Mawson and Coates - [2014] FamCAFC 186

FAMILY COURT OF AUSTRALIA

MAWSON & COATES

[2014] FamCAFC 186

FAMILY LAW – APPLICATION IN AN APPEAL – APPLICATION FOR AN EXTENSION OF TIME TO FILE A NOTICE OF APPEAL - Where the applicant seeks to appeal final property consent orders – Where the consent orders were made by a judge of the Federal Circuit Court without submissions by the parties following a conciliation conference with a registrar – Application of the principles in Gallo v Dawson (1990) 93 ALR 479 - Where the delay is short and adequately explained – Where the proposed appeal concerns the principles enunciated in Harris v Caladine (1991) 172 CLR 84 – Where the respondent was on notice of the applicant’s issue with the consent orders shortly after they were made – Where any prejudice to the respondent can be compensated by an order for costs – Application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2011 (Cth)
Federal Circuit Court Act 1999 (Cth)

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45

Gallo v Dawson (1990) 93 ALR 479
Harris v Caladine (1991) 172 CLR 84
Stanford v Stanford (2012) 247 CLR 108

APPELLANT:

Ms Mawson

RESPONDENT:

Mr Coates

FILE NUMBER:

BRC

2929

2013

APPEAL NUMBER:

2014

DATE DELIVERED:

1 October 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

23 September 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

27 June 2014

LOWER COURT MNC:

Not applicable

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Cassandra Pullos (solicitor)

SOLICITOR FOR THE APPELLANT:

Cassandra Pullos Lawyers

COUNSEL FOR THE RESPONDENT:

Greg Shoebridge

SOLICITOR FOR THE RESPONDENT:

Greenhalgh Pickard Solicitors

Orders made on 23 September 2014

The applicant is granted an extension of time until 4.00pm on 26 September 2014 to file a notice of appeal against the orders of Judge Spelleken made on 27 June 2014.
The applicant pay the respondent’s costs of this application, to be assessed if not agreed.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 41 of 2014
File Number: BRC 2929 of 2013

Ms Mawson

Appellant

And

Mr Coates

Respondent

REASONS FOR JUDGMENT

On 23 September 2014 I made orders granting the applicant, Ms Mawson, an extension of time to file a notice of appeal against orders made by Judge Spelleken on 27 June 2014 and reserved my reasons for judgment. I now provide my reasons for granting the application.
Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a notice of appeal must be filed “within 28 days after the date the order appealed from was made”. The application was filed on 18 August 2014, less than one month out of time.
Rule…

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 186
Decision Date: 1 October 2014

CaseChat Overview and Summary

In the Family Court of Australia at Brisbane, Ms Mawson sought an extension of time to file a notice of appeal against the property consent orders made by Judge Spelleken of the Federal Circuit Court on 27 June 2014. The application was filed on 18 August 2014, well beyond the 28-day period stipulated by Rule 22.03 of the Family Law Rules 2004. Ms Mawson's application was predicated on an adequate explanation for the delay, the proposed grounds of appeal being of some merit, and that any prejudice to the respondent could be compensated by an order for costs.

The court considered the nature of the delay, which was attributed to confusion over who had made the consent orders, difficulties in communication with the court, a change of solicitors for Ms Mawson, and issues in accessing the court file. These factors, while not exhaustive, provided an adequate explanation for the delay. The proposed grounds of appeal concerned whether the judge had failed to properly consider the relevant factors in determining whether the consent orders were just and equitable, as required by s 90SM(4) of the Family Law Act 1975 (Cth). This contention was deemed to have some merit, particularly in light of the principles enunciated in Harris v Caladine (1991) 172 CLR 84.

The court found that any prejudice to Mr Coates could be compensated by an order for costs. The respondent was already on notice of Ms Mawson's issue with the consent orders shortly after they were made, and therefore, there was no undue prejudice to the respondent. The court granted the application for an extension of time to file the notice of appeal.

The orders made on 23 September 2014 granted Ms Mawson an extension of time until 4:00 pm on 26 September 2014 to file a notice of appeal against the orders of Judge Spelleken made on 27 June 2014. Ms Mawson was ordered to pay Mr Coates's costs of this application, to be assessed if not agreed.

Orders