Babcock & Gulati - [2023] FedCFamC1A 113

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Babcock & Gulati [2023] FedCFamC1A 113

Appeal from: Gulati & Babcock (No 2) [2023] FedCFamC2F 320

Appeal number: NAA 129 of 2023

File number: MLC 10085 of 2019

Judgment of: AUSTIN J

Date of judgment: 13 July 2023

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal registrar granted the wife leave to file a Notice of Appeal out of time – Where the matter was listed to hear the Application in an Appeal filed by the husband to review the appeal registrar’s decision – Where shortly before hearing the wife failed to file the draft index to the appeal book on time – Where the appeal was deemed abandoned – Where the wife made an oral application to re-instate the appeal – Where there is no ostensible merit in the appeal – Oral application to re-instate the appeal dismissed – Where it is unnecessary to consider the husband’s review application – Where the husband sought party/party costs of the interlocutory dispute – Application for costs dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VIII, ss 79, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.14, 13.40, 14.07

Cases cited:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Number of paragraphs: 34

Date of hearing: 13 July 2023

Place: Newcastle (via Microsoft Teams)

Counsel for the Applicant: Mr Oldham

Solicitor for the Applicant: Spectre Linkers

Counsel for the First Respondent: Mr Robinson

Solicitor for the First Respondent: Saunders Family & Estate Lawyers

The Second Respondent: Litigant in person
ORDERS

NAA 129 of 2023
MLC 10085 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS BABCOCK

Applicant

AND:
MR GULATI

First Respondent

B PTY LTD AS TRUSTEE FOR THE BABCOCK FAMILY TRUST

Second Respondent

order made by:

AUSTIN J

DATE OF ORDER:

13 July 2023

THE COURT ORDERS THAT:
1.The applicant’s oral application to re-instate the appeal is dismissed.
2.The first respondent’s application for costs is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Babcock & Gulati has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE

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 Babcock & Gulati

Details

AGLC: Babcock & Gulati [2023] FedCFamC1A 113
Case: [2023] FedCFamC1A 113
Decision Date

CaseChat Overview and Summary

The case of Babcock & Gulati involved a dispute over the reinstatement of an appeal that had been deemed abandoned. The appeal originated from property settlement proceedings under the Family Law Act 1975, which were finalised by a judge of the Federal Circuit and Family Court of Australia. The original time for appealing these orders had expired, but the appellant subsequently sought leave to file a notice of appeal out of time, which was granted. The respondent then filed an application for review of the decision to extend the time for the appeal, which was filed late, necessitating leave to prosecute. The appeal was later deemed abandoned due to the appellant’s failure to file a draft index to the appeal book within the required timeframe.

The legal issues in the case centred on whether the appellant’s delay in filing the draft index to the appeal book was excusable and whether the appeal could be reinstated. The appellant argued that her delay was due to the respondent's review application and that the delay was not prejudicial to the respondent. The court had to consider the reasonableness of the appellant's explanation for the delay, the procedural rules governing the filing of the draft index, and the potential for prejudice to the respondent. The court also needed to determine whether the appeal could be reinstated given the circumstances of the delay and the procedural misstep.

The court found that while the appellant had provided a reasonable explanation for her delay, the rules regarding the filing of the draft index to the appeal book were clear and mandatory. The appellant's failure to comply with these rules, despite having drafted the appeal in time, led the court to conclude that the delay was not excusable. Additionally, the court noted that the appellant's previous delays in the proceedings did not prejudice the respondent. However, the court held that the procedural requirements for filing the draft index were essential and could not be overlooked, even in the absence of prejudice. Consequently, the court denied the application for reinstatement, leading to the abandonment of the appeal.

No further orders were made, and the appeal was deemed abandoned.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the re-instatement application fails, meaning it is unnecessary to consider the other application pending in the appeal before its deemed abandonment, which was originally listed before the Court for hearing today.Background The parties to the appeal were formerly parties to property settlement proceedings under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), finalised by orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 23 March 2023. The time for filing an appeal from those orders expired on 20 April 2023. No appeal was filed within time. Several weeks later, on 11 May 2023, the applicant filed an Application in an Appeal seeking leave to file a Notice of Appeal out of time. The application was heard by the registrar on 22 May 2023 and the relief sought by the applicant was later granted on 9 June 2023. Exercising such leave, the applicant promptly filed her Notice of Appeal on 13 June 2023. On 4 July 2023, the first respondent filed an Application in an Appeal seeking review of the registrar’s decision to extend time for the applicant to appeal. The time for filing the review application expired 21 days after the registrar’s decision was made (r 13.40(2) of the Rules), which was by 30 June 2023. The review application was filed four days late and so the first respondent needed leave to prosecute it. That was the application listed before the Court for hearing today. However, in the meantime, the appeal was deemed abandoned pursuant to r 13.14 of the Rules. To avoid the deemed abandonment of the appeal, the applicant was obliged to file a draft index to the appeal book by close of business two days ago (11 July 2023). She did not do so. Consequently, there is no appeal unless and until the applicant successfully applies for its re-instatement – hence her oral application to do so today.Re-instatement The applicant contended the failure to file the draft index to the appeal book two days ago was caused by her and her lawyer’s attention being distracted by the first respondent’s review application concerning her permission to prosecute the appeal out of time. Delay has been a feature of the appeal proceedings, but the parties acknowledged none of their delay could properly be considered as being prejudicial to the others. The applicant offered a reasonable explanation for her delay in filing the appeal. The appeal was drafted by 18 April 2023, ready for it to be filed within time on 20 April 2023. The applicant’s lawyer tried to file the appeal in time through the Court’s online portal on 19 April 2023, not realising that documents in appeal proceedings must be filed by email with the appeal registrar. When alerted to the error, the applicant’s lawyer attempted to file the appeal with the registrar on 20 April 2023 but, as the email was not received by the registrar until after 4.30 pm that day, the appeal was out of time. Although the application for leave to file the appeal out of time was not then filed until 11 May 2023, the proposed Notice of Appeal had been served upon the first respondent’s lawyers within time on 19 April 2023.

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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NAA 129 of 2023 MLC 10085 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS BABCOCK Applicant
AND:	MR GULATI First Respondent B PTY LTD AS TRUSTEE FOR THE BABCOCK FAMILY TRUST Second Respondent

Appeal from:	Gulati & Babcock (No 2) [2023] FedCFamC2F 320
Appeal number:	NAA 129 of 2023
File number:	MLC 10085 of 2019
Judgment of:	AUSTIN J
Date of judgment:	13 July 2023
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal registrar granted the wife leave to file a Notice of Appeal out of time – Where the matter was listed to hear the Application in an Appeal filed by the husband to review the appeal registrar’s decision – Where shortly before hearing the wife failed to file the draft index to the appeal book on time – Where the appeal was deemed abandoned – Where the wife made an oral application to re-instate the appeal – Where there is no ostensible merit in the appeal – Oral application to re-instate the appeal dismissed – Where it is unnecessary to consider the husband’s review application – Where the husband sought party/party costs of the interlocutory dispute – Application for costs dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VIII, ss 79, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.14, 13.40, 14.07
Cases cited:	Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9 Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27 Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Number of paragraphs:	34
Date of hearing:	13 July 2023
Place:	Newcastle (via Microsoft Teams)
Counsel for the Applicant:	Mr Oldham
Solicitor for the Applicant:	Spectre Linkers
Counsel for the First Respondent:	Mr Robinson
Solicitor for the First Respondent:	Saunders Family & Estate Lawyers
The Second Respondent:	Litigant in person

order made by:	AUSTIN J
DATE OF ORDER:	13 July 2023