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FLAST Case Review : Merriett & Merriett [2018] FamCAFC 225 (22 November 2018)

This was an application in an for an extension of time in which to file a Notice of Appeal.  The Court considered the explanation for the delay and the merits of the proposed appeal (prospects for success) and in the interests of Justice dismissed the Application.

The case is interesting in that it also involved consideration of a judgement from the Circuit Family Court of the Republic of Ireland in relation to property matters.


AT [13] The principles to be applied in an application for an extension of time are set out in the well-known case of Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480:

...The grant of an extension of time under this rule is not automatic.

The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.

The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262.

This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.

In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185.

When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.

It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.

It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

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Case : Edmunds & Edmunds [2018] FamCAFC 121 (6 July 2018)

This was a Family Law matter about an lodged by the wife six years after expired relating to .


The parties commenced cohabitation in 1992 and married in 1993. They separated in late 2006 or early 2007. They were divorced on 16 January 2009.

The parties had three children who were born in 1994, 1997 and 2000. The youngest child was almost 17 years old at the time of the orders of the primary judge.

Issues :

1) Whether the primary judge made a final determination instead of assessing whether the wife had a prima facie case;

Ground 1 asserts:

Her Honour did not assess whether the Appellant had a prima facie case to make at trial when put at its highest, and thus failed to exercise the discretion at section 44(3) of the Family Law Act 1975: instead Her Honour:

     Decided or prejudged the case under section 79(4) instead of assessing whether the Appellant had a prima facie case worth pursuing;

2) Whether the primary judge failed to assess the wife’s case at its highest;

3) Whether the primary judge erred in finding that the wife had a weak prima facie case;

4) Where the primary judge erred by not considering whether the wife had a real probability of obtaining an order for property settlement which fell short of the outcome sought by her but which was more favourable than her present legal entitlements to the property;

5) Whether the primary judge made a material error in respect of a finding about the husband’s post-separation contributions to superannuation;

6) Whether the primary judge took an irrelevant consideration into account, namely the costs of the proceedings, in assessing the wife’s prima facie case;

7) Whether the primary judge erred in failing to find that the wife’s reliance on an agreement in relation to the parties’ property was a reasonable explanation for her delay in instituting property proceedings;

8) Whether the primary judge erred in her findings as to the prejudice caused to the husband if leave is granted

HELD : Appeal allowed.


Where leave is required to appeal an order made pursuant to s 44(3) of the Family Law Act 1975 (Cth)

Where the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered and where substantial injustice would result if leave were refused.

HELD : The appellant is granted leave pursuant to s 44(3) to commence proceedings under s 79 of the Family Law Act 1975 (Cth).


The Court grants to the appellant wife a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by her in relation to the appeal.

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