Akhtar & Gaber (No 3) - [2018] FamCAFC 208

FAMILY COURT OF AUSTRALIA

AKHTAR & GABER (NO. 3)

[2018] FamCAFC 208

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time - Where the applicant attempted to file his Notice of Appeal on a number of occasions – Where these attempts were within the time frame – Where for various reasons the attempts to file the Notice of Appeal were unsuccessful and therefore not filed in time – Where correspondence between the applicant and the appeals registry was considered – Where the applicants explanations for the delay in filing the Notice of Appeal are accepted – Where the merits of the appeal are considered in line with the documents available the Court – Where the applicants challenges as to procedural fairness and the primary judges failure to accept evidence are not in dispute – Where there is no substantial issue to be raised on appeal - Where the granting of an extension of time to appeal would be futile – Where injustice would be caused to the respondent mother and children – Application dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth), r 22.03

Akhtar & Gaber (No. 2) [2018] FamCAFC 176
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38

APPLICANT:

Mr Akhtar

RESPONDENT:

Ms Gaber

FILE NUMBER:

PAC

3652

2013

APPEAL NUMBER:

124

2018

DATE DELIVERED:

2 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

9 October 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 July 2018

LOWER COURT MNC:

[2018] FamCA 525

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Kouchoo solicitor

SOLICITOR FOR THE RESPONDENT:

N J Papallo Lawyers

Orders

The application to extend time in which to appeal against the orders of Hogan J made on 16 July 2018 is dismissed.

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 Akhtar & Gaber (No. 3) 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 124 of 2018
File Number: PAC 3652 of 2013

Mr Akhtar

Applicant

And

Ms Gaber

Respondent

REASONS FOR JUDGMENT

On…

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 Akhtar & Gaber (No 3)

Details

AGLC: Akhtar & Gaber (No 3) [2018] FamCAFC 208
Case: [2018] FamCAFC 208
Decision Date: 2 November 2018

CaseChat Overview and Summary

The matter before the court was an appeal by Akhtar against the orders made by Hogan J on 16 July 2018. The application sought an extension of time to appeal, as Akhtar had multiple unsuccessful attempts to file the Notice of Appeal within the allotted time frame. The court was required to consider whether the explanation for the delay was acceptable and whether the granting of an extension would result in injustice to the respondent mother and children.

The legal issues before the court included whether the applicant's explanations for the delay in filing the Notice of Appeal were acceptable and whether the granting of an extension of time would be futile. The court also considered whether there was a substantial issue to be raised on appeal. The applicants challenged procedural fairness and the primary judge's failure to accept evidence, which were not in dispute.

The court accepted the applicants' explanations for the delay, but found that the granting of an extension of time to appeal would be futile. The court also found that there was no substantial issue to be raised on appeal. The court noted that granting an extension of time would cause injustice to the respondent mother and children. Therefore, the application to extend time was dismissed.

The court's order was that the application to extend time in which to appeal against the orders of Hogan J made on 16 July 2018 is dismissed. 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 to extend time in which to appeal against the orders of Hogan J made on 16 July 2018 is dismissed.

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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