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 | of | 2013 |
| APPEAL NUMBER: | EA | 60 | of | 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…
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- AGLC
- ADAIR & ADAIR [2018] FamCAFC 184
- Case
- [2018] FamCAFC 184
- Decision Date
CaseChat Overview and Summary
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
1.
The appeal against the orders of Justice Rees made on 18 April 2018 be reinstated.
2.
The Appellant file and serve the Appeal Books by 4pm 25 September 2018.
3.
The Appellant file and serve the Summary of Argument and List of Authorities by 23 October 2018.
4.
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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