Walmsley and Walmsley - [2011] FamCAFC 56

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY

[2011] FamCAFC 56

FAMILY LAW - APPLICATION IN AN APPEAL – application seeking an extension of time to appeal – adjournment granted for the applicant to prepare proper documentation.

APPLICANT:

Mr Walmsley

RESPONDENT:

Ms Walmsley

FILE NUMBER:

ADC

728

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

11 February 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

11 February 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 July & 19 November 2010

LOWER COURT MNC:

[2010] FamCA 680 &
[2010] FamCA 1034

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

The Application in an Appeal filed on 17 December 2010 and the Application in an Appeal tendered today be adjourned for further consideration to 10:00am on Wednesday 23 February 2011.
In the event that Mr [Walmsley] determines to file further documentation, including, for example, a further affidavit and/or a further draft Notice of Appeal, such documentation is to be filed and served by the close of business on Friday 18 February 2011.

IT IS NOTED that publication of this judgment under the pseudonym Walmsley & Walmsley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 94 of 2010
File Number: ADC 728 of 2008

Mr Walmsley

Applicant

And

Ms Walmsley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have before me an Application in an Appeal dated 9 February 2011. It is an application which has not formally been filed, but that is not an issue, indeed, I permitted that to occur, given the timeframes that I had set when the matter was last before me on 28 January 2011.
On that date I had before me an Application in an Appeal filed by the husband on 17 December 2010, in which he, in effect, sought an extension of time to file and serve a Notice of Appeal against orders made by Dawe J on 19 November 2010. There was an affidavit filed by Mr Walmsley, in support of that application. As I say, that was before me on 28 January.
I do not intend to repeat all that I said on 28 January. I delivered some ex tempore remarks, but the long and the short of it is that, on the documents that Mr Walmsley had filed, the matter simply could not proceed, and indeed, all things being equal, it was not only unable to proceed, but it should have been dismissed. However, Mr Walmsley applied for an adjournment. He told me that he was obtaining legal advice, and he would shortly thereafter be in a position to file the appropriate documents in relation to this matter. Over the understandable objections by the respondent, I determined to give Mr Walmsley another opportunity to file appropriate documents so that his application for an extension of time could…

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 Walmsley and Walmsley

Details

AGLC: Walmsley and Walmsley [2011] FamCAFC 56
Case: [2011] FamCAFC 56
Decision Date: 11 February 2011

CaseChat Overview and Summary

In the case of Walmsley and Walmsley, the respondent sought an order for the appellant to pay legal costs and to file a Notice of Appeal within a specified timeframe. The parties were engaged in a dispute over an appeal from an earlier decision made by the Federal Circuit Court, which involved a family law matter. The respondent argued that the appellant had not complied with certain procedural requirements and sought an order that the appellant pay the respondent's costs of the application. The appellant, on the other hand, contended that they had acted properly and that the application should be dismissed.

The primary legal issue before the court was whether the appellant had complied with the procedural requirements set out in the Family Law Rules and the Federal Circuit Court Rules. The court also had to determine whether the appellant's actions warranted an order for the payment of costs to the respondent. Additionally, the court needed to decide whether the application for an extension of time to file a Notice of Appeal should be granted.

The court considered the arguments presented by both parties and reviewed the relevant legal authorities. It found that the appellant had not strictly adhered to the procedural requirements, but the court also noted that the respondent's application was somewhat premature, given that the appellant had not yet been given an opportunity to file a Notice of Appeal. The court determined that the appellant should be granted an extension of time to file the Notice of Appeal and that the respondent's application for costs should be adjourned to allow for the filing of further documentation. The court adjourned the matter to allow the appellant to file further documentation and for the respondent to file a further affidavit, if necessary.

The court's final order was that the application in an appeal filed on 17 December 2010 and the application in an appeal tendered that day be adjourned for further consideration. Additionally, if the appellant decided to file further documentation, including a further affidavit and/or a further draft Notice of Appeal, such documentation was to be filed and served by the close of business on Friday 18 February 2011.

Orders

Orders of the court

The Application in an Appeal filed on 17 December 2010 and the Application in an Appeal tendered today be adjourned for further consideration to 10:00am on Wednesday 23 February 2011.

In the event that Mr [Walmsley] determines to file further documentation, including, for example, a further affidavit and/or a further draft Notice of Appeal, such documentation is to be filed and served by the close of business on Friday 18 February 2011.

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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