TIPTON & KNIGHTLY - [2014] FamCAFC 52

FAMILY COURT OF AUSTRALIA

TIPTON & KNIGHTLY

[2014] FamCAFC 52

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for leave to file a notice of cross appeal out of time – Application of the principles in Gallo & Dawson - Where the delay is adequately explained – Where there is no prejudice to the other party – Where to allow the application would not delay the appeal - Application allowed.

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

Clivery & Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Ms Tipton

RESPONDENT:

Mr Knightley

FILE NUMBER:

LEC

553

2011

APPEAL NUMBER:

2013

DATE DELIVERED::

2 April 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

2 April 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 November 2013

LOWER COURT MNC:

[2013] FCCA 1956

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Universal Law

COUNSEL FOR THE RESPONDENT:

In person

Orders

That the applicant be given leave to file a Notice of Appeal endorsed as a cross-appeal in relation to the orders made by Judge Demack made on 22 November 2013, before 4:00 pm 11 April 2014.
There be no order for costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tipton & Knightley has been approved by the Chief Justice 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 80 of 2013
File Number: LEC 553 of 2011

Ms Tipton

Applicant

And

Mr Knightley

Respondent

REASONS FOR JUDGMENT

This is an application by Ms Tipton for leave to file a notice of cross-appeal out of time.
On 22 November 2013 Judge Demack made orders relating to the parties’ child, C (aged six). On 20 December 2013 Mr Knightley filed a notice of appeal against those orders. Ms Tipton filed the present application on 17 February 2014.
Rule 22.08 of the Family Law Rules 2004 (Cth) (“the Rules”) requires that a cross-appeal be filed 14 days after the notice of appeal is served on the cross-appellant. Ms Tipton was served with Mr Knightley’s notice of appeal on 14 January 2014. Ms Tipton is therefore some three weeks out of time. I note that Ms Tipton’s solicitor had attended the Brisbane family law registry and attempted to file the notice of cross-appeal on 29 January 2014, being one day out of time.
The affidavit filed in support of the application by the solicitor for Ms Tipton explains that on 14 January 2014 her client was served with the notice of appeal filed 20 December 2013. Service was affected by Registered Post and outside the 14 day limit prescribed by r 22.05 of the Rules.
Ms Tipton advised the solicitor shortly after service that day.
The child of the parties gave his mother the draft index to the appeal on 23…

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 TIPTON & KNIGHTLY

Details

AGLC: TIPTON & KNIGHTLY [2014] FamCAFC 52
Case: [2014] FamCAFC 52
Decision Date: 2 April 2014

CaseChat Overview and Summary

Tipton & Knightly is a case concerning an appeal in family law matters. The applicant sought leave to file a notice of cross-appeal out of time. The original dispute was between the parties, Tipton and Knightly, and the matter was before the Family Court of Australia. The applicant argued that there were circumstances justifying the delay in filing the cross-appeal and that allowing the cross-appeal would not prejudice the respondent or delay the appeal. The court had to decide whether to grant the application for leave to file a notice of cross-appeal out of time.

The legal issues that the court had to decide were whether the delay in filing the notice of cross-appeal was adequately explained, whether the respondent would be prejudiced if the cross-appeal was allowed, and whether allowing the cross-appeal would delay the appeal. The court had to consider the principles established in Gallo & Dawson and determine whether they were applicable in this case. The applicant argued that the delay was adequately explained, that there would be no prejudice to the respondent, and that allowing the cross-appeal would not delay the appeal.

The court found that the delay in filing the notice of cross-appeal was adequately explained, and that there was no prejudice to the respondent if the cross-appeal was allowed. The court also found that allowing the cross-appeal would not delay the appeal. The court held that the principles in Gallo & Dawson applied in this case, and that the application for leave to file a notice of cross-appeal out of time should be granted. The court allowed the application and gave the applicant leave to file a notice of cross-appeal in relation to the orders made by Judge Demack on 22 November 2013. The court made no order for costs.

In summary, the court found in favour of the applicant and granted the application for leave to file a notice of cross-appeal out of time. The court found that the delay was adequately explained, that there would be no prejudice to the respondent, and that allowing the cross-appeal would not delay the appeal. The court applied the principles established in Gallo & Dawson and found that they were applicable in this case. The court gave the applicant leave to file a notice of cross-appeal before a specified time and date, and made no order for costs.

Orders

Orders of the court

1. That the applicant be given leave to file a Notice of Appeal endorsed as a cross-appeal in relation to the orders made by Judge Demack made on 22 November 2013, before 4:00 pm 11 April 2014.

2. There be no order for costs.

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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