Keating and Keating

[2018] FamCAFC 80

FAMILY COURT OF AUSTRALIA

KEATING & KEATING [2018] FamCAFC 80

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the wife sought to file a Notice of Appeal out of time – Where the husband consented to an extension of time.

FAMILY LAW – APPEAL – COSTS – Where the husband sought an order for costs – Where an offer in writing was made to the wife – Where the wife’s success on appeal is significant to the issue of costs of the application – Where the wife is self-represented and incurred no legal costs in respect of the application – Where the husband’s costs are reserved to the Full Court upon hearing of the appeal.

Family Law Act 1975 (Cth) s 117(2A)

APPLICANT: Ms Keating

RESPONDENT: Mr Keating

FILE NUMBER: BRC 1506 of 2012

APPEAL NUMBER: NOA 23 of 2018

DATE DELIVERED: 19 April 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 19 April 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 10 January 2018

LOWER COURT MNC: [2018] FCCA 174

REPRESENTATION

FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Dowd & Company Lawyers

Orders

IT IS ORDERED BY CONSENT:

1. That the Application in an Appeal filed on 14 March 2018 for an extension of time to file a Notice of Appeal against the orders of Judge Baumann made on 10 January 2018 be granted.

IT IS FURTHER ORDERED:

1. That the time in which the wife may file a Notice of Appeal against the order of Judge Baumann made on 10 January 2018 be extended to 4.00pm on Friday 4 May 2018.

2. That the wife shall file and serve any Notice of Appeal upon which she seeks to rely on or before 4.00pm on Friday 4 May 2018.

3. That upon the filling of the Notice of Appeal pursuant to Order (3), the Appeals Registrar is requested to appoint a time for the settling of an appeal index and to make all such further directions as might be required.

4. The costs of and incidental to the Application in an Appeal be reserved to the Full Court hearing the appeal.

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 Keating & Keating 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number:       NOA 23 of 2018
File Number:            BRC 1506 of 2012

Ms Keating

Applicant

And

Mr Keating

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 10 January 2018 Judge Baumann (as he was then) made orders for settlement of property pursuant to s 79 of the Family Law Act 1957 (Cth) (“the Act”) and delivered reasons for those orders.

2. In late February the wife sought to file a Notice of Appeal with respect to those orders. The documents were returned to her as they were not filed within the required 28 days from the date of the orders.

3. The wife filed, in the first instance, an application to review the Registrar’s decision in failing to accept the Notice of Appeal. In the alternative she seeks that time be extended to file a Notice of Appeal.

4. The gravamen of the argument advanced is, in simple terms, that the wife, as a lay person, misapprehended the requirements with respect to the filing of a Notice of Appeal and contended, and in a sense continues to contend, that her Notice of Appeal was filed within time.

5. Whether that’s the case or not, she, in any event files an application to extend the time in which to appeal.

6. The husband, in his Response to that application, consents to the filing of the Notice of Appeal out of time, but seeks an order that the wife pay his costs of and incidental to the application.

7. A number of circumstances are advanced on behalf of the husband for seeking those costs, including the granting of an indulgence by the Court to the wife, by dint of the nature of the application, and that an offer in writing was made to the wife that she should file her Notice of Appeal within three business days, and that she should pay the costs of the application fixed in the amount of $995.46. The very short time-frame of three business days is explained by the solicitor for the husband who said that it was the solicitor’s understanding that the wife had available a Notice of Appeal to be filed immediately.

8. In effect though, the offer to settle simply says that the husband should be granted the orders that he wants.

9. It seems to me that while various arguments can be put forward with respect to s 117(2A) of the Act as to why an order should be made for costs now, in large part, a very significant issue in respect of any such costs order will be whether the wife is wholly unsuccessful in the ultimate appeal.

10. In those circumstances it seems to me appropriate that the question of costs of and incidental to the application be reserved to the Full Court upon the hearing of the appeal.

11. I raised that issue specifically with the solicitor for the husband and no opposition to that course was advanced.

12. I should indicate that as I have said, the wife represents herself. She does not contend that she has incurred any legal costs in and about her application and the order that I will make is that the respondent husband’s costs of and incidental to the appeal be reserved to the Full Court upon the hearing of the appeal.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 19 April 2018.

Associate: 

Date:  27 April 2018