Somers & Ettridge (No 3) - [2019] FamCAFC 234

FAMILY COURT OF AUSTRALIA

SOMERS & ETTRIDGE (NO 3)

[2019] FamCAFC 234

FAMILY LAW – APPEAL – EXTENSIONS OF TIME – Where the applicant provides no satisfactory explanation for the failure to file Notices of Appeal within time – Where the proposed appeals have no prospect of success – Where there is a lack of bona fides on the part of the applicant – Where it is beyond doubt that the interests of justice demand that the application for extensions of time be dismissed – Application dismissed.

FAMILY LAW – COSTS – Where the respondent seeks costs – Orders made for written submissions to be provided by both parties.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.03

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Yein & Zihao (2019) FLC 93-889; [2019] FamCAFC 20

APPLICANT:

Mr Somers

RESPONDENT:

Ms Ettridge

FILE NUMBER:

MLC

11262

2015

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

4 December 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

3 September 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 September 2017,
29 October 2018,
20 November 2018,
7 December 2018

LOWER COURT MNC:

[2017] FamCA 1173
[2018] FamCA 863
[2018] FamCA 943
[2018] FamCA 1042

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Paterson

SOLICITOR FOR THE RESPONDENT:

Carew Counsel Pty Ltd

Order of 25 November 2019

The Application in an Appeal filed on 7 June 2019 be dismissed.

Order of 4 December 2019

Within 14 days of the date hereof the respondent file and serve written submissions in relation to the issue of costs.
Within 14 days of the receipt of the said written submissions the applicant file and serve written submissions in response.
Within seven days of the receipt of the responding submissions the respondent file and serve any reply thereto.

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 Somers & Ettridge (No 3) 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 MELBOURNE

Appeal Number: SOA 31 of 2019
File Number: MLC 11262 of 2015

Mr Somers

Applicant

And

Ms Ettridge

Respondent

REASONS FOR JUDGMENT

Introduction

By Application in an Appeal filed on 7 June 2019, Mr Somers (“the applicant”) sought extensions of time to file Notices of Appeal from a declaration made on 15 September 2017 by Thornton J, 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 Somers & Ettridge (No 3)

Details

AGLC: Somers & Ettridge (No 3) [2019] FamCAFC 234
Case: [2019] FamCAFC 234
Decision Date: 4 December 2019

CaseChat Overview and Summary

The appeal in Somers & Ettridge (No 3) arose from a family law matter, where the applicant sought extensions of time to file Notices of Appeal. The case was heard by the Family Court of Australia, and subsequently, the Full Court of the Family Court of Australia was called upon to decide the appeal. The primary issue before the court was whether to grant the applicant's request for extensions of time, given the absence of a satisfactory explanation for the late filing, the lack of prospects for success on the proposed appeals, and the apparent lack of bona fides on the part of the applicant.

The court examined the circumstances under which the Notices of Appeal were not filed within the prescribed time, and found that the applicant had provided no reasonable explanation for the delay. The court further considered the merits of the proposed appeals, concluding that they had no prospect of success. Additionally, the court assessed the applicant's conduct, finding that it lacked the necessary good faith required for such applications. The court held that the interests of justice demanded that the application for extensions of time be dismissed. Consequently, the appeal was dismissed.

In light of the dismissal of the appeal, the respondent sought costs. The court ordered that written submissions be provided by both parties regarding the issue of costs. The final orders were yet to be made at the time of the judgment.

Orders