ONGAL & MATERNS - [2010] FamCAFC 165

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS

[2010] FamCAFC 165

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for an extension of time to file a Notice of Appeal – where the application was filed 11 months after the time to appeal expired – whether there are adequate reasons explaining the delay – whether there is a substantial issue to be raised on appeal – consideration of the hardship or injustice to the parties – not satisfied an extension of time is necessary to enable the Court to do justice between the parties – application dismissed.

FAMILY LAW - COSTS – application for costs by the respondent – where the applicant has been wholly unsuccessful – financial circumstances of the parties – order for costs made.

Family Law Act 1975 (Cth) s 117

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Ongal

RESPONDENT:

Ms Materns

FILE NUMBER:

ADC

2107

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

26 July 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

26 July 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 May 2009

LOWER COURT MNC:

[2009] FMCAfam 476

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Lee

SOLICITOR FOR THE RESPONDENT:

Julie Margaret

Orders

That the Application in an Appeal filed by the father on 17 May 2010 be dismissed.
That the father pay to the Trust Account of the mother’s solicitor the sum of SIX HUNDRED AND SIXTY DOLLARS [$660.00] by way of costs, such sum to be paid within 28 days of the date hereof.

IT IS NOTED that publication of this judgment under the pseudonym Ongal & Materns 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 ADELAIDE

Appeal Number: SA 29 of 2010
File Number: ADC 2107 of 2007

Mr Ongal

Applicant

And

Ms Materns

Respondent

EX TEMPORE REASONS

I have before me an Application in an Appeal filed by the father on 17 May 2010, seeking an extension of time to file a Notice of Appeal. Mr Ongal filed an affidavit in support of that application and he has also filed a draft Notice of Appeal. He seeks, in effect, to appeal against orders made by Federal Magistrate Brown on 15 May 2009.
A Notice of Appeal must be filed within 28 days after the date the order appealed from was made. However, a party may apply to the Court to extend this time limit, and that is what Mr Ongal has done. The 28-day time period expired, obviously, towards the middle of June 2009, yet Mr Ongal has only filed his Application in an Appeal on 17 May 2010. He has thus taken 11 months or thereabouts to file this application.
The principles applicable to determining such an application are…

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

AGLC: ONGAL & MATERNS [2010] FamCAFC 165
Case: [2010] FamCAFC 165
Decision Date: 26 July 2010

CaseChat Overview and Summary

The case involves an application for an extension of time to file a Notice of Appeal in a family law matter. The appellant, the father, applied 11 months after the time to appeal had expired. The primary judge had made orders concerning the care of the parties' children, and the father sought to appeal these orders. The mother opposed the application for an extension of time and also applied for costs. The court was required to decide whether there were adequate reasons for the delay in filing the Notice of Appeal, whether there was a substantial issue to be raised on appeal, and whether an extension of time was necessary to do justice between the parties.

The court considered the reasons for the delay and found that the father had failed to provide a satisfactory explanation. The father argued that the delay was due to his financial difficulties and his belief that the appeal had no reasonable prospects of success. However, the court noted that the father had not been entirely truthful about his financial situation and that his belief about the prospects of the appeal did not justify the delay. The court also considered whether there was a substantial issue to be raised on appeal. While the father argued that the primary judge had erred in making certain orders, the court found that these arguments were speculative and not well-founded.

In light of the above, the court dismissed the application for an extension of time. The court held that the delay was inexcusable and that there was no substantial issue to be raised on appeal. The court also noted that the delay had caused hardship to the mother and the children. The court further considered the mother's application for costs and found that the father had been wholly unsuccessful in his application. The court ordered the father to pay $660 to the mother's solicitor within 28 days.

Orders

Orders of the court

That the Application in an Appeal filed by the father on 17 May 2010 be dismissed.

That the father pay to the Trust Account of the mother’s solicitor the sum of SIX HUNDRED AND SIXTY DOLLARS [$660.00] by way of costs, such sum to be paid within 28 days of the date hereof.

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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