MULDOON & CARLYLE - [2011] FamCAFC 135

FAMILY COURT OF AUSTRALIA

MULDOON & CARLYLE

[2011] FamCAFC 135

FAMILY LAW - APPEAL – Application to extend time to appeal – Where the delay in filing the notice of appeal was adequately explained – Where the prejudice to the mother was limited to the costs and inconvenience of the appeal – Where there are proper grounds to be argued on appeal – Application allowed.

FAMILY LAW - COSTS – Costs reserved to the Full Court.

Family Law Act 1975 (Cth)

Clivery & Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Muldoon

RESPONDENT:

Ms Carlyle

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRF

1472

2004

APPEAL NUMBER:

2011

DATE DELIVERED:

9 June 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

9 June 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 February 2011

LOWER COURT MNC:

[2011] FamCA 51

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Clutterbuck

SOLICITOR FOR THE APPELLANT:

Sanderson & Parks

SOLICITOR FOR THE RESPONDENT:

Family Law Doyle Keyworth & Harris

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The applicant father have leave to file a notice of appeal out of time and the time within which the appeal may be filed be extended to 4.00pm on 17 June 2011.
The costs of and incidental to this application be reserved to the Full Court.
That a directions date be fixed with the Appeals Registrar.

IT IS NOTED that publication of this judgment under the pseudonym Muldoon & Carlyle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 44 of 2011
File Number: BRF 1472 of 2004

Mr Muldoon

Appellant

And

Ms Carlyle

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

On 16 May 2011 the father filed an application in an appeal seeking leave to appeal out of time the orders made by O’Reilly J on 11 February 2011. To comply with the Rules it was necessary to file the appeal on or before 11 March 2011. The orders sought to be appealed are final parenting orders.
The mother opposes the father’s application. Obviously, should leave not be granted, the father will be unable to appeal.
Three accompanying affidavits have been filed in support of the father’s application. First, an affidavit of Ms Curtis, a law clerk in the father’s solicitors firm. Second, an affidavit of the father explaining the delay in filing the notice of appeal. The third affidavit is from the father’s solicitor annexing a letter from the father’s doctor.

History

The parties were married in September 1986 and separated in February 2004.
The parties’ children, L Muldoon born in February 2001 and S Muldoon born in July 2003 were the subject of the orders. Those children now aged are ten and seven.
The trial judge’s orders provided for equal shared parental responsibility for decisions relating…

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 MULDOON & CARLYLE

Details

AGLC: MULDOON & CARLYLE [2011] FamCAFC 135
Case: [2011] FamCAFC 135
Decision Date: 9 June 2011

CaseChat Overview and Summary

The matter of Muldoon & Carlyle involved an appeal in family law proceedings, where the father sought to extend the time to file a notice of appeal. The Family Court was tasked with determining whether the delay in filing the notice of appeal was adequately explained, whether the delay caused significant prejudice to the mother, and if there were proper grounds for the appeal. The father argued that the delay was due to a series of misunderstandings and administrative errors, and that the mother had not suffered significant prejudice other than the costs and inconvenience of the appeal. The court considered the father’s explanation for the delay, the extent of any prejudice to the mother, and the merits of the appeal itself.

The court found that the delay in filing the notice of appeal was adequately explained, as the father had provided a detailed account of the administrative errors and misunderstandings that led to the late filing. The court also noted that the prejudice to the mother was limited to the costs and inconvenience of the appeal, which did not outweigh the importance of allowing the father to pursue his appeal. Additionally, the court was satisfied that there were proper grounds to be argued on appeal, as the father had identified significant issues that warranted further judicial consideration. Therefore, the court allowed the father’s application to file the notice of appeal out of time and extended the time for filing the appeal.

The court further determined that the costs of and incidental to the application should be reserved to the Full Court for determination. This decision ensures that the financial implications of the application are addressed comprehensively by a higher court, taking into account the broader context of the legal proceedings. Finally, the court set a directions date with the Appeals Registrar to facilitate the next steps in the appeal process. This meticulous approach ensures that the proceedings move forward in an orderly and efficient manner, while also providing a clear path for the resolution of the underlying family law issues.

Orders

Orders of the court

The applicant father have leave to file a notice of appeal out of time and the time within which the appeal may be filed be extended to 4.00pm on 17 June 2011.

The costs of and incidental to this application be reserved to the Full Court.

That a directions date be fixed with the Appeals Registrar.

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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