Mareet & Colbrooke - [2018] FamCAFC 254

FAMILY COURT OF AUSTRALIA

MAREET & COLBROOKE

[2018] FamCAFC 254

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for the extension of time to file a notice of appeal against interim parenting orders – Where the settled reasons were not provided to the parties before the expiration of the appeal period – Where the orders involve a very young child and significant change to the child and applicant’s living arrangements – Where some of the proposed grounds of appeal are arguable – Applicant for extension of time to file a notice of appeal granted – Appeal expedited – Costs of the application to be costs in the appeal.

Family Law Act 1975 (Cth) s 69ZL
Family Law Rules 2004 (Cth) rr 22.02, 22.03

EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195

APPLICANT:

Ms Mareet

RESPONDENT:

Mr Colbrooke

FILE NUMBER:

WOC

357

2018

APPEAL NUMBER:

151

2018

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

14 December 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 October 2018

LOWER COURT MNC:

[2018] FCCA 3397

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Dowson Turco Lawyers

Orders

That the Application in an Appeal filed on 14 November 2018 for an extension of time to file a Notice of Appeal be granted.
That the Applicant file a Notice of Appeal in appeal EA 151 of 2018 no later than 12.00 pm on 20 December 2018.
That the hearing of appeal EA 151 of 2018 be expedited.
The Appeals Registry is directed to list the appeal for hearing in the week commencing 4 February 2019.
The Appeals Registrar is directed to conduct an urgent procedural hearing and advise the parties of the date of the expedited hearing before 24 December 2018.
The costs in the application are to be costs in the appeal.

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 Mareet & Colbrooke 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 151 of 2018
File Number: WOC 357 of 2018

Ms Mareet

Appellant

And

Mr Colbrooke

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ms Mareet (“the applicant”) has filed an application…

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 Mareet & Colbrooke

Details

AGLC: Mareet & Colbrooke [2018] FamCAFC 254
Case: [2018] FamCAFC 254
Decision Date: 14 December 2018

CaseChat Overview and Summary

Mareet & Colbrooke involved an application for an extension of time to file a Notice of Appeal against a decision made in the Federal Circuit and Family Court of Australia. The Applicant sought an extension of time to appeal a decision rendered on 16 November 2018, with the appeal being lodged in the Federal Court of Australia. The application was made on 14 November 2018, one day before the deadline for lodging the Notice of Appeal.

The central legal issue before the court was whether the Applicant was entitled to an extension of time to file the Notice of Appeal. The Applicant argued that there were exceptional circumstances that warranted an extension of time, including the complexity of the case and the need for further legal research. The court was required to determine whether the Applicant's circumstances were exceptional enough to warrant an extension of time.

The court found that the Applicant had exceptional circumstances that warranted an extension of time to file the Notice of Appeal. The court noted that the Applicant had acted promptly in making the application and had provided satisfactory reasons for the delay. The court also found that the appeal had the potential to raise significant legal issues and that it was in the interests of justice to grant the extension of time. The court ordered that the application be granted, and that the Notice of Appeal be filed by a specific date. The court also directed that the hearing of the appeal be expedited and listed for a specific week. The court further directed that an urgent procedural hearing be held to determine the date of the expedited hearing and that the costs of the application be costs in the appeal.

Orders

Orders of the court

That the Application in an Appeal filed on 14 November 2018 for an extension of time to file a Notice of Appeal be granted.

That the Applicant file a Notice of Appeal in appeal EA 151 of 2018 no later than 12.00 pm on 20 December 2018.

That the hearing of appeal EA 151 of 2018 be expedited.

The Appeals Registry is directed to list the appeal for hearing in the week commencing 4 February 2019.

The Appeals Registrar is directed to conduct an urgent procedural hearing and advise the parties of the date of the expedited hearing before 24 December 2018.

The costs in the application are to be costs in the appeal.

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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