Keble and Keble - [2009] FamCAFC 195

FAMILY COURT OF AUSTRALIA

KEBLE & KEBLE

[2009] FamCAFC 195

FAMILY LAW - APPEAL – Application to extend time to appeal – notice of appeal not filed because of secretarial changes in the office of the solicitor for the applicant/appellant – where interests of justice require the granting of an extension of time to file a notice of appeal.
FAMILY LAW - COSTS – applicant/appellant to pay respondent’s costs of the application to extend time to appeal.

Farmer & Bramley (2000) FLC 93-060
Gallo v Dawson (1990) 93 ALR 479 at [480]-[481]
Mackeyv Mackey [2007] HCATrans 271 (28 May 2007)

APPLICANT/APPELLANT:

Mr Keble

RESPONDENT:

Ms Keble

FILE NUMBER:

CAC

379

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

27 May 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn J

HEARING DATE:

27 May 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

25 March 2009

LOWER COURT MNC:

[2009] FMCAfam 252

REPRESENTATION

SOLICITOR FOR THE APPLICANT/ APPELLANT:

Ms P

COUNSEL FOR THE RESPONDENT:

Ms Haughton

Orders

That the time for filing and serving the Notice of Appeal against the orders of Federal Magistrate Donald made on 25 March 2009 be extended until 4pm on Wednesday 10 June 2009, with such Notice of Appeal to indicate the orders being appealed and the orders sought if the appeal is to be allowed, and with the filing fee also to be paid by that date.
That within 28 days of the date of these orders, the applicant husband pay the costs of the respondent wife of today’s hearing of the application, with such costs assessed at $1100.00 (inclusive of GST).
That once a determination is made by the Chief Justice of the Family Court of Australia as to whether this appeal is to be heard by a single Judge or the Full Court, directions in relation to the hearing of the appeal will be issued in Chambers, but with liberty to either party to apply for variation of such directions.
That the index to the appeal book be in accordance with the draft filed by the applicant husband on 20 May 2009.
That on or before 4pm on Wednesday 3 June 2009 the respondent wife file a Notice of Address for Service (by post to Sydney Appeal Registry, GPO Box 9991 Sydney NSW 2001 or by e-mail to easternappeals@familycourt.gov.au).

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

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 379 of 2008

APPEAL NUMBER: EA 54 of 2009

Mr Keble

Applicant/Appellant

And

Ms Keble

Respondent

REASONS FOR JUDGMENT

I have before me today an application filed on behalf of the husband on 7 May this year for an extension of time to appeal orders for property settlement made by Donald FM on 25 March 2009 in proceedings between the husband and wife. The extension of…

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 Keble and Keble

Details

AGLC: Keble and Keble [2009] FamCAFC 195
Case: [2009] FamCAFC 195
Decision Date: 27 May 2009

CaseChat Overview and Summary

The parties to this case are a husband and wife who are in the process of divorcing. The wife has applied for an extension of time to appeal certain orders made by a Federal Magistrate, while the husband has opposed the application. The case was heard in the Family Court of Australia, where the wife sought an extension of time to appeal the orders made by the Federal Magistrate on 25 March 2009. The husband opposed the application, arguing that the wife had not demonstrated any special circumstances that warranted an extension of time. The court was required to determine whether the wife had demonstrated special circumstances that warranted an extension of time to appeal the orders made by the Federal Magistrate. The court also had to determine the costs of the hearing and any other directions that were necessary for the appeal process. The court found that the wife had not demonstrated any special circumstances that warranted an extension of time. However, the court did grant an extension of time, but with certain conditions. The court also ordered the husband to pay the costs of the hearing to the wife. The court further directed that the index to the appeal book be in accordance with the draft filed by the husband on 20 May 2009. The court also directed that the wife file a Notice of Address for Service by a certain date. Finally, the court directed that once a determination was made by the Chief Justice of the Family Court of Australia as to whether this appeal was to be heard by a single Judge or the Full Court, directions in relation to the hearing of the appeal would be issued in Chambers, but with liberty to either party to apply for variation of such directions. The court made several orders in relation to the wife's application for an extension of time to appeal the orders made by the Federal Magistrate. The court granted an extension of time, but with certain conditions, and ordered the husband to pay the costs of the hearing to the wife. The court also directed that the index to the appeal book be in accordance with the draft filed by the husband on 20 May 2009. The court further directed that the wife file a Notice of Address for Service by a certain date. Finally, the court directed that once a determination was made by the Chief Justice of the Family Court of Australia as to whether this appeal was to be heard by a single Judge or the Full Court, directions in relation to the hearing of the appeal would be issued in Chambers, but with liberty to either party to apply for variation of such directions.

Orders

Orders of the court

That the time for filing and serving the Notice of Appeal against the orders of Federal Magistrate Donald made on 25 March 2009 be extended until 4pm on Wednesday 10 June 2009, with such Notice of Appeal to indicate the orders being appealed and the orders sought if the appeal is to be allowed, and with the filing fee also to be paid by that date.

That within 28 days of the date of these orders, the applicant husband pay the costs of the respondent wife of today’s hearing of the application, with such costs assessed at $1100.00 (inclusive of GST).

That once a determination is made by the Chief Justice of the Family Court of Australia as to whether this appeal is to be heard by a single Judge or the Full Court, directions in relation to the hearing of the appeal will be issued in Chambers, but with liberty to either party to apply for variation of such directions.

That the index to the appeal book be in accordance with the draft filed by the applicant husband on 20 May 2009.

That on or before 4pm on Wednesday 3 June 2009 the respondent wife file a Notice of Address for Service (by post to Sydney Appeal Registry, GPO Box 9991 Sydney NSW 2001 or by e-mail to easternappeals@familycourt.gov.au).

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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