RAMSEY & RAMSEY - [2017] FamCAFC 116

FAMILY COURT OF AUSTRALIA

RAMSEY & RAMSEY

[2017] FamCAFC 116

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time to file Notice of Appeal – Where the applicant wishes to file a Notice of Appeal almost four months out of time – Application of principles in Gallo v Dawson (1990) 93 ALR 479 at 480 –– Where the magnitude of delay is considerable and the reason for it unpersuasive – Where the grounds of appeal argue a lack of reasons –Where an extension of time is granted due to the undoubted merit of the appeal – Application allowed.

FAMILY LAW – COSTS – Where the applicant conceded in the event the application was successful it would be appropriate that he pay the respondent’s costs – Costs ordered.

Child Support (Assessment) Act1989 (Cth) s 136(2)(d)

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 22.03

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Ramsey

RESPONDENT:

Ms Ramsey

FILE NUMBER:

SYC

1968

2008

APPEAL NUMBER:

202

2016

DATE DELIVERED:

3 February 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

31 January 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 July 2016

LOWER COURT MNC:

[2016] FCCA 1894

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Beth Oliak

SOLICITOR FOR THE APPLICANT:

KHQ Lawyers

COUNSEL FOR THE RESPONDENT:

Dr Martha Barnett

SOLICITOR FOR THE RESPONDENT:

Monardo Legal

Orders

The time in which to file an appeal against the orders of Judge Scarlett made on 26 July 2016 be extended to 4.00 pm Friday 3 February 2017.
The draft Notice of Appeal received on 15 December 2016 be taken to be the Notice of Appeal.
The applicant to pay the respondent’s costs of and incidental to the application for extension of time, such costs to be agreed or assessed and to be paid within twenty-eight (28) days of agreement or assessment.

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 Ramsey & Ramsey 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: EA 202 of 2016
File Number: SYC 1968 of 2008

Mr Ramsey

Applicant

and

Ms Ramsey

Respondent

REASONS FOR JUDGMENT

Mr Ramsey (“the applicant”) and Ms Ramsey (“the respondent”) entered into a binding child support agreement in March 2010 in relation to their two children,…

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 RAMSEY & RAMSEY

Details

AGLC: RAMSEY & RAMSEY [2017] FamCAFC 116
Case: [2017] FamCAFC 116
Decision Date: 3 February 2017

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Ramsey & Ramsey involved an application by the appellant, Mr Ramsey, to extend the time to file a Notice of Appeal against the orders made by Judge Scarlett on 26 July 2016. The respondent, Mrs Ramsey, contested the application on the grounds of the significant delay and the lack of a persuasive reason for the delay. The court was required to determine whether the application for an extension of time should be granted, considering the principles established in Gallo v Dawson (1990) 93 ALR 479 at 480. The court also had to assess the merits of the grounds of appeal, which centred on the absence of reasons for the orders made by the Judge.

The court noted that while the delay in filing the Notice of Appeal was substantial, the appeal itself had undoubted merit, particularly in relation to the lack of reasons provided by the Judge for the orders made. Given the significance of the grounds of appeal, the court exercised its discretion to grant the extension of time. The court was also mindful of the potential impact on the appellant if the application were to be denied, which would result in the appeal being dismissed on technical grounds. The court concluded that justice would be best served by allowing the application and permitting the appeal to proceed on its merits.

Following the granting of the application, the court ordered that the time to file the Notice of Appeal be extended to 4.00 pm on Friday, 3 February 2017. The draft Notice of Appeal received on 15 December 2016 was deemed to be the Notice of Appeal. Additionally, the court ordered that the appellant pay the respondent’s costs associated with the application for the extension of time, with these costs to be agreed upon or assessed and paid within 28 days of the agreement or assessment. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The time in which to file an appeal against the orders of Judge Scarlett made on 26 July 2016 be extended to 4.00 pm Friday 3 February 2017.

The draft Notice of Appeal received on 15 December 2016 be taken to be the Notice of Appeal.

The applicant to pay the respondent’s costs of and incidental to the application for extension of time, such costs to be agreed or assessed and to be paid within twenty-eight (28) days of agreement or assessment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.