PRESCOTT & FINLEY - [2019] FamCAFC 211

FAMILY COURT OF AUSTRALIA

PRESCOTT & FINLEY

[2019] FamCAFC 211

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant requires an extension of time – Where the applicant was incarcerated at the time the judgment was delivered –Where the applicant failed to receive a copy of the judgment – Where no current Notice of Address for Service was filed by the applicant – Where the applicant was three months late in filing the appeal – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.02

Bethke & Bethke (2019) FLC 93-906; [2019] FamCAFC 106
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; [1996] HCA 25
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Tormsen and Tormsen (1993) FLC 92-392; [1993] FamCA 151

APPELLANT:

Mr Prescott

RESPONDENT:

Ms Finley

THE INDEPENDENT CHILDREN’S

LAWYER

Mark Whelan Lawyer Pty Ltd

FILE NUMBER:

CRC

327

2015

APPEAL NUMBER:

EAA

104

2019

DATE DELIVERED:

8 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

5 November 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 January 2019

LOWER COURT MNC:

[2019] FCCA 82

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Bryant McKinnon Lawyers by telephone

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Stolier

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mark Whelan Lawyer Pty Ltd

Orders

The Application in an Appeal for an extension of time in which to appeal from the orders of Judge Terry made 23 January 2019 is dismissed.

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 Prescott & Finley 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EAA 104 of 2019
File Number: CRC 327 of 2015

Mr Prescott

Appellant

and

Ms Finley

Respondent

and

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 23 January 2019 a judge of the Federal Circuit Court made parenting and property orders in contested proceedings between Ms Finley (“the mother”) and Mr Prescott (“the father”). The parenting proceedings concerned the twin daughters of the parties who were born in 2010.
The hearing before the primary judge ran for three days in July 2017 and on 16 August 2017. Final submissions were made on 22 February 2018 and the judgment was delivered…

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 PRESCOTT & FINLEY

Details

AGLC: PRESCOTT & FINLEY [2019] FamCAFC 211
Case: [2019] FamCAFC 211
Decision Date: 8 November 2019

CaseChat Overview and Summary

Prescott and Finley were before the court in relation to an appeal against the orders made by Judge Terry on 23 January 2019. The appeal was seeking an extension of time to lodge the appeal against the earlier orders. The case was heard in the Federal Court of Australia. The primary legal issue before the court was whether the applicant should be granted an extension of time to lodge the appeal against the orders of Judge Terry, and if so, what the appropriate period of extension should be.

The court considered the relevant law and principles concerning extensions of time for appeals. The court noted that extensions of time are not granted lightly and that the applicant must demonstrate exceptional circumstances justifying the extension. The court examined the evidence and arguments presented by the applicant and found that the applicant had not demonstrated sufficient grounds to warrant an extension of time. The court was not satisfied that the applicant had acted with due diligence or that there were any exceptional circumstances that warranted an extension of time.

As a result, the court dismissed the application for an extension of time. The court noted that the decision was not a reflection on the merits of the appeal itself, but rather a decision on the procedural aspect of the timing of the appeal. 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 for an extension of time in which to appeal from the orders of Judge Terry made 23 January 2019 is 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

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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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