JUNE & ROMANO - [2011] FamCAFC 31

FAMILY COURT OF AUSTRALIA

JUNE & ROMANO

[2011] FamCAFC 31

FAMILY LAW - APPEAL – Application to extend time to appeal – Where the delay in filing the notice of appeal and leave to appeal was explained – Where the respondent wife was concerned that the appeal was a delay tactic of the applicant husband – Where counsel for the husband allayed the delay tactic fears – Where there was no considerable prejudice to the wife – Leave granted.

FAMILY LAW - COSTS – Where the expended costs were only necessary due to the applicant husband’s delay – Where there was a reasonable explanation for the delay – Where the substance of the appeal is yet to be determined – The wife’s application for costs of and incidental to the application for leave reserved to the Full Court.

Family Law Act 1975 (Cth)

Clivery & Conway [2007] FamCA 1435

Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr June

RESPONDENT:

Ms Romano

FILE NUMBER:

BRC

3679

2010

APPEAL NUMBER:

128

2010

DATE DELIVERED:

19 January 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

19 January 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 October 2010

LOWER COURT MNC:

[2010] FamCA 1027

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr North SC

SOLICITOR FOR THE APPELLANT:

Bowen Buchbinder Vilensky

SOLICITOR FOR THE RESPONDENT:

Hirst & Co

Orders

That the applicant husband have leave to file a notice of appeal out of time and the time within which the appeal may be filed be extended to 4.00pm on Monday 24 January 2011.
That the wife’s costs of and incidental to the leave application be reserved to the Full Court.

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

IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 128 of 2010
File Number: BRC 3679 of 2010

Mr June

Appellant

And

Ms Romano

Respondent

EX TEMPORE
REASONS FOR JUDGMENT

Introduction

On 7 December 2010 the husband filed an application in an appeal seeking an extension of time in which to file an appeal from the orders of Justice O’Reilly made 29 October 2010. The proceedings before O’Reilly J concerned miscellaneous interlocutory and interim property applications.
In support of the husband’s application an affidavit was filed on same date by the husband’s solicitor. A further affidavit was filed by leave on the husband’s behalf.
The application is resisted by the wife, who seeks that the application be dismissed and that the husband pay the wife costs on an indemnity basis. In the event that the husband is granted leave, the wife asks that the husband be ordered to pay the wife’s costs on a party-party basis as assessed.

Relevant Law

The principles referable to leave applications are well known and were discussed in Clivery & Conway [2007] FamCA 1435

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 JUNE & ROMANO

Details

AGLC: JUNE & ROMANO [2011] FamCAFC 31
Case: [2011] FamCAFC 31
Decision Date: 19 January 2010

CaseChat Overview and Summary

The parties involved in the case were June and Romano, who were embroiled in a family law dispute that reached the appellate court. The husband, Romano, sought to extend the time limit for filing a notice of appeal after the initial deadline had passed, while his wife, June, was concerned that this was a delay tactic. The central legal issues that the court had to address were whether the delay in filing the notice of appeal and the request for leave to appeal could be justified and whether it was in the interest of justice to grant the husband's application. Additionally, the court had to determine if the wife's application for costs of and incidental to the leave application should be reserved for the Full Court.

The court considered the explanation provided for the delay and the assurances given by the husband's counsel that this was not a tactic to delay the proceedings. The court found that the delay did not cause significant prejudice to the wife and that there was a reasonable explanation for the delay. Consequently, the court granted the husband leave to file a notice of appeal out of time, extending the deadline to 4.00pm on Monday, 24 January 2011. However, the wife's application for costs of and incidental to the leave application was reserved for the Full Court to decide, as the substance of the appeal had not yet been determined.

In summary, the court granted the husband's application for an extension to file a notice of appeal, recognising the reasonable explanation for the delay and the lack of significant prejudice to the wife. The wife's application for costs was reserved for the Full Court to consider once the substantive appeal is determined.

Orders

Orders of the court

That the applicant husband have leave to file a notice of appeal out of time and the time within which the appeal may be filed be extended to 4.00pm on Monday 24 January 2011.

That the wife’s costs of and incidental to the leave application be reserved to the Full Court.

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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