KEYNES & KEYNES - [2014] FamCAFC 169

FAMILY COURT OF AUSTRALIA

KEYNES & KEYNES

[2014] FamCAFC 169

FAMILY LAW – APPEAL – APPLICATION IN A CASE - Application to extend time to file a Notice of Appeal – Consideration of Chapter 22 of the Family Law Rules 2004 – Where orders made without reasons – Where reasons for judgment published 28 days later – Where the mother would be prejudiced if she was denied the opportunity to appeal matters of real significance – Where expedition sought and not opposed - Application to extend time granted and expedition ordered.

Family Law Rules 2004 (Cth): rr 22.02, 22.03, 22.12

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Ms Keynes

RESPONDENT:

Mr Keynes

FILE NUMBER:

SYC

1742

2014

APPEAL NUMBER:

103

2014

DATE DELIVERED:

10 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

26 August 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

12 June 2014

LOWER COURT MNC:

[2014] FCCA 1453

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney SC

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Watkins

SOLICITOR FOR THE RESPONDENT:

GA Lawyers

Orders

The applicant be granted an extension of time until 4.00 pm on 15 September 2014 to appeal from the orders of Judge Scarlett made on 27 May 2014.
The respondent’s costs of the application filed 7 August 2014 are reserved to the Full Court.
In the event the applicant does not file a Notice of Appeal pursuant to order 1 of these orders, within 28 days of the date of default the respondent shall request that his costs application is relisted for further consideration by Ryan J.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keynes & Keynes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

Appeal Number: EA 103 of 2014
File Number: SYC 1742 of 2014

Ms Keynes

Applicant

And

Mr Keynes

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by Ms Keynes (“the mother”) for an extension of time to file a Notice of Appeal. The proposed appeal concerns interim parenting orders made in the Federal Circuit Court by Judge Scarlett on

12 June 2014. The order relates to the parties’ two children, J and P. The order requires the children to spend time with their father during school terms each week from after school on Monday until the commencement of school Thursday morning. In the event that the mother is given leave to file her Notice of Appeal out of time, she seeks to have her appeal expedited.
Mr Keynes (“the father”) is the children’s father and respondent in this application. It is his position that the mother’s application should be dismissed. In the event she is given leave to appeal he supports her application for expedition.

Background facts

So as to give…

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

AGLC: KEYNES & KEYNES [2014] FamCAFC 169
Case: [2014] FamCAFC 169
Decision Date: 10 September 2014

CaseChat Overview and Summary

The parties in this case were the applicant, Keynes, and the respondent. The nature of the dispute was an application for an extension of time to appeal from certain orders made by Judge Scarlett on 27 May 2014. The matter was heard in the Supreme Court of the relevant jurisdiction.

The legal issues that the court was required to decide included whether the applicant had a sufficient reason for the delay in lodging the appeal and whether an extension of time should be granted. The court also needed to consider the respondent's costs application in relation to the current application.

In its reasoning, the court found that the applicant had a valid reason for the delay in lodging the appeal, which justified the granting of an extension of time. The court acknowledged the importance of the appeal and the need for the applicant to have sufficient time to prepare and file the necessary documents. Regarding the respondent's costs application, the court decided to reserve the matter to the Full Court for further consideration. If the applicant did not file a Notice of Appeal within the specified timeframe, the court directed that the respondent's costs application would be relisted for consideration by Ryan J.

The court's orders included granting the applicant an extension of time until 4.00 pm on 15 September 2014 to appeal from the orders of Judge Scarlett. Additionally, the respondent’s costs of the application filed on 7 August 2014 were reserved to the Full Court. In the event that the applicant did not file a Notice of Appeal within 28 days of the date of default, the respondent was to request that his costs application be relisted for further consideration by Ryan J.

Orders

Orders of the court

The applicant be granted an extension of time until 4.00 pm on 15 September 2014 to appeal from the orders of Judge Scarlett made on 27 May 2014.

The respondent’s costs of the application filed 7 August 2014 are reserved to the Full Court.

In the event the applicant does not file a Notice of Appeal pursuant to order 1 of these orders, within 28 days of the date of default the respondent shall request that his costs application is relisted for further consideration by Ryan J.

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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