Baghti & Banis - [2015] FamCAFC 80

FAMILY COURT OF AUSTRALIA

BAGHTI & BANIS AND ANOR

[2015] FamCAFC 80

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – reinstatement of abandoned appeal – where appeal has no merit – where application is dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 19.29, 19.30, 19.31, 22.13

Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Kohan & Kohan (1993) FLC 92-340
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Mr Baghti

FIRST RESPONDENT:

Mr Banis

SECOND RESPONDENT:

Ms Banis

FILE NUMBER:

SYC

2145

2009

APPEAL NUMBER:

166

2014

DATE DELIVERED:

8 May 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

20 April 2015
6 May 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 November 2014

LOWER COURT MNC:

[2014] FamCA 975

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levet

SOLICITOR FOR THE APPLICANT:

Baghti & Company Lawyers

SOLICITOR FOR THE FIRST RESPONDENT:

McDonell Milne Toltz Family Lawyers

SOLICITOR FOR THE SECOND RESPONDENT:

McDonell Milne Toltz Family Lawyers

ORDERS DATED 6 MAY 2015

The first and second respondents have leave to withdraw their oral application made pursuant to order 2 on 20 April 2015.
The applicant has leave to file in court the Notice of Address of Service of Baghti & Company Lawyers.

ORDERS DATED 8 MAY 2015

The application in an appeal filed by Mr Baghti on 2 March 2015 be dismissed.
The applicant pay the first and second respondents’ costs in the total amount of $800 within 28 days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Banis and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 166 of 2014
File Number: SYC 2145 of 2009

Mr Baghti

Applicant

and

Mr Banis

First Respondent

and

Ms Banis

Second Respondent

REASONS FOR JUDGMENT

This is an application by Mr Baghti (“the applicant”) filed on

2 March 2015 to reinstate his Notice of Appeal filed on 11 December 2014. The proposed appeal is against orders made by Rees J on 13 November 2014 which resulted in the dismissal of the applicant’s application to review orders and directions made by a Senior Registrar on 12 August 2014 and

2 September 2014. Because the applicant failed to file a draft appeal index within the time prescribed by r 22.13 of the Family Law Rules 2004 (Cth) (“the rules”), the appeal was deemed abandoned.
The orders made on 12 August 2014 and 2 September 2014 concerned the assessment of costs to be paid by the applicant, pursuant to orders made by Fowler J on 27 November 2012, to Mr Banis (“the first respondent”) and Ms Banis (“the second respondent”). The respondents are the applicant’s former parents-in-law who were joined in property settlement proceedings between the applicant and Ms…

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 Baghti & Banis

Details

AGLC: Baghti & Banis [2015] FamCAFC 80
Case: [2015] FamCAFC 80
Decision Date: 8 May 2015

CaseChat Overview and Summary

The case before the Family Court of Australia involves an application by Mr Baghti to reinstate his appeal against orders made by Rees J on 13 November 2014. The orders dismissed Mr Baghti's application to review the orders and directions made by a Senior Registrar on 12 August 2014 and 2 September 2014. These earlier orders concerned the assessment of costs to be paid by Mr Baghti to his former parents-in-law, Mr Banis and Ms Banis, pursuant to orders made by Fowler J on 27 November 2012. The appeal was deemed abandoned as Mr Baghti failed to file a draft appeal index within the time prescribed by the Family Law Rules 2004.

The legal issues before the court were whether the application to reinstate the appeal should be granted and, if so, what orders should be made in relation to costs. The court had to consider the guiding principles relating to applications to reinstate an appeal, as outlined in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516. The court also had to assess the merits of the appeal, considering the eleven grounds propounded by Mr Baghti and whether any of them could succeed.

In its reasoning, the court found that Mr Baghti could not provide a reasonable explanation for his delay in filing the draft appeal index. Despite his qualifications in law, extensive experience in this jurisdiction, and the assistance of a lawyer living in the same household, he failed to establish the relevant time frame for filing the draft index. The court also found that the appeal had no merit as the single ground that could be properly pressed did not have a reasonable prospect of success.

Consequently, the court dismissed the application to reinstate the appeal and ordered Mr Baghti to pay the first and second respondents' costs in the total amount of $800 within 28 days. The court rejected the respondents' application for indemnity costs, finding that there was no proper basis for such an order in this application.

This case serves as a reminder of the importance of strict compliance with the Family Law Rules 2004 in family law proceedings. Failure to do so may result in the abandonment of an appeal, even if the appellant has a reasonable explanation for the delay. Additionally, the case highlights the court's discretion in deciding whether to reinstate an abandoned appeal, taking into account the history of the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of leave.

Orders