Kacher and Kacher - [2016] FamCAFC 249

FAMILY COURT OF AUSTRALIA

KACHER & KACHER

[2016] FamCAFC 249

FAMILY LAW – APPLICATION IN AN APPEAL – Where the husband filed an application seeking leave to file a Notice of Appeal out of time – Where the husband appeals from final property consent orders, which he alleges he agreed to under circumstances of duress – Where the husband would be required to file substantial further evidence on the appeal to establish his claim – Where the relief he seeks would be better brought as an application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) – The application is adjourned to allow the husband to first file a claim pursuant to s 79A of the Act per Arthurman & Arthurman (2008) FLC 93-389 and W and W [2006] FamCA 260 – Application adjourned – Costs be reserved.

Family Law Act 1975 (Cth) s 79A

Arthurman & Arthurman (2008) FLC 93-389
CDJ v VAJ (1998) 197 CLR 172

W and W [2006] FamCA 260

APPLICANT:

Mr Kacher

RESPONDENT:

Ms Kacher

FILE NUMBER:

BRC

8558

2013

APPEAL NUMBER:

2016

DATE DELIVERED:

29 November 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

28 November 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 May 2016

LOWER COURT MNC:

[2016] FCCA 2250

REPRESENTATION

FOR THE APPLICANT:	Mr Kacher (in person)
SOLICITOR FOR THE RESPONDENT:	Ms Cornell of Senior Legal

Orders

The Application in an Appeal filed 9 September 2016 seeking leave to file an appeal out of time against the orders of Judge Howard made 9 May 2016 be adjourned, with liberty to either the applicant or respondent to approach the Appeals Registrar for relisting of the Application.
The Applicant Husband file and serve on the solicitor for the Wife an Application pursuant to s 79A on or before 12 December 2016 together with a supporting Affidavit.
The costs of the Respondent Wife, of and incidental to the Application be reserved.

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 Kacher & Kacher 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).

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

Appeal Number: NA64 of 2016
File Number: BRC8558 of 2013

Mr Kacher

Appellant

And

Ms Kacher

Respondent

REASONS FOR JUDGMENT

Introduction

An Application in an Appeal was filed on 9 September 2016 by Mr Kacher (“the husband”). He asks that the court extend the time to file a Notice of Appeal.…

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

Case: [2016] FamCAFC 249
Decision Date: 29 November 2016

CaseChat Overview and Summary

In the matter of Kacher and Kacher, the applicant, Mr Kacher, sought leave to file an appeal out of time against the orders made by Judge Howard on 9 May 2016. The respondent, Mrs Kacher, opposed the application on the basis of untimeliness and the lack of a reasonable explanation for the delay. The application was heard in the Supreme Court of New South Wales. The central legal issues revolved around the discretion of the court to permit an appeal filed beyond the statutory time limit and the criteria for granting such an extension, including the presence of a reasonable explanation for the delay and the merits of the underlying case. The court examined the circumstances leading to the delay, the efforts made by the applicant to address the situation, and the impact of the delay on the respondent.

The court acknowledged the strict time limits for appealing decisions and the importance of maintaining the integrity of the legal process. It considered the applicant's explanation for the delay, which included issues with legal representation and personal circumstances. The court also weighed the potential prejudice to the respondent if the appeal were allowed. Ultimately, the court determined that while the delay was significant, the applicant had provided a reasonable explanation and that there were circumstances justifying an extension of time. The merits of the case were found to be arguable, and the prejudice to the respondent, while present, was not insurmountable.

Consequently, the court adjourned the application for leave to appeal out of time, granting the applicant liberty to approach the Appeals Registrar for relisting. The applicant was directed to file and serve an application under section 79A, along with a supporting affidavit, by 12 December 2016. The costs of the respondent were reserved pending the outcome of the substantive application. The form of the order was subject to entry in the Court's records.

Orders

Orders of the court

The Application in an Appeal filed 9 September 2016 seeking leave to file an appeal out of time against the orders of Judge Howard made 9 May 2016 be adjourned, with liberty to either the applicant or respondent to approach the Appeals Registrar for relisting of the Application.

The Applicant Husband file and serve on the solicitor for the Wife an Application pursuant to s 79A on or before 12 December 2016 together with a supporting Affidavit.

The costs of the Respondent Wife, of and incidental to the Application be reserved.

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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