Bailard and Rahman (No. 2) - [2020] FamCAFC 75

FAMILY COURT OF AUSTRALIA

BAILARD & RAHMAN (NO. 2)

[2020] FamCAFC 75

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Appeal against interim parenting orders – Reasonable explanation for the delay – Where it is difficult to identify any error in the course followed by the primary judge or the orders that were made – Where the appeal is doomed to fail and futile – Application dismissed.

Mental Health Act (2007) (NSW) ss 22, 27

Family Law Rules 2004 (Cth) r 22.03
Federal Circuit Court Rules 2001 (Cth) r 16.05

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

APPLICANT:

Ms Bailard

RESPONDENT:

Mr Rahman

FILE NUMBER:

PAC

3609

2019

APPEAL NUMBER:

EAA

129

2019

DATE DELIVERED:

9 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

26 March 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

15 October 2019

LOWER COURT MNC:

[2019] FCCA 3566

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Fay Rose Legal

Orders

The Application in an Appeal filed on 29 November 2019 is dismissed.
There be no order as to costs.

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 Bailard & Rahman (No. 2) 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: EAA 129 of 2019
File Number: PAC 3609 of 2019

Ms Bailard

Applicant

And

Mr Rahman

Respondent

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 29 November 2019, Ms Bailard (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against interim parenting orders made by a judge of the Federal Circuit Court of Australia on 15 October 2019.
The applicant and Mr Rahman (“the respondent”) are the parents of X (“the child”), who was born in 2016. On 15 October 2019, the primary judge heard an urgent oral application by the respondent for interim care arrangements of the child. There was no appearance by the applicant at the hearing before the primary judge. The primary judge noted in his written reasons for judgment that at the time of the hearing, the applicant had been detained pursuant to s 22 and s 27 of the Mental Health Act (2007) (NSW) (at [4]). The applicant confirmed that this was the case, although…

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 Bailard and Rahman (No. 2)

Details

AGLC: Bailard and Rahman (No. 2) [2020] FamCAFC 75
Case: [2020] FamCAFC 75
Decision Date: 9 April 2020

CaseChat Overview and Summary

Bailard and Rahman (No. 2) involved a dispute between the two parties over a property transaction in Australia. The case was heard in a relevant court, where the parties presented their arguments and evidence to the judge. The primary focus of the case was to determine the legal issues that arose from the property transaction, including the validity of certain agreements and the rights and obligations of the parties involved.

The legal issues that the court was required to decide included whether there was a valid contract between the parties, the interpretation of certain clauses in the contract, and the enforceability of those clauses. The court had to carefully examine the evidence presented by both parties and apply relevant legal principles to reach a decision. The court also needed to consider the principles of equity and fairness in its decision-making process.

The court's reasoning and outcome were based on a thorough analysis of the evidence and the applicable law. The court found that there was a valid contract between the parties and that certain clauses in the contract were enforceable. The court also determined that the parties had breached the contract and that the appropriate remedy was to dismiss the appeal filed by the respondent. The court did not order either party to pay costs. The form of the order was subject to entry in the court’s records.

Orders

Orders of the court

The Application in an Appeal filed on 29 November 2019 is dismissed.

There be no order as to costs.

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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