Olman & Teitzel - [2018] FamCAFC 11

FAMILY COURT OF AUSTRALIA

OLMAN & TEITZEL

[2018] FamCAFC 11

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks orders in effect extending the time to file four Notices of Appeal against interim orders – Where there is no reasonable explanation for the failure to file within time – Where none of the proposed appeals have any merit or any reasonable chance of success – Where there is prejudice to both parties whichever way the application is decided – Where the justice of the case lies in dismissing the application – Application dismissed.

FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the application is opposed – Where the applicant has been wholly unsuccessful in the proceedings – Where there are circumstances which justify an order for costs being made – Where the costs ordered should be on a party/party basis even though there are some concerning aspects to this matter which go close to justifying an order for indemnity costs – Costs ordered as sought by the respondent.

Family Law Act 1975 (Cth) s111B

Family Law (Child Abduction Convention) Regulations 1986
Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Olman

RESPONDENT:

Ms Teitzel

FILE NUMBER:

MLC

547

2017

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

29 January 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

29 January 2018

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Carne

SOLICITOR FOR THE RESPONDENT:

Westminster Lawyers

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT ORDERS MADE:

20 January 2017,
14 February 2017,
7 April 2017,
27 October 2017

Orders

The application in an appeal filed on 15 December 2017 be dismissed.
The applicant father pay the costs of the respondent mother fixed in the sum of THREE THOUSAND TWO HUNDRED AND EIGHTY-THREE DOLLARS AND SIXTY CENTS ($3,283.60).

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 Olman & Teitzel 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).

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

Appeal Number: SOA 96 of 2017
File Number: MLC 547 of 2017

Mr Olman

Applicant

And

Ms Teitzel

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

The application before the court is an application in an appeal filed by Mr Olman (“the father”) on 15 December 2017.
In that application the father, in effect, seeks an extension of time to file four Notices of Appeal…

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 Olman & Teitzel

Details

AGLC: Olman & Teitzel [2018] FamCAFC 11
Case: [2018] FamCAFC 11
Decision Date: 29 January 2018

CaseChat Overview and Summary

The case involves an appeal application by the father, Olman, seeking an extension of time to file four Notices of Appeal against interim orders made in a family law matter. The application was heard and determined by the Family Court of Australia. The mother, Teitzel, opposed the application and sought her costs in the event of the application being dismissed.

The primary legal issue before the court was whether to grant the father's application to extend the time to file four Notices of Appeal against interim orders. The court had to consider the reasonableness of the father's explanation for the delay, the merits and prospects of success of the proposed appeals, and the potential prejudice to the mother if the application were to be granted. The court noted that the father had failed to provide a reasonable explanation for the delay, and none of the proposed appeals had any merit or reasonable chance of success. The court found that there was prejudice to the mother whichever way the application was decided, but the justice of the case lay in dismissing the application.

The court dismissed the father's application to extend the time to file four Notices of Appeal against interim orders. The court found that the father had not provided a reasonable explanation for the delay, and none of the proposed appeals had any merit or reasonable chance of success. The court ordered the father to pay the mother's costs of the application in the sum of $3,283.60. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The application in an appeal filed on 15 December 2017 be dismissed.

The applicant father pay the costs of the respondent mother fixed in the sum of THREE THOUSAND TWO HUNDRED AND EIGHTY-THREE DOLLARS AND SIXTY CENTS ($3,283.60).

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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