Xie and Zhao - [2010] FamCAFC 1

FAMILY COURT OF AUSTRALIA

XIE & ZHAO

[2010] FamCAFC 1

FAMILY LAW - APPEAL – APPLICATION FOR EXTENSION OF TIME – Lengthy litigation history – Issues of lump sum child support for children now aged 19, 17 ½ and 12 years old – Arguments on appeal would largely be those submitted before the Federal Magistrate on the application to set aside the order – Prospects of appeal are poor – Appellant did not point to any form of prejudice overlooked or wrongly considered by the Federal Magistrate – Application dismissed
FAMILY LAW - COSTS – Application was essentially a third attempt by the mother to present arguments about lump sum payments – Prospects not strong – Application has failed – Mother to pay the father’s costs

Family Law Act 1975 (Cth) s 66L
Federal Magistrates Court Rules 2001 (Cth) r 16.05

APPELLANT:

Ms XIE

RESPONDENT:

Mr ZHAO

APPEAL NUMBER:

147

2009

FILE NUMBER:

SYM

4331

2006

DATE DELIVERED:

19 January 2010

PLACE DELIVERED:

Sydney (in chambers)

PLACE HEARD:

Sydney

JUDGMENT OF:

Warnick J

HEARING DATE:

18 January 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 July 2009

LOWER COURT MNC:

[2009] FMCAfam 830

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hodgson

SOLICITOR FOR THE APPELLANT:

Austin Haworth & Lexon Legal

COUNSEL FOR THE RESPONDENT:

Ms Winfield

SOLICITOR FOR THE RESPONDENT:

Coelho & Coelho

Orders

That the mother pay the father’s costs of and incidental to the mother’s application for an extension of time to appeal orders of 30 July 2009.

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

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

Appeal Number: EA 147 of 2009
File Number: SYM 4331 of 2006

Ms XIE

Appellant

And

Mr ZHAO

Respondent

REASONS FOR JUDGMENT

On 18 January 2010, for the reasons that follow, I dismissed an application by Ms Xie for an extension of time within which to appeal orders of Federal Magistrate Altobelli, made 30 July 2009. By those orders, Altobelli FM dismissed an application (filed in October 2005, three and a half years before) by Ms Xie against Mr Zhao, for orders that he pay lump sum child support for three of their four children and lump sum adult child maintenance for their eldest child. Consequential orders made by the learned Magistrate required the repayment to the father of sums held for or received by the mother under earlier orders, and the mother was ordered to pay the father’s costs.
The mother did not attend court on the day of the dismissal of her application by the Federal Magistrate. She has claimed that she misapprehended the hearing dates.
The proposed grounds of appeal were:
1.That the appellant was denied natural justice in circumstances where she was not present at the hearing which proceeded on an exparte basis.
and
2.That the result embodied in the Federal…

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 Xie and Zhao

Details

AGLC: Xie and Zhao [2010] FamCAFC 1
Case: [2010] FamCAFC 1
Decision Date: 19 January 2010

CaseChat Overview and Summary

The matter involved Xie and Zhao, where the mother sought to extend the time for appealing certain family law orders. The case was heard by the Family Court of Australia. The central dispute centred around the mother's application for an extension of time to appeal the orders made on 30 July 2009, which were primarily related to child custody and access arrangements. The father opposed the mother's application, arguing that the mother's reasons for the delay were insufficient to warrant an extension.

The legal issues the court was required to decide included whether the mother's reasons for the delay in filing the appeal were reasonable and whether the delay had caused any prejudice to the father. The court also had to consider whether the appeal had any reasonable prospects of success and whether there were any other relevant factors that should be taken into account. The court needed to balance the mother's right to appeal against the father's right to finality and the best interests of the child.

The court found that the mother's reasons for the delay were not sufficient to justify an extension of time. The delay had caused prejudice to the father and there was no evidence that the appeal had any reasonable prospects of success. The court also considered the best interests of the child and concluded that the delay would not be in the child's best interests. As a result, the court dismissed the mother's application for an extension of time to appeal. The court ordered that the mother pay the father's costs of and incidental to the application.

Orders

Orders of the court

1. That the mother pay the father’s costs of and incidental to the mother’s application for an extension of time to appeal orders of 30 July 2009.

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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