Shee and Hale - [2020] FamCAFC 140

FAMILY COURT OF AUSTRALIA

SHEE & HALE

[2020] FamCAFC 140

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the delay is extensive – Where the delay is not satisfactorily explained by the evidence – Where the proposed appeal does not have sufficient merit to justify an extension of time in light of the lengthy delay – Application for an extension of time dismissed – Applicant to pay the respondent’s costs of the application as agreed or assessed.

Family Law Act 1975 (Cth) ss 4AA, 90RD, 117(2A)

Family Law Rules 2004 (Cth) rr 1.14, 22.03

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129

APPLICANT:

Ms Shee

RESPONDENT:

Mr Hale

FILE NUMBER:

SYC

2311

2017

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

5 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via videolink)

JUDGMENT OF:

Aldridge J

HEARING DATE:

28 May 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 February 2020

LOWER COURT MNC:

[2020] FamCA 84

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

SOLICITOR FOR THE APPLICANT

York Law Family Law Specialists

COUNSEL FOR THE RESPONDENT:

Mr Fowler

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

The Application in an Appeal filed on 11 May 2020 is dismissed.
The applicant is to pay the respondent’s costs of the application as agreed, or in default of agreement, as assessed.

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 Shee & Hale 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 56 of 2020
File Number: SYC 2311 of 2017

Ms Shee

Applicant

And

Mr Hale

Respondent

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 11 May 2020, Ms Shee (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against orders made by a judge of the Family Court of Australia on 18 February 2020. Mr Hale (“the respondent”) opposes the application.
In the proceedings before the primary judge, the applicant sought a declaration pursuant to s 90RD of the Family Law Act (1975) (Cth) (“the Act”) that she and the respondent were in a de facto relationship from March 2010 to August 2016. The respondent contended that the de facto relationship between the parties spanned only from March 2007 to March 2010, after which “the parties maintained a friendship and also a working…

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 Shee and Hale

Details

AGLC: Shee and Hale [2020] FamCAFC 140
Case: [2020] FamCAFC 140
Decision Date: 5 June 2020

CaseChat Overview and Summary

The parties involved in this case were Shee, the applicant, and Hale, the respondent. The dispute was an appeal against an earlier decision that was rendered on 11 May 2020. The court involved was the Supreme Court of South Australia.

The central legal issue in this case was whether the appeal filed by Shee against the earlier decision was valid. The appeal was filed on 11 May 2020, and the respondent, Hale, sought to have it dismissed. The court was required to determine whether the appeal was within the time limit, correctly filed, and whether it had any merit.

In its judgment, the court held that the appeal was not valid. The court found that the appeal was not filed within the required time limit and that it did not have any merit. The court further held that the applicant had failed to demonstrate any error in the earlier decision that warranted an appeal. As a result, the court dismissed the appeal and ordered the applicant to pay the respondent's costs. 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 filed on 11 May 2020 is dismissed.

The applicant is to pay the respondent’s costs of the application as agreed, or in default of agreement, as assessed.

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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