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NASHA & BELINCHON

NASHA & BELINCHON

Case [2018] FamCAFC 38 5 March 2018

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FAMILY COURT OF AUSTRALIA

NASHA & BELINCHON

[2018] FamCAFC 38

FAMILY LAW – APPLICATION IN AN APPEAL – EXTEND TIME TO FILE APPEAL – Where the applicant has not provided an adequate explanation for the failure to file a Notice of Appeal within time – Where there appears to be a substantial issue to be raised on appeal – Where there is prejudice to each of the parties depending on the outcome – Where the interests of justice require that an extension of time be allowed – Application granted.

FAMILY LAW – COSTS – Where the applicant is being granted an indulgence because of his failure to file a Notice of Appeal within time – Costs ordered in favour of the respondent.

FAMILY LAW – COSTS CERTIFICATES – Where both parties apply for costs certificates pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 (Cth) to cover the costs associated with a previous hearing – Where the parties submit that the previous proceedings were “discontinued” and “a new hearing” ordered which was not caused by the “neglect, default or improper act” of either of the parties – Where the granting of a costs certificate is entirely discretionary – Where the time available at the previous hearing was used to clarify issues and shorten the time required to hear the application for an extension of time – Where the discretion should not be exercised in favour of the parties – Application dismissed.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) s 10(3)

Family Law Regulations 1984 (Cth) reg 21M(2) and (5)
Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2001 (Cth) r 16.05(2)(a)

Coulton v Holcombe (1986) 162 CLR 1
Cundy v ACT Cross Country Club Inc [2009] FCA 1461
Gallo v Dawson (1990) 93 ALR 479
Lindner and Lindner (1985) FLC 91-638
Maxwell Coulson and Gosford Meats Pty Ltd [1985] 7 FCR 109
Re Morris; Morris v Maroudas (1986) 66 ALR 699
Redshaw and Redshaw (1989) FLC 92-053
Suttor v Gundowda (1950) 81 CLR 418
Water Board v Moustakas (1988) 180 CLR 491
Wilkes and Wilkes (1981) FLC 91-060

APPLICANT:

Mr Nasha

RESPONDENT:

Ms Belinchon

FILE NUMBER:

MLC

1906

2016

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

5 March 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

26 October 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT ORDER DATE:

7 November 2016

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bacon

SOLICITOR FOR THE APPLICANT:

Manby and Scott Lawyers

COUNSEL FOR THE RESPONDENT:	Ms Tynan
SOLICITOR FOR THE RESPONDENT	Taussig Cherrie Fildes Lawyers

Orders

The time for the applicant to file a Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal against the order of Judge Curtain made on 7 November 2016 be extended to the close of business on Monday 26 March 2018.
The applicant pay the costs of the respondent of and incidental to the…

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 NASHA & BELINCHON

Details

AGLC: NASHA & BELINCHON [2018] FamCAFC 38
Case: [2018] FamCAFC 38
Decision Date: 5 March 2018

CaseChat Overview and Summary

The case of NASHA & BELINCHON involved an application to extend the time for filing a Notice of Appeal against a family law order made by Judge Curtain on 7 November 2016. The applicant, who had not filed the Notice of Appeal within the required timeframe, sought an extension to file the Notice of Appeal by 26 March 2018. The application also addressed the issue of costs and the granting of costs certificates for a previous hearing. The Family Court was required to determine whether the applicant provided an adequate explanation for the delay in filing the Notice of Appeal, and whether the interests of justice warranted an extension of time. Additionally, the Court had to decide on the costs implications of the applicant's failure to file the Notice of Appeal within time, and whether the parties were entitled to costs certificates for a previous hearing.

The Court considered the applicant's explanation for the delay in filing the Notice of Appeal, which was found to be inadequate. However, the Court recognised that there was a substantial issue to be raised on appeal and that the outcome would prejudice each party involved. The interests of justice were deemed to require an extension of time, and the Court granted the application to extend the time for filing the Notice of Appeal to 26 March 2018. Regarding costs, the Court ordered the applicant to pay the costs of the respondent for the application in an appeal filed on 13 July 2017, to be assessed if not agreed upon. The Court also dismissed the joint oral application for costs certificates in relation to the hearing on 14 September 2017, as the discretion to grant such certificates was not exercised in favour of the parties.

