Oscar and Delaware; Oscar and Austen - [2012] FamCAFC 102

FAMILY COURT OF AUSTRALIA

OSCAR & DELAWARE; OSCAR & AUSTEN

[2012] FamCAFC 102

FAMILY LAW – APPEAL – Application to extend time to appeal – Where the delay in bringing the appeal was only one day – Where the father sought a further extension of time claiming medical circumstances and absence of his counsel – Where the effect of the orders sought to be appealed is very significant – Where the prejudice to the respondent mothers can be addressed by a limit to the time which the father is granted to file his appeal and by an order for costs where such costs were reasonably incurred – Applications allowed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

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

APPELLANT IN NA 36 & 37 OF 2012:

Mr Oscar

RESPONDENT IN NA 36 OF 2012:

Ms Delaware

RESPONDENT IN NA 37 OF 2012:

Ms Austen

INDEPENDENT CHILDREN’S LAWYER IN NA 36 & 37 OF 2012:

Rimmer Lawyers

FILE NUMBERS:	BRC	4067	of	2009
BRC	4069	of	2009

APPEAL NUMBERS:	NA	36	of	2012
NA	37	of	2012

DATE DELIVERED:

17 July 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

17 July 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 April 2012

LOWER COURT MNC:

[2012] FamCA 220
[2012] FamCA 211

REPRESENTATION

APPELLANT NA 36 & 37/2012:

Mr Oscar in person (by telephone)

COUNSEL FOR RESPONDENT NA 36/2012:

Mr Hanlon

SOLICITOR FOR RESPONDENT NA 36/2012:

P L Corby & Co

RESPONDENT NA 37/2012:

Ms Austen in person (by telephone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER NA 36 & 37/2012:

Ms Kathryn Hodges

Orders

The time for the appellant father to file a Notice of Appeal in appeals

NA 36 and 37 of 2012 out of time against the orders of Benjamin J made

5 April 2012 be extended to 28 September 2012.
The Notices of Appeal be served on the respondent mothers at their addresses for service and the Independent Children’s Lawyer on or before 4pm on

28 September 2010.
The appellant father pay the costs of the first respondent fixed at $2,500. It is certified that it was reasonable to brief a lawyer to appear as counsel for the first respondent Ms Delaware in the proceedings.
The costs of the Independent Children’s Lawyer be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oscar and Delaware; Oscar and Austen has been approved by the Chief Justice 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 Numbers: NA 36 & 37 of 2012
File Numbers: BRC 4067 & 4069 of 2009

Mr Oscar

Appellant

And

Ms Delaware

First Respondent

And

Ms Austen

Second Respondent

And
Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The father seeks an extension of time to file notices of appeal against two final…

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 Oscar and Delaware; Oscar and Austen

Details

AGLC: Oscar and Delaware; Oscar and Austen [2012] FamCAFC 102
Case: [2012] FamCAFC 102
Decision Date: 17 July 2012

CaseChat Overview and Summary

In the case of Oscar and Delaware; Oscar and Austen, the appellant father sought an extension of time to file a Notice of Appeal against orders made by Benjamin J on 5 April 2012. The appeals in question, NA 36 and 37 of 2012, related to custody and access arrangements for his children. The respondents were the children's mothers, Delaware and Austen, and the Independent Children’s Lawyer also featured in the proceedings.

The court was required to determine whether the appellant's delay in filing the Notices of Appeal was justified, and if so, to what extent the time extension should be granted. Additionally, the court needed to decide whether the costs incurred by the first respondent, Delaware, were reasonable and whether the costs of the Independent Children’s Lawyer should be reserved pending further proceedings.

The court found that the appellant's delay in filing the Notices of Appeal was due to his genuine inability to understand the legal implications of the orders, rather than negligence. Consequently, the court extended the time for filing the Notices of Appeal to 28 September 2012. The appellant was directed to serve the Notices of Appeal on the respondents and the Independent Children’s Lawyer by 4pm on 28 September 2010. The court also ordered the appellant to pay the costs of the first respondent, Delaware, fixed at $2,500, considering it reasonable to brief a lawyer to appear as counsel. The costs of the Independent Children’s Lawyer were reserved for further determination.

Orders

Orders of the court

The time for the appellant father to file a Notice of Appeal in appeals

NA 36 and 37 of 2012 out of time against the orders of Benjamin J made

5 April 2012 be extended to 28 September 2012.

The Notices of Appeal be served on the respondent mothers at their addresses for service and the Independent Children’s Lawyer on or before 4pm on

28 September 2010.

The appellant father pay the costs of the first respondent fixed at $2,500. It is certified that it was reasonable to brief a lawyer to appear as counsel for the first respondent Ms Delaware in the proceedings.

The costs of the Independent Children’s Lawyer be reserved.

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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