Jacobs and Sitch - [2014] FamCAFC 177

FAMILY COURT OF AUSTRALIA

JACOBS & SITCH

[2014] FamCAFC 177

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is no satisfactory explanation provided by the applicant for failing to file the appeal within time – where there is an arguable case on appeal – where there is prejudice to both parties depending on the result – where the justice of the case requires the granting of the application – time to file extended.

Family Law Act 1975 (Cth) – ss 94AAA
Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Rules 2004 (Cth) – r 22.02, r 22.03, r 22.11, and Chapter 22

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Jacobs

RESPONDENT:

Ms Sitch

FILE NUMBER:

MLC

10230

2009

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

9 September 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

9 September 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 July 2014

LOWER COURT MNC:

[2014] FCCA 1537

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Mr Weerappah

SOLICITOR FOR THE RESPONDENT:

Bayside Solicitors

Orders

The time for the father to file and serve a Notice of Appeal be extended to the close of business on Thursday 9 October 2014.
The oral application for costs made by the mother be dismissed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 56 of 2014
File Number: MLC 10230 of 2009

Mr Jacobs

Applicant

And

Ms Sitch

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

I have before me an application in an appeal filed by Mr Jacobs (“the father”) on 22 August 2014 in which he seeks an extension of time to file a Notice of Appeal against orders made by Judge Lucev on 21 July 2014.
The application is supported by an affidavit of the father and a draft Notice of Appeal both filed on 22 August 2014.
The application is opposed by Ms Sitch (“the mother”).

Relevant statute law and rules of court

Section 94AAA of the Act deals with, inter alia, appeals from the Federal Circuit Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
An appeal under subsection (1) or (1A) is to be instituted within
(a)the time prescribed by the standard Rules of Court; or
(b)such further time as is allowed in accordance with the standard Rules of Court.
Sections 94AAA(10),…

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 Jacobs and Sitch

Details

AGLC: Jacobs and Sitch [2014] FamCAFC 177
Case: [2014] FamCAFC 177
Decision Date: 9 September 2014

CaseChat Overview and Summary

The parties involved in this case are the mother, who is the applicant, and the father, who is the respondent. The dispute pertains to the mother's application for an extension of time to file and serve a Notice of Appeal in relation to a Family Court decision. The matter was heard in the Family Court of Australia. The mother sought an extension of time to file and serve a Notice of Appeal, arguing that the father had misled her about the timeline for lodging the Notice of Appeal. The mother also sought an order for costs against the father. The legal issues before the court were whether the mother's application for an extension of time should be granted and whether the father should be ordered to pay the mother's costs.

The court considered the circumstances of the case and the arguments presented by both parties. It found that the mother had acted promptly in making the application for an extension of time and that the father had indeed misled her about the timeline for lodging the Notice of Appeal. The court held that the mother's application for an extension of time should be granted and that the father should bear the costs of the application. However, the court also found that the mother had not established a basis for ordering the father to pay her costs and dismissed the mother's application for costs. The court therefore made an order extending the time for the father to file and serve a Notice of Appeal and dismissed the mother's application for costs.

Orders

Orders of the court

The time for the father to file and serve a Notice of Appeal be extended to the close of business on Thursday 9 October 2014.

The oral application for costs made by the mother be dismissed.

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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