JEANES & JEANES - [2015] FamCAFC 142

FAMILY COURT OF AUSTRALIA

JEANES & JEANES

[2015] FamCAFC 142

FAMILY LAW – APPEAL – Application to extend time to appeal – Where final property orders were made at an undefended hearing – Whether the husband’s Notice of Appeal was filed out of time – Whether the time in which to file an appeal commenced to run when the orders were “made” or when said to “take effect” – Where the delay in filing the Notice of Appeal is material – Where the husband provided no adequate explanation for the delay – Where the proposed appeal has no merit – Where the wife would suffer injustice if leave be granted to the husband – Application dismissed.

FAMILY LAW – APPEAL – Costs – Where the respondent wife sought that the husband pay her costs of the application – Where the application was wholly unsuccessful – Where the making of a costs order is warranted – Husband to pay the wife’s costs of and incidental to the application.

Family Law Act 1975 (Cth) ss 4(1), 79(4), 75(2), 81, 94A(1),

Family Law Rules 2004 (Cth) rules 17.01, 22.03

Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1
Edwards v Noble (1971) 125 CLR 296
Gallo v Dawson (1990) 93 ALR 479
Sedrak v Carney [1998] VSCA 114; [1999] 3 VR 95

APPLICANT:

Mr Jeanes

RESPONDENT:

Ms Jeanes

FILE NUMBER:

SYC

3625

2014

APPEAL NUMBER:

2015

DATE DELIVERED:

24 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

7 July 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 May 2015

LOWER COURT MNC:

[2015] FamCA 385

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hanlon

SOLICITOR FOR THE APPLICANT:

Bowen Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms Gordon of Gordon & Barry Lawyers

Orders

Application for extension of time in which to appeal the orders of Le Poer Trench J made on 23 February 2015 be dismissed.
Husband to pay the wife’s cost of and incidental to the application in the sum of $5,500, such costs to be paid no later than 28 days from the date of this order.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 71 of 2015
File Number: SYC 3625 of 2014

Mr Jeanes

Applicant

and

Ms Jeanes

Respondent

REASONS FOR JUDGMENT

By application filed 18 May 2015, Mr Jeanes (“the husband”) seeks an extension of time in which to file an appeal against final property orders made by Le Poer Trench J on 23 February 2015. Ms Jeanes (“the wife”) opposes the application.
The husband and wife were married in 1968 and separated in December 2013. The husband is a professional who is presently conducting practice in O Town in the Northern…

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: JEANES & JEANES [2015] FamCAFC 142
Case: [2015] FamCAFC 142
Decision Date: 24 July 2015

CaseChat Overview and Summary

The case of Jeanes & Jeanes involved a dispute between the parties following a family law hearing where property orders were made. The husband sought to appeal the final property orders that were made at an undefended hearing, but he filed his Notice of Appeal outside the stipulated time frame. The wife opposed the application to extend the time to appeal and sought costs. The legal issue before the court was whether the husband's Notice of Appeal was filed out of time and if it should be granted leave to appeal despite the delay. Additionally, the court had to determine if the husband's appeal had any merit and whether granting leave to appeal would cause injustice to the wife.

The court held that the time to appeal began to run when the orders were made, not when they were said to take effect. The husband's delay in filing the Notice of Appeal was significant, and he provided no adequate explanation for the delay. The court further found that the proposed appeal had no merit and that granting leave to appeal would cause injustice to the wife. Consequently, the application for an extension of time to appeal was dismissed. The court also ruled that the husband should pay the wife's costs of and incidental to the application.

In summary, the court dismissed the husband's application to extend the time in which to appeal the final property orders. It also ordered the husband to pay the wife's costs of and incidental to the application in the sum of $5,500, to be paid within 28 days of the order. This decision reinforces the importance of timely filing of appeals and the consequences of failing to do so without adequate explanation.

Orders

Orders of the court

Application for extension of time in which to appeal the orders of Le Poer Trench J made on 23 February 2015 be dismissed.

Husband to pay the wife’s cost of and incidental to the application in the sum of $5,500, such costs to be paid no later than 28 days from the date of this order.

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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