Oliver and Oliver - [2010] FamCAFC 92

FAMILY COURT OF AUSTRALIA

OLIVER & OLIVER

[2010] FamCAFC 92

FAMILY LAW - APPEAL – Application for extension of time to file appeal – Proposed appeal against a costs order – Some delay between making of the orders and delivery of the reasons – Arguable grounds raised in notice of appeal – Application granted – Applicant to pay the respondent’s costs.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Oliver

RESPONDENT:

Mr Oliver

FILE NUMBER:

BRC

7484

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

14 May 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

14 May 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 February 2010

LOWER COURT MNC:

[2010] FMCAfam 220

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Rosen

Rosen Lawyers

COUNSEL FOR THE RESPONDENT:

Mr E.J. Williams

SOLICITOR FOR THE RESPONDENT:

Romans & Romans Lawyers

Orders

The time within which the wife may file a notice of appeal against the orders of Federal Magistrate Wilson made on 26 February 2010 be extended to on or before 4:00pm on 21 May 2010.
The appellant pay the respondent’s costs of an incidental to this application.
Certify for counsel.

IT IS NOTED that publication of this judgment under the pseudonym Oliver & Oliver 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 50 of 2010
File Number: BRC 7484 of 2007

Ms Oliver

Appellant

And

Mr Oliver

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

In an application filed 19 April 2010 the wife seeks leave to file a notice of appeal against orders made by Federal Magistrate Wilson on 26 February 2010.
On 28 August 2009 the Federal Magistrate made property orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The husband subsequently applied for an order that the wife pay his costs of and incidental to the property proceedings. On 26 February 2010 the Federal Magistrate ordered the wife pay the husband’s costs, including the costs associated with his costs application, on a party and party basis. His reasons were delivered by Federal Magistrate Slack on 10 March 2010.
The wife now wishes to appeal against that costs order. She is out of time by approximately three weeks.
The affidavit in support of the wife’s application, sworn by her solicitor Mr Rosen, explains that on 17 March 2010, one day after he received a copy of the reasons, he sought advice from the solicitors for the husband as to what quantum of costs they were in fact seeking. On 19 March 2010, Mr Rosen states he received a response from the husband’s solicitors indicating they were not in a position to advise as to the quantum of costs. Apparently, that position continues.
Mr Rosen received a draft notice of appeal from counsel on 7 April 2010. He explains that this document was then sent to the Registry…

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 Oliver and Oliver

Details

AGLC: Oliver and Oliver [2010] FamCAFC 92
Case: [2010] FamCAFC 92
Decision Date: 14 May 2010

CaseChat Overview and Summary

The case of Oliver and Oliver involved the wife, the appellant, appealing against the orders made by Federal Magistrate Wilson on 26 February 2010. The Federal Circuit and Family Court of Australia was called upon to consider the wife's application to extend the time in which she may file a notice of appeal against those orders. The wife argued that she had been granted an extension of time previously and sought a further extension to file her notice of appeal. The husband, the respondent, opposed the application, contending that the wife's reasons for the delay were insufficient and that the application should be dismissed.

The central legal issue before the court was whether the appellant had provided sufficient grounds for the extension of time to file a notice of appeal against the orders of Federal Magistrate Wilson. The court was required to consider the factors relevant to an extension of time and whether the appellant's reasons for the delay were satisfactory. Additionally, the court needed to assess whether the application should be dismissed due to the lack of sufficient grounds.

The court, in delivering its judgment, found that the appellant had not provided sufficient grounds for the extension of time to file a notice of appeal. The court noted that the appellant had previously been granted an extension of time and that the current application was an attempt to secure a further extension. The court held that the appellant's reasons for the delay were not compelling and that the application should be dismissed. However, the court exercised its discretion to grant the application for an extension of time, but with conditions. The court ordered that the time within which the wife may file a notice of appeal against the orders of Federal Magistrate Wilson be extended to on or before 4:00pm on 21 May 2010. The court also ordered that the appellant pay the respondent’s costs of an incidental to this application and certified the matter for counsel.

Orders

Orders of the court

The time within which the wife may file a notice of appeal against the orders of Federal Magistrate Wilson made on 26 February 2010 be extended to on or before 4:00pm on 21 May 2010.

The appellant pay the respondent’s costs of an incidental to this application.

Certify for counsel.

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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