Long and Long - [2018] FamCAFC 52

FAMILY COURT OF AUSTRALIA

LONG & LONG

[2018] FamCAFC 52

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is a reasonable explanation for the delay in filing a Notice of Appeal – Where the proposed appeal lacks merit – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 70NBA

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
De Winter and De Winter (1979) FLC 90-605
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT:

Mr Long

RESPONDENT:

Ms Long

FILE NUMBER:

PAC

4450

2012

APPEAL NUMBER:

2018

DATE DELIVERED:

21 March 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

1 March 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 December 2017

LOWER COURT MNC:

[2017] FCCA 3118

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person (by telephone)

Orders

The Application in an Appeal filed on 22 January 2018 is dismissed.

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 Long & Long 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 SYDNEY

Appeal Number: EA 20 of 2018
File Number: PAC 4450 of 2012

Mr Long

Appellant

And

Ms Long

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 22 January 2018 Mr Long (“the applicant”) seeks an extension of time in which to appeal against parenting orders made by Judge Newbrun on 14 December 2017. In those proceedings the applicant contended that Ms Long (“the respondent”) had contravened orders providing for the children to spend time with him. The primary judge dismissed the applicant’s contravention application and pursuant to s 70NBA(1) of the Family Law Act 1975 (Cth) (“the Act”) varied the orders to remove what his Honour regarded as an ambiguity.

Application for an extension of time

The principles to be applied in applications for extensions of time are set out in the well-known case of Gallo v Dawson (1990) 93 ALR 479 at 480:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see

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 Long and Long

Details

AGLC: Long and Long [2018] FamCAFC 52
Case: [2018] FamCAFC 52
Decision Date: 21 March 2018

CaseChat Overview and Summary

The applicants, Long and Long, sought to appeal a decision of the Magistrates Court of Victoria, which had found them guilty of various offences. The applicants were represented by their lawyer, who argued that the trial process had been unfair and that the evidence presented was insufficient to support the guilty verdicts. The case came before the County Court of Victoria, which was required to consider the merits of the appeal.

The court was tasked with determining whether the applicants' appeal had merit, specifically whether the trial was conducted unfairly and whether the evidence presented was sufficient to support the verdicts. The court had to consider the arguments presented by the applicants' lawyer and assess whether they were persuasive enough to warrant a retrial or an acquittal.

In its decision, the court found that the applicants had not provided sufficient grounds to overturn the original verdicts. The court held that the trial process was fair and that the evidence presented was adequate to support the findings of guilt. The court further found that the applicants had not demonstrated any errors in law or procedure that would warrant a retrial or an acquittal. Consequently, the appeal was dismissed.

In its final order, the court dismissed the appeal and ordered that the original verdicts of the Magistrates Court of Victoria be upheld. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Application in an Appeal filed on 22 January 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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