Bakal and Kapicic

Case [2017] FamCAFC 38

FAMILY COURT OF AUSTRALIA

BAKAL & KAPICIