KENDLING & KENDLING (APPLICATION TO EXTEND TIME TO APPEAL) - [2008] FamCAFC 49

FAMILY COURT OF AUSTRALIA

KENDLING & KENDLING
(APPLICATION TO EXTEND TIME TO APPEAL)

[2008] FamCAFC 49

FAMILY LAW - APPLICATION TO EXTEND TIME TO APPEAL – Where the applicant sought an extension of time to file Notice of Appeal – Application of Gallo & Dawson (1990) 93 ALR 479 – Where proposed grounds of appeal raised at least one substantial issue - Where the leave application was filed reasonably promptly after the expiration of the time provided in the Family Law Rules 2004 for filing an appeal – Where the delay in filing the appeal was not solely due to the applicant – Delay was regrettable but understandable – Where applicant able to pay costs in amelioration of any prejudice experienced by the respondent if the appeal is unsuccessful – Where there is other continuing litigation between the parties currently before the Court – Failure to grant leave would constitute injustice - Extension of time granted.

FAMILY LAW - COSTS – Where applicant sought and obtained an indulgence from the Court – Applicant to pay respondent’s costs of and incidental to the application.

Family Law Act 1975 (Cth) – Part VII, s 94(1A), s 94(2D), s 94(2E), s 94(2F)

Family Law Rules 2004 – Chapter 22, r 1.21, r 22.02, r 22.03, r 22.12, r 22.42

Abalos v Australian Postal Commission (1990-1991) 171 CLR 167
CDJ v VAJ (1998) 197 CLR 172
Fox v Percy (2003) 214 CLR 118
Gallo & Dawson (1990) 93 ALR 479.
Gronow v Gronow (1979) 144 CLR 513;
In the Marriage of NB and EM Joshua (1997) FLC 92-767; (1997) 22 Fam LR 203
Mackey and Mackey [2007] HCATrans 271 (28 May 2007)
McMahon & McMahon reported in (1976) FLC 90-038
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68
Tormsen & Tormsen (1993) FLC 92-392

APPLICANT:

Mr Kendling

RESPONDENT:

Ms Kendling

FILE NUMBER:

SYF

2903

2003

APPEAL NUMBER:

2008

DATE DELIVERED:

26 February 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

25 February 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 December 2007

LOWER COURT MNC:

[2007] FamCA 1530

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Baran

SOLICITOR FOR THE APPLICANT:

Dorrough Smart

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Michael Conley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O’Dowd

Orders amended under the slip rule

That the time in which to file a Notice of Appeal by the husband against the orders of the Honourable Justice Cronin made 21 December 2007 be extended to 4.00 pm on 14 March 2008.
That appellant husband file and serve a draft appeal index and pre-argument statement on or before 4.00 pm on 14 March 2008.
The Appeal Registrar is authorised to conduct a procedural hearing in respect of the proposed appeal as soon as practical after compliance with Order 2 at date and time to be notified to the parties.
Liberty to either…

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: [2008] FamCAFC 49
Decision Date: 26 February 2008

CaseChat Overview and Summary

Mr Kendling has applied for an extension of time to file a Notice of Appeal against parenting orders made by Cronin J on 21 December 2007. The application is opposed by Ms Kendling. The appeal against the trial Judge’s orders was required to be filed on or before 18 January 2008. The husband’s solicitor admits fault in not attending to filing the Notice of Appeal within the time provided in the rules. The husband contends there has been a forensic misuse by the trial Judge in respect of credit findings. The wife contends the grounds of appeal are not properly framed. I am satisfied the delay in filing the appeal was not solely due to the husband and the delay was regrettable but understandable. The husband’s ability to pay costs if the appeal is unsuccessful and other continuing litigation before the Court are factors that tip the balance in favour of the grant of an extension of time. An extension of time is granted. The husband is to pay the wife’s costs of and incidental to the application.

Orders