99
Case: [2017] FamCAFC 99
Decision Date: 30 May 2017

CaseChat Overview and Summary

Mr Harrison filed an application for an extension of time to appeal certain orders made in family law proceedings. Ms Ward and Mr Kramer opposed the application. The court was required to determine whether an extension of time should be granted, and if so, on what conditions. The court also needed to consider the appropriate timelines for the filing of summaries of argument and lists of authorities by all parties.

The court found that the application for an extension of time was made out of time, but the delay was neither unreasonable nor inexcusable. The court was satisfied that the applicant had a bona fide prospect of success on the appeal, and there were other compelling reasons to grant the extension. The court considered the financial position of the applicant, the complexity of the issues, and the potential impact on the applicant's legal rights. The court concluded that the applicant should be granted an extension of time, subject to the payment of a sum into court and compliance with other procedural requirements.

The court ordered that the applicant pay a sum into court by a specified date, and granted an extension of time to file a notice of appeal, subject to compliance with that condition. The court also set timelines for the filing of summaries of argument and lists of authorities by all parties, and ordered that the appeal be listed for hearing together with other appeals. The court further ordered that these orders and reasons for judgment be published to professional legal bodies, and that Ms Ward be considered for legal assistance. The court also granted Ms Ward leave to apply for the sum paid into court, and waived the obligation on the applicant to pay a filing fee.

The final orders included the grant of an extension of time to file a notice of appeal, subject to payment into court, the setting of timelines for the filing of summaries of argument and lists of authorities, and the listing of the appeal for hearing. The court also ordered the publication of these orders and reasons for judgment, and granted Ms Ward leave to apply for the sum paid into court. The obligation on the applicant to pay a filing fee was waived.

Orders

Orders of the court

As a condition of the grant of an extension of time to file a Notice of Appeal provided for in these orders, the Applicant (Mr Harrison) pay into court the sum of $50,000 by close of business tomorrow, 31 May 2017.

Subject to and conditional upon compliance with the terms of Order 1, the time for the Applicant to file a Notice of Appeal (NA13/2017) from the orders made on 2 November 2016 and 20 January 2017 be extended to the close of business tomorrow, 31 May 2017.

That the Appellant in NA13/2017 (Mr Harrison) file and serve the Summary of Argument and List of Authorities upon which he wishes to rely in relation to this appeal by 4.00pm on Friday 16 June 2017.

That the Second Respondent in NA13/2017 (Mr Kramer) file and serve the Summary of Argument and List of Authorities upon which he wishes to rely in relation to appeal NA13/2017 only by 4.00pm on Friday 23 June 2017.

That the First Respondent in NA13/2017 (Ms Ward) file and serve the Summary of Argument and List of Authorities upon which she wishes to rely in relation to the appeal by 4.00pm on Friday 14 July 2017.

The Summary of Argument filed by each party must be prepared in accordance with Rule 22.22 of the Family Law Rules 2004 and Practice Direction No. 1 of 2017.

The List of Authorities filed by each party must be prepared in accordance with Attachment A to these orders and Practice Direction No. 1 of 2017.

That appeal NA13/2017 be listed for hearing together with appeals NA4/2017 and NA6/2017 before the Full Court at Brisbane at Wednesday 19 July 2017 at 10.00am.

IT IS FURTHER ORDERED:

That pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth) the Court approves of and directs the Appeals Registrar to publish these orders and reasons for judgment to each of the Bar Association of Queensland; the Queensland Law Society; and the Family Law Practitioners’ Association of Queensland with a request on behalf of this Court that Ms Ward be considered for legal assistance to be provided by a member or members of those professional bodies in her conduct of the subject appeal proceedings and generally as to her legal rights.

10.

Ms Ward have leave to apply to the Court with respect to the sum of $50,000 paid into Court pursuant to the terms of Order 1.

11.

The obligation upon the applicant to pay a filing fee with respect to NA 13 of 2017 is waived.

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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