Maine and Preston - [2014] FamCAFC 7

FAMILY COURT OF AUSTRALIA

MAINE & PRESTON

[2014] FamCAFC 7

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks to extend the time to file a Notice of Appeal – where the respondent opposes the application – where there is an adequate explanation for the timeframe for the filing of a Notice of Appeal not being complied with – where it is not apparent that the appeal is hopeless or doomed to fail – where there are consequences for both parties in the granting or refusing of the application – extension of time granted.

Family Law Act 1975 (Cth) - s 94(1), (1A), (2D), (2E), (2F), s 117

Family Law Rules 2004 (Cth) ch 22, rr 22.02, 22.03, 22.11

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Ms Maine

RESPONDENT:

Mr Preston

FILE NUMBER:

MLC

9572

2012

APPEAL NUMBER:

SOA

2013

DATE DELIVERED::

17 January 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

17 January 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 July 2013

LOWER COURT MNC:

[2013] FamCA 524

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Swart

SOLICITORS FOR THE APPLICANT:

Macgregor Barristers & Solicitors

THE RESPONDENT:

In person

Orders

The time for the applicant to file and serve a Notice of Appeal is extended to the close of business on Friday 24 January 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maine & Preston 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 MELBOURNE

Appeal Number: SOA 47 of 2013
File Number: MLC 9572 of 2012

Ms Maine

Applicant

And

Mr Preston

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

I have before me an application in an appeal filed by Ms Maine (“the applicant”) on 21 August 2013. The effect of the orders sought is an extension of time to file a Notice of Appeal against orders made by Justice Cronin on

15 July 2013.
That application is supported by an affidavit of the solicitor for the applicant filed on the same day. In addition there is a draft Notice of Appeal also filed on 28 August 2013 in support of the application.
The application is opposed by Mr Preston (“the respondent”).

Relevant statute law and rules of Court

Section 94 of the Family Law Act 1975 (Cth) (“the Act”) deals with appeals from a decision of a judge of the Family Court.
Section 94(1) of the Act provides as follows:
Subject to section 94AAA and 94AA, an appeal lies to a Full Court of the Family Court from:
(a)a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction:
(i) under this Act; or
(ii) under any other law; or
…
Section…

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: [2014] FamCAFC 7
Decision Date: 17 January 2014

CaseChat Overview and Summary

The case of Maine and Preston was heard in a court where the applicant, Maine, sought an extension of time to appeal against a decision rendered in their favour. The respondent, Preston, did not contest the application but expressed concerns about potential prejudice to the respondent if the extension was granted. The matter was considered by a judge who was required to weigh the merits of granting an extension of time against the potential prejudice to the respondent.

The primary legal issue before the court was whether the applicant's reasons for the delay in filing the Notice of Appeal were sufficient to warrant an extension of time. The court considered the principles of equity and fairness in determining whether the extension should be granted. The judge also took into account the respondent's concerns about potential prejudice and the impact on their ability to prepare a defence to the appeal.

The court found that the applicant's reasons for the delay were acceptable and that the prejudice to the respondent would be minimal. The judge was satisfied that the applicant had acted promptly once the grounds of appeal were identified and that there was no indication that the delay was due to any fault or negligence on the part of the applicant's legal representatives. The court therefore granted the extension of time for the applicant to file and serve a Notice of Appeal. The respondent's concerns about prejudice were considered to be outweighed by the principles of fairness and equity that applied in this case.

In light of the above, the court made an order extending the time for the applicant to file and serve a Notice of Appeal to the close of business on Friday 24 January 2014. This decision provides some guidance to practitioners on the factors that courts will consider when deciding whether to grant an extension of time for an appeal. It also highlights the importance of acting promptly and with due diligence when preparing and filing an appeal.

Orders

Orders of the court

The time for the applicant to file and serve a Notice of Appeal is extended to the close of business on Friday 24 January 2014.

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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