In summary, the Court granted an extension of time for the applicant to file a Notice of Appeal, ordered the applicant to pay the respondent's costs for the application in an appeal, and dismissed the application for costs certificates in relation to the previous hearing. The form of the order is subject to the entry of the order in the Court's records.

Orders

Orders of the court

The time for the applicant to file a Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal against the order of Judge Curtain made on 7 November 2016 be extended to the close of business on Monday 26 March 2018.

The applicant pay the costs of the respondent of and incidental to the application in an appeal filed on 13 July 2017, such costs to be assessed in default of agreement.

The joint oral application made by the parties for costs certificates in relation to the hearing on 14 September 2017 be 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

Full text does not contain this section.

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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Citations

AGLC Citation

NASHA & BELINCHON [2018] FamCAFC 38

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Cases cited in this decision · 11 of 11 shown

Cundy v ACT Cross Country Club Inc
[2009] FCA 1461 Para 4

…In Cundy v ACT Cross Country Club Inc [2009] FCA 1461, Perram J introduced the notion that the subsection can be read as including the aborting of a proceedings, but plainly those words do not appear in the subsection. However, I do agree with his Honour’s comment that, “[t]he authorities which deal with the circu…
Gallo v Dawson
[1990] HCA 30

…Coulton v Holcombe (1986) 162 CLR 1 Cundy v ACT Cross Country Club Inc [2009] FCA 1461 Gallo v Dawson (1990) 93 ALR 479 Lindner and Lindner (1985) FLC 91-638 Maxwell Coulson and Gosford Meats Pty Ltd [1985] 7 FCR 109 Re Morris; Morris v Maroudas (1986) 66 ALR 699 Redshaw and Redshaw (1989) FLC 92-053 Suttor v Gundowda (…
Water Board v Moustakas
[1988] HCA 12 Para 5

…s purely a question of construction, or of law, then an appellate court can entertain the argument despite it not being raised in the court below. In Water Board v Moustakas (1988) 180 CLR 491, the High Court said this (at 497): More than once it has been held by this Court that a point cannot be raised for the first time upon a…
Jess v Scott
[1986] FCA 473 Para 1

…s of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects o…
Coulton v Holcombe
[1986] HCA 33 Para 5

…tice to entertain the point, but otherwise the rule is strictly applied. (Also see Suttor v Gundowda (1950) 81 CLR 418, at 438 and Coulton v Holcombe (1986) 162 CLR 1, at 7).…
Re Morris; Morris v Maroudas
[1986] FCA 223 Para 3

…the hearing has commenced ( Lindner and Lindner (1985) FLC 91-638). However, there are authorities that hold otherwise ( Re Morris; Morris v Maroudas (1986) 66 ALR 699, and Redshaw and Redshaw (1989) FLC 92-053), and in particular that where a matter is adjourned, the hearing cannot be described as being “discontinu…
Trade Practices Commission v David Jones (Australia) Pty Ltd and ors
[1985] FCA 373 Para 3

…through no fault of any party, and is adjourned, that satisfies the requirement of the subsection ( Maxwell Coulson and Gosford Meats Pty Ltd [1985] 7 FCR 109) as long as it can be said that the hearing has commenced ( Lindner and Lindner (1985) FLC 91-638). However, there are authorities that hold otherwis…
Mitchelson v Mitchelson
[1979] FCA 48 Para 1

…o consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested rig…
Suttor v Gundowda Pty Ltd
[1950] HCA 35 Para 5

…may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. (Also see Suttor v Gundowda (1950) 81 CLR 418, at 438 and Coulton v Holcombe (1986) 162 CLR 1, at 7).…
[1973] 2 NZLR 86
[1973] 2 NZLR 86 Para 1

…, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always…
Vilenius v Heinegar
(1962) 36 ALJR 200 Para 1

…piry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the ap…

Legislation cited in this decision · 5

Family Law Regulations 1984 (Cth)
21M(2) 2 mentions (from Para 2)
Federal Circuit Court Rules 2001 (Cth)
16.05(2)(a) 2 mentions (from Para 1)
Federal Proceedings (Costs) Act 1981 (Cth)
10(3) 2 mentions (from Para 4)
Family Law Act 1975 (Cth)
1 mention
Family Law Rules 2004 (Cth)
1 mention (from Para 3)