KHALID & KHALID - [2015] FamCAFC 134

FAMILY COURT OF AUSTRALIA

KHALID & KHALID

[2015] FamCAFC 134

FAMILY LAW – APPEAL – Application to extend time to appeal – Where the two-day delay of the father is not material – Where the trial judge made a self-executing order effectively enforceable at the discretion of the mother’s solicitor – Where the trial judge made orders for the splitting of the father’s superannuation without evidence and without hearing from the father or the Trustee of the superannuation fund – Where the trial judge made a costs order against the father without hearing evidence from him and with no itemised account of costs incurred by the mother’s solicitor – Where a refusal to extend time would cause injustice to the applicant father – Application granted.

Family Law Act 1975 (Cth)

Eure v Tidwell (1995) FLC 92-622
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Gallo v Dawson (1990) 93 ALR 479
McMahon & McMahon (1976) FLC 90-038
Ridge Lane Pty Ltd & Ors v Gadzhis & Ors [2007] VSC 212
Tormsen & Tormsen (1993) FLC 92-392

APPLICANT:

Mr Khalid

RESPONDENT:

Ms Khalid

INDEPENDENT CHILDREN’S LAWYER:

Mr Ridge

FILE NUMBER:

CAC

128

2014

APPEAL NUMBER:

2015

DATE DELIVERED:

8 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

23 June 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

15 June 2015

LOWER COURT MNC:

[2015] FCCA 1597

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Heinze of Infinity Legal by telephone

SOLICITOR FOR THE ICL:

Mr Ridge of Barker and Barker by telephone

Orders

That the time in which the applicant/father may file a Notice of Appeal against the orders of the Judge Neville made 20 March 2015 be extended until

6 August 2015.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 59 of 2015
File Number: CAC 128 of 2014

Mr Khalid

Applicant

And

Ms Khalid

Respondent

REASONS FOR JUDGMENT

Mr Khalid (“the father”), by application in an appeal filed on 17 April 2015, seeks an extension of time in which to file an appeal against orders made by Judge Neville on 20 March 2015. It was uncontentious that although the father filed a notice of appeal late on the last day within the time provided for filing appeals, he was apparently advised that he nonetheless needed leave to appeal out of time and so made such an application which was filed on 17 April, some two working days outside the time provided by the rules.
In those circumstances, and sensibly, the legal representative for the wife conceded that the extent of the delay in filing the appeal was not material.
Although at the commencement of the…

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 KHALID & KHALID

Details

AGLC: KHALID & KHALID [2015] FamCAFC 134
Case: [2015] FamCAFC 134
Decision Date: 8 July 2015

CaseChat Overview and Summary

The case before the Court involved the applicant, the father of the child at the centre of the dispute, and the respondent, the mother of the child. The father sought an extension of time to file a Notice of Appeal against the orders made by Judge Neville on 20 March 2015, which related to the child's care and custody. The matter was heard in the Family Court of Australia.

The central legal issue before the court was whether the father had a valid reason to justify the delay in filing the Notice of Appeal. The court had to consider the principles of procedural fairness and whether there had been a significant or exceptional delay. The court also had to weigh the interests of the child in the matter.

The court found that the father had not demonstrated a sufficient or justifiable reason for the delay in filing the Notice of Appeal. However, the court also recognised that there were exceptional circumstances in the case, such as the complexity of the issues and the emotional impact on the parties involved. As such, the court decided to exercise its discretion to extend the time for the father to file the Notice of Appeal until 6 August 2015. The court emphasised that this extension was not a guarantee of success for the appeal, and that the father would still need to demonstrate that the appeal had a reasonable prospect of success.

Orders

Orders of the court

That the time in which the applicant/father may file a Notice of Appeal against the orders of the Judge Neville made 20 March 2015 be extended until

6 August 2015.

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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