Hymer and Bardley - [2020] FamCAFC 220

FAMILY COURT OF AUSTRALIA

HYMER & BARDLEY

[2020] FamCAFC 220

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the applicant provides no satisfactory explanation for the failure to file a Notice of Appeal within time or the delay in bringing this Application – Where the proposed appeal has no prospects of success – Where it is beyond doubt that the interests of justice demand that the application for an extension of time be dismissed – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPLICANT:

Mr Hymer

RESPONDENT:

Ms Bardley

FILE NUMBER:

PTW

6061

2012

APPEAL NUMBER:

WEA

11L

2020

DATE DELIVERED:

25 August 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

25 August 2020

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

28 May 2019

LOWER COURT MNC:

[2019] FCWAM 77

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR ADVOCATE FOR THE

RESPONDENT:

Ms Thomson

SOLICITOR FOR THE RESPONDENT:

Sue Thomson Solicitors

Orders

The Application in an Appeal filed on 24 June 2020 be dismissed.
There be no order as to costs.

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 Hymer & Bardley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Number: WEA 11L of 2020
File Number: PTW 6061 of 2012

Mr Hymer

Applicant

And

Ms Bardley

Respondent

EX TEMPORE REASONS FOR JUDGMEN

Before the court today is an Application in an Appeal filed by Mr Hymer (“the father”) on 24 June 2020. There are a number of orders sought in that application, but as the father knows, the application was only accepted by the registry of the court in relation to the first order sought. That is an order, in effect, for an extension of time to file a Notice of Appeal against orders made by Magistrate Glass on 28 May 2019. None of the other orders sought in the application are orders that can be made on such an application.
In support of the Application in an Appeal the father has filed an affidavit, also on 24 June 2020, and as is required, he has provided to the court a Notice of Appeal which is the Notice that he would wish to proceed on, in the event that he is successful in obtaining an extension of time.
Ms Bardley (“the mother”) filed a Response to the Application…

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 Hymer and Bardley

Details

AGLC: Hymer and Bardley [2020] FamCAFC 220
Case: [2020] FamCAFC 220
Decision Date: 25 August 2020

CaseChat Overview and Summary

Hymer and Bardley was a case heard by the Federal Court of Australia. The case involved a dispute between Hymer and Bardley, two parties who were in disagreement over certain matters. The exact nature of their dispute is not specified in the text, but it was serious enough to warrant an appeal to the Federal Court.

The legal issues the court was required to decide were related to the appeal filed by one of the parties. The specifics of these issues are not detailed, but they pertained to the initial decision made by a lower court that was now being challenged. The court had to consider whether the appeal had merit and if the decision of the lower court should be upheld or overturned.

The court's reasoning and outcome focused on the merits of the appeal. After considering the arguments and evidence presented, the court found that the appeal was without merit. Consequently, the court dismissed the appeal and upheld the decision of the lower court. There was no order as to costs, indicating that neither party was required to pay the other’s legal expenses. The form of the order was subject to being recorded in the Court's official records.

Orders

Orders of the court

The Application in an Appeal filed on 24 June 2020 be dismissed.

There be no order as to costs.

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

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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