ADAIR & ADAIR - [2018] FamCAFC 184

FAMILY COURT OF AUSTRALIA

ADAIR & ADAIR

[2018] FamCAFC 184

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant failed serve and file the appeal books and transcripts on time – Where the applicant sought an extension of seven days from the respondent – Where the respondent refused – Where the appeal was deemed abandoned as per Rule 22.21 of the Family Law Rules (2004) – Where the applicant seeks a reinstatement of the appeal – Where it was found that the appeal has merit – Where there would be no significant prejudice to the respondent – Appeal reinstated – Orders made to extend time for the filling and serving of appeal books, Summary of Arguments and List of Authorities.

Family Law Act 1975 (Cth)

Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88

APPELLANT:

Mr Adair

RESPONDENT:

Ms Adair

FILE NUMBER:

PAC

3350

2013

APPEAL NUMBER:

2018

DATE DELIVERED:

18 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

18 September 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 April 2018

LOWER COURT MNC:

[2018] FamCA 239

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Jones

SOLICITOR FOR THE RESPONDENT:

Ms Wanschers

Orders

The appeal against the orders of Justice Rees made on 18 April 2018 be reinstated.
The Appellant file and serve the Appeal Books by 4pm 25 September 2018.
The Appellant file and serve the Summary of Argument and List of Authorities by 23 October 2018.
The Respondent file and serve the Summary of Argument and List of Authorities by 20 November 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 Adair & Adair 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 SYDNEY

Appeal Number: EA 60 of 2018
File Number: PAC 3350 of 2013

Mr Adair

Appellant

And

Ms Adair

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 15 May 2018 Mr Adair (“the appellant”) appealed against property settlement orders made by Rees J on 18 April 2018. The appeal having been filed, the matter came before an Appeals Registrar on 10 July 2018 who made orders for the preparation of the appeal, including the preparation and service of the appeal books and the obtaining of the relevant transcript of proceedings. The appellant was ordered to file and serve the appeal books and the transcript by…

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.

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Details

AGLC: ADAIR & ADAIR [2018] FamCAFC 184
Case: [2018] FamCAFC 184
Decision Date: 18 September 2018

CaseChat Overview and Summary

In the Family Court of Australia, Adair sought reinstatement of an appeal against an earlier decision by Justice Rees. The appeal had been abandoned after the appellant failed to serve and file the appeal books and transcripts within the required time frame. The appellant applied for an extension of seven days from the respondent, which was refused. The appeal was deemed abandoned as per Rule 22.21 of the Family Law Rules (2004). The appellant sought reinstatement of the appeal on the basis that it had merit and that there would be no significant prejudice to the respondent.

The central legal issue before the court was whether the appeal should be reinstated despite the procedural default. The court considered the merits of the appeal and whether there would be any significant prejudice to the respondent if the appeal were to be reinstated. The court also considered the reasons for the delay in filing the appeal books and transcripts and whether the appellant had a reasonable excuse for the delay.

The court found that the appeal had merit and that there would be no significant prejudice to the respondent if the appeal were to be reinstated. The court noted that the delay in filing the appeal books and transcripts was due to an administrative error and that the appellant had acted promptly in seeking an extension of time once the error was discovered. The court held that the appeal should be reinstated and made orders extending the time for filing and serving the appeal books, Summary of Argument and List of Authorities.

The court ordered that the appeal against the orders of Justice Rees be reinstated. The appellant was ordered to file and serve the Appeal Books by 4pm 25 September 2018. The appellant was also ordered to file and serve the Summary of Argument and List of Authorities by 23 October 2018. The respondent was ordered to file and serve the Summary of Argument and List of Authorities by 20 November 2018.

Orders

Orders of the court

The appeal against the orders of Justice Rees made on 18 April 2018 be reinstated.

The Appellant file and serve the Appeal Books by 4pm 25 September 2018.

The Appellant file and serve the Summary of Argument and List of Authorities by 23 October 2018.

The Respondent file and serve the Summary of Argument and List of Authorities by 20 November 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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