Ibbott & Ibbott and Anor - [2008] FamCAFC 104

FAMILY COURT OF AUSTRALIA

IBBOTT & IBBOTT AND ANOR

[2008] FamCAFC 104

FAMILY LAW - APPLICATION –Application to extend time to file a Notice of Appeal – Notice of Appeal received by registry within time – sent back to wife for amendment out of time – consideration of principles to grant extension of time – efforts made to pursue an appeal within time - should not allow a deficiency in a form to stand in the way of justice being done between the parties.

FAMILY LAW - COSTS – respondent seeking costs – order for costs to respondent.

Family Law Act 1975 (Cth) s 117

McMahon & McMahon (1976) FLC 90-128
Tormsen & Tormsend (1993) FLC 92-392
Gallo & Dawson (1990) 93 ALR 479

APPLICANT:

Ms IBBOTT

FIRST RESPONDENT:

Mr IBBOTT

SECOND RESPONDENT

S PTY LTD (IN LIQUIDATION)

FILE NUMBER:

ADC

1372

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

24 April 2008

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

24 April 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 February 2008

LOWER COURT MNC:

[2007] FMCAfam 38

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cameron

SOLICITOR FOR THE APPLICANT:

Townsends

FIRST RESPONDENT:

No Appearance

COUNSEL FOR THE SECOND

RESPONDENT:

Mr Thomas

SOLICITOR FOR THE SECOND

RESPONDENT

Piper Alderman

Orders

That the time for the applicant to file a Notice of Appeal against the orders made by Federal Magistrate Brown on 11 February 2008 be extended to 4:00pm on 8 May 2008.
That within fourteen [14] days of the date hereof the applicant pay to the respondent’s solicitors on behalf of the respondent S Pty Ltd (in liquidation) the sum of FIVE HUNDRED DOLLARS [$500.00] by way of costs.
That the Application in a Case filed by the wife on 27 March 2008 be dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Ibbott & Ibbott and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1372 of 2007
APPEAL NUMBER: SA 17 of 2008

Ms IBBOTT

Applicant

And

Mr IBBOTT

1^st Respondent

And

S PTY LTD (IN LIQUIDATION)
2^nd Respondent

EX TEMPORE REASONS

I have before me an Application in a Case filed by the wife on 27 March 2008 seeking an extension of time in which to file an appeal against the decision of Federal Magistrate Brown made on 11 February 2008. That application is supported by an affidavit from the wife's solicitors.
I need to dwell for a moment on the history of this matter.
The substantive proceedings came before Federal Magistrate Brown and were heard on 30 November and 4 December 2007, and his Honour delivered his reasons for judgment on 11 February 2008 and made orders at that time.
The parties to these proceedings were the husband and the wife and a company by the name of S Pty Ltd (in…

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

AGLC: Ibbott & Ibbott and Anor [2008] FamCAFC 104
Case: [2008] FamCAFC 104
Decision Date: 24 April 2008

CaseChat Overview and Summary

Ibbott & Ibbott and Anor involved an application to extend the time to file a Notice of Appeal, which was heard in the Family Court of Australia. The applicants sought an extension of time to file a Notice of Appeal against certain orders made by Federal Magistrate Brown on 11 February 2008. The Notice of Appeal was received by the registry within the prescribed time, but it was returned to the wife for amendment after the time had expired. The wife was required to make amendments to the Notice of Appeal and resubmit it, resulting in the application for an extension being filed out of time. The primary legal issue the court had to determine was whether the application for an extension of time should be granted, considering the principles that guide such decisions. Additionally, the court had to consider whether the respondent's application for costs should be successful.

The court considered the principles guiding extensions of time in the context of family law appeals, emphasising the importance of ensuring that justice is done between the parties. The court acknowledged the wife's efforts to pursue an appeal within the prescribed time frame, despite the deficiencies in the form of the Notice of Appeal. The court concluded that the wife had made genuine efforts to comply with the procedural requirements and that it was appropriate to grant an extension of time to allow the appeal to proceed. The court also found that the respondent had acted reasonably in seeking costs due to the wife's delay in filing the amended Notice of Appeal. Consequently, the court ordered that the time for filing the Notice of Appeal be extended to 4:00pm on 8 May 2008, and that the wife pay the respondent $500 in costs within fourteen days. The application filed by the wife on 27 March 2008 was dismissed and removed from the active pending cases list.

Orders

Orders of the court

That the time for the applicant to file a Notice of Appeal against the orders made by Federal Magistrate Brown on 11 February 2008 be extended to 4:00pm on 8 May 2008.

That within fourteen [14] days of the date hereof the applicant pay to the respondent’s solicitors on behalf of the respondent S Pty Ltd (in liquidation) the sum of FIVE HUNDRED DOLLARS [$500.00] by way of costs.

That the Application in a Case filed by the wife on 27 March 2008 be dismissed and removed from the active pending cases list.

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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