TIZANI & TIZANI (SECURITY FOR COSTS) - [2014] FamCAFC 174

FAMILY COURT OF AUSTRALIA

TIZANI & TIZANI (SECURITY FOR COSTS)

[2014] FamCAFC 174

FAMILY LAW – APPEAL – Application to extend time to appeal – Delay – Where the respondent conceded the delay is not significant – Where there is sufficient explanation of the delay.

FAMILY LAW – APPEAL – Prejudice – Whether the applicant would suffer prejudice if leave to appeal was not granted – Whether the respondent would suffer prejudice – Where the appeal has merit.

FAMILY LAW – COSTS –– Where it is not appropriate to make a costs order.

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

Gallo v Dawson (1990) 93 ALR 479
Rutherford v Rutherford (1991) FLC 92-255

APPELLANT:

Mr Tizani

RESPONDENT:

Ms Tizani

FILE NUMBER:

SYC

7993

2007

APPEAL NUMBER:

105

2014

DATE DELIVERED:

15 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

27 August 2014

11 September 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 June 2014

LOWER COURT MNC:

[2014] FCCA 876

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Rahme of Mark Rahme & Associates

SOLICITOR FOR THE RESPONDENT:

Mr Brown of Browns The Family Lawyers

Orders

The Application in an Appeal filed on 10 September 2014 by the respondent/wife be dismissed.
The time in which the applicant/husband may file a Notice of Appeal against the orders of Judge Monahan made on 11 June 2014 be extended until
26 September 2014.
The Notice of Appeal attached to the affidavit of Mr Tizani sworn and filed on 8 August 2014 will be deemed to be the Notice of Appeal and is to be filed by no later than 4.00pm on 26 September 2014.

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

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 105 of 2014
File Number: SYC 7993 of 2007

Mr Tizani

Appellant

and

Ms Tizani

Respondent

REASONS FOR JUDGMENT

Mr Tizani (“the husband”) seeks leave to appeal against an order made by Judge Monahan of the Federal Circuit Court on 11 June 2014. The order required the husband to pay to Ms Tizani (“the wife”) the sum of $20,000 as security for her costs in property proceedings brought by the husband pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”).
Leave is required because the husband’s appeal was not filed within the time prescribed by Rule 22.03 of the Family Law Rules 2004 (Cth).
The grant of leave is opposed by the wife.

Background

The parties married in 1986. There is contention between them as to when they finally separated. The wife contends that they separated in

mid-2007 but the husband asserts that they separated finally in April 2013. There are five children of the marriage. The…

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

Case: [2014] FamCAFC 174
Decision Date: 15 September 2014

CaseChat Overview and Summary

The matter before the court involved an appeal by the husband, the applicant, against orders made by Judge Monahan in family law proceedings. The wife, the respondent, had made an application to extend the time in which the husband could file his Notice of Appeal against Judge Monahan's orders. The husband had initially filed a Notice of Appeal on 8 August 2014, but the respondent contended that it was out of time. The husband sought an extension of time and the respondent opposed this, arguing that the delay was not justified and that she would be prejudiced if the application was allowed.

The court needed to determine whether the husband's delay in filing the Notice of Appeal was justified, and if so, whether the respondent would suffer prejudice if the application for an extension of time was granted. The court also had to consider whether the husband's appeal had sufficient merit to warrant an extension of time. In making these determinations, the court had to balance the husband's right to appeal against the respondent's right to have the matter concluded in a timely manner.

The court found that the husband's delay in filing the Notice of Appeal was not significant and that there was sufficient explanation for the delay. The court also found that the respondent would not be prejudiced if the application for an extension of time was granted, and that the husband's appeal had sufficient merit. The court therefore allowed the husband's application for an extension of time and ordered that the Notice of Appeal attached to the husband's affidavit be deemed to be the Notice of Appeal and be filed by no later than 4.00pm on 26 September 2014. The court also dismissed the respondent's application to extend time to appeal. The court did not make a costs order, finding that it was not appropriate to do so in the circumstances of the case.

Orders

Orders of the court

The Application in an Appeal filed on 10 September 2014 by the respondent/wife be dismissed.

The time in which the applicant/husband may file a Notice of Appeal against the orders of Judge Monahan made on 11 June 2014 be extended until

26 September 2014.

The Notice of Appeal attached to the affidavit of Mr Tizani sworn and filed on 8 August 2014 will be deemed to be the Notice of Appeal and is to be filed by no later than 4.00pm on 26 September 2014.

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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