STANLEY & BAILEY - [2014] FamCAFC 21

FAMILY COURT OF AUSTRALIA

STANLEY & BAILEY

[2014] FamCAFC 21

FAMILY LAW – APPLICATION IN AN APPEAL – Application for extension of time to file notice of appeal – Where the respondent opposed the extension of time being granted - Where the delay is insubstantial and adequately explained – Where the applicant did not contribute to the delay - Where the applicant’s solicitor took full responsibility – Where there are sufficient potential grounds of appeal which have merit – Where the refusal of leave is likely to cause an injustice – Application granted.

FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the respondent sought that the applicant pay costs on an indemnity basis – Where there are no extraordinary features to justify an order for indemnity costs – Where the applicant seeks the indulgence of the court - The applicant to pay the costs of the respondent at an amount fixed by the court.

Marsden & Winch (2009) FamCAFC 152
Rice & Asplund (1979) FLC 90-725
Roe & Creswick (3012) FLC 93-554
SPS & PLS (2008) FLC 93-363

APPELLANT:

Ms Stanley

RESPONDENT:

Mr Bailey

FILE NUMBER:

BRC

5936

2012

APPEAL NUMBER:

2013

DATE DELIVERED:

12 February 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

12 February 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 November 2013

LOWER COURT MNC:

[2013] FCCA 1928

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Tolton

SOLICITOR FOR THE APPELLANT:

AMH Lawyers

SOLICITOR FOR THE RESPONDENT:

Parker Family Law

Orders

The applicant is granted an extension of time until 4.00pm on 21 February 2014 to file a notice of appeal against order (1) made on 22 October 2013 and the orders made 4 November 2013 by Judge Demack.
The applicant pay the costs of the respondent fixed at $3,500.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stanley & Bailey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 77 of 2013
File Number: BRC 5936 of 2012

Ms Stanley

Appellant

And

Mr Bailey

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

In an application in an appeal filed 12 December 2013 the applicant mother asks that the time to file a notice of appeal be extended. The orders from which she seeks to appeal were made by Judge Demack on 22 October 2013 and 4 November 2013. It can be seen that the delay in filing the application is insubstantial.
The father opposes an extension being granted.
The relevant order made on 22 October 2013 is paragraph 1:
That the injunction issue restraining both parents from taking the children [B] born … 2001 and [H] born … 2004 to any psychiatrist or therapist until further Order of the Court.
The orders made on 4 November 2013 were as follows:
1.That…

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.

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Details

AGLC: STANLEY & BAILEY [2014] FamCAFC 21
Case: [2014] FamCAFC 21
Decision Date

CaseChat Overview and Summary

Ms Stanley appeals against a decision made by Judge Demack on 4 November 2013 and seeks an extension of time to file a notice of appeal against that decision and the orders made by Judge Demack on 22 October 2013. The application for an extension of time was opposed by Mr Bailey. The application before Judge Demack was filed on 4 September 2013 and sought both interim and final orders that time the children spend with the father be supervised and that the children not see the father unsupervised and that a family report be prepared. The father asked that the application be dismissed and for costs.

The court considered the principles in relation to an extension of time, including the explanation for the delay, the possible merits of the appeal, and potential prejudice to the respondent which cannot be mitigated by an order for costs. The court found that the delay was adequately explained and that there were sufficient potential grounds of appeal which have merit. The court concluded that the refusal of leave to appeal is likely to cause an injustice to the mother.

The court also considered the costs order and determined that the mother should pay the costs of the respondent fixed at $3,500. The court found that there were no extraordinary features to justify an order for indemnity costs.

The court granted the mother an extension of time to file a notice of appeal against the orders made by Judge Demack on 22 October 2013 and 4 November 2013. The mother is required to pay the costs of the respondent fixed at $3,500.

Orders