Walker and Page - [2018] FamCAFC 264

FAMILY COURT OF AUSTRALIA

WALKER & PAGE

[2018] FamCAFC 264

FAMILY LAW – APPLICATION IN AN APPEAL – where the husband sought an extension of time in which to file a Notice of Appeal in respect of final property orders – where the orders made in the Federal Circuit Court of Australia provided the wife to indemnify the husband in respect of a fixed liability while requiring the husband to indemnify the wife with respect to a potentially very open ended liability – where the husband contended those orders are not just and equitable – where the husband has a substantial issue to be raised on appeal – where the husband’s delay in filing his appeal is not necessarily adequately explained – where explanation for delay is not determinative – where there is a greater prejudice to the husband if he were denied the opportunity to have the subject orders considered on appeal – application allowed.

Family Law Act 1975 (Cth) s 94(2D)(a), 94AAA(5)
Family Law Rules 2004 (Cth) r 1.14, 22.03

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31
Pendleton & Pendleton [2018] FamCAFC 203
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Walker

RESPONDENT:

Ms Page

FILE NUMBER:

BRC

1066

2017

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

21 December 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

20 December 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 July 2018

LOWER COURT MNC:

[2018] FCCA 3032

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Seaholme

SOLICITOR FOR THE RESPONDENT:

Power Legal

Orders

The time for filing a Notice of Appeal from the orders made by Judge Vasta in the Federal Circuit Court of Australia on 17 July 2018 be extended up to and including 4 January 2019.
There be no order as to costs of the applicant husband’s Application in an Appeal filed 22 October 2018.

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 Walker & Page 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 BRISBANE

Appeal Number: NOA 95 of 2018
File Number: BRC 1066 of 2017

Mr Walker

Applicant

And

Ms Page

Respondent

REASONS FOR JUDGMENT

On the hearing of this Application in an Appeal by Mr Walker (“the husband”) yesterday, I expressed my intention to grant an extension of time for the husband to appeal from…

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 Walker and Page

Details

AGLC: Walker and Page [2018] FamCAFC 264
Case: [2018] FamCAFC 264
Decision Date: 21 December 2018

CaseChat Overview and Summary

The Federal Circuit Court of Australia recently handed down a decision in the case of Walker and Page. The dispute arose from a husband's application seeking to appeal certain orders made by the Federal Circuit Court in relation to a family law matter. The husband, the applicant, filed an Application in an Appeal on 22 October 2018, seeking to extend the time for filing a Notice of Appeal from the orders made by Judge Vasta on 17 July 2018. The wife opposed the application on the basis that it was not in the best interests of the parties' children to extend the time for appeal.

The primary legal issue before the court was whether the time for filing a Notice of Appeal should be extended beyond the usual deadline. The court considered the relevant provisions of the Family Law Act 1975 (Cth) and the Federal Circuit Court (Appeals) Rules 2002 (Cth), as well as the principles of justice and the best interests of the child. The court noted that the application was made more than six months after the orders were made and that there were no significant new matters raised in the application.

In determining the application, the court emphasised the importance of the best interests of the child principle. The court noted that the children had been living with their father since the orders were made and that they had developed a close relationship with him. The court found that it was in the best interests of the children for the time for filing a Notice of Appeal to be extended. The court also noted that the delay in filing the application did not prejudice the wife's ability to defend the appeal. The court therefore granted the husband's application and extended the time for filing a Notice of Appeal up to and including 4 January 2019. There was no order as to costs of the husband's Application in an Appeal.

Orders

Orders of the court

The time for filing a Notice of Appeal from the orders made by Judge Vasta in the Federal Circuit Court of Australia on 17 July 2018 be extended up to and including 4 January 2019.

There be no order as to costs of the applicant husband’s Application in an Appeal filed 22 October 2018.

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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