SALTWICK & SALTWICK

[2011] FamCAFC 166

FAMILY COURT OF AUSTRALIA

SALTWICK & SALTWICK [2011] FamCAFC 166

FAMILY LAW - APPLICATION IN AN APPEAL – Application for an extension of time – Where there is no proper explanation for the delay of some 7 months – Where if the appeal had merit the fact that the husband attempted to file a notice of appeal then barely out of time would have been a significant factor in his favour – Where the appeal lacked merit and where the prejudice to the wife outweighed the question of delay – Application dismissed.

FAMILY LAW - COSTS – No order made as to costs.

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

APPELLANT: Mr Saltwick

RESPONDENT: Ms Saltwick

FILE NUMBER: BRC 7513 of 2008

APPEAL NUMBER: NA 47 of 2011

DATE DELIVERED: 19 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 18 July 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 29 October 2010

LOWER COURT MNC: [2010] FMCAfam 1176

REPRESENTATION

SOLICITOR FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: Mr Galloway

SOLICITOR FOR THE RESPONDENT: Butler McDermott Lawyers

Orders

1. The husband’s application for leave to appeal the orders of Federal Magistrate Coates made 29 October 2010 is dismissed.

2. There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Saltwick & Saltwick 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 BRISBANE

Appeal Number: NA 47 of 2011
File Number: BRC 7513 of 2008

Mr Saltwick

Appellant

And

Ms Saltwick

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 22 June 2011 the husband filed an application in an appeal asking for leave to file an appeal out of time from the orders of Federal Magistrate Coates made 29 October 2010.

2. The orders sought to be appealed relate to the parties property proceedings. The husband wishes to appeal orders 1, 2 and 4. Those orders are in the following terms:

   1.That pursuant to s.78 of the Family Law Act 1975 (as amended) the wife be declared to be the sole owner of the property situated at [P], … (“the [P] property”) with effect as and from 28 August 2001.

   2.That in order to give effect to the said declaration the husband forthwith transfer to the wife all his right title and interest in the [P] property.

   …

   4.That save as is otherwise provided herein the wife retain to the exclusion of the husband all property and financial resources currently in her name, possession or control including:-

   (a)The sale proceeds of motor sailor “[O]”;

   (b)The ride-on mower;

   (c)The 1979 [T] utility;

   (d)The 2004 [H]convertible;

   (e)All investments held by the wife; and

   (f)Personal property.

3. It should also be added that the following orders were made providing some property to the husband:

   3.That pursuant to s.79 save as is otherwise provided herein the husband retain to the exclusion of the wife all…