YIN & LANDON - [2018] FamCAFC 232

FAMILY COURT OF AUSTRALIA

YIN & LANDON

[2018] FamCAFC 232

FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Where the wife asserted that a decree of nullity made two years ago was void for actual fraud – Where the wife had filed an Initiating Application in the first instance court – Where the wife had withdrawn that Initiating Application – Where there was no application to adduce further evidence on the appeal – Where an application to adduce further evidence would obliterate the distinction between the original and appellate jurisdiction of the Court – CDJ v VAJ (1998) 197 CLR 172, discussed – Where the further evidence was more properly directed to contested proceedings at first instance – Where such proceedings are the subject of specific legislative grants of jurisdiction and power – Application dismissed.

Family Law Act 1975 (Cth) ss 4(b)(iii), 51, 93A, 113, 117(1)
Family Law Rules 2004 (Cth) rr 4.27(c), 4.29(c), 17.02(1)(b)

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bant & Clayton [2014] FamCAFC 108
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Clone Pty Ltd v Players Pty Ltd (In liq) (Receivers and Managers Appointed) (2018) 353 ALR 24; [2018] HCA 12
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31
Miller and Miller (1983) FLC 91-328; [1983] FamCA 26
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38

APPLICANT:

Ms Yin

RESPONDENT:

Mr Landon

FILE NUMBER:

BRC

5410

2016

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

28 November 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

16 November 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 December 2016

LOWER COURT MNC:

[2016] FamCA 1068

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Jeff Horsey Solicitor

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

Orders

The Application in an Appeal filed on 5 October 2018 seeking an extension of time to file a Notice of Appeal in appeal number NOA 84 of 2018 be dismissed.
Each party bear their own costs of and incidental to the appeal.

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 Yin & Landon 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 84 of 2018
File Number: BRC 5410 of 2016

Ms Yin

Applicant

And

Mr…

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 YIN & LANDON

Details

AGLC: YIN & LANDON [2018] FamCAFC 232
Case: [2018] FamCAFC 232
Decision Date: 28 November 2018

CaseChat Overview and Summary

The case of Yin & Landon involved an application for an extension of time to file a Notice of Appeal in the Federal Court of Australia. The applicants, Yin and Landon, sought an extension in appeal number NOA 84 of 2018, with the application being filed on 5 October 2018. The application was brought before the court for consideration, with the primary issue being whether the applicants should be granted an extension beyond the statutory time limits for filing their appeal.

The court was tasked with determining whether the applicants had provided sufficient justification for the delay in filing their Notice of Appeal and whether the delay had caused any prejudice to the respondent. The applicants argued that the delay was due to unforeseen circumstances that were beyond their control, and that the respondent had not been prejudiced by the delay. The court needed to weigh these arguments against the statutory requirements and principles of fairness that underpin the appeal process.

In dismissing the application, the court found that the applicants had not demonstrated any exceptional circumstances that warranted an extension of time. The court held that the statutory time limits for filing an appeal are clear and must be adhered to, unless there are compelling reasons to the contrary. The applicants' arguments regarding unforeseen circumstances were not deemed sufficient to warrant an extension, and the court found no evidence of prejudice to the respondent due to the delay. Consequently, the application for an extension of time was dismissed, and each party was ordered to bear their own costs of and incidental to the appeal. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Application in an Appeal filed on 5 October 2018 seeking an extension of time to file a Notice of Appeal in appeal number NOA 84 of 2018 be dismissed.

Each party bear their own costs of and incidental to the appeal.

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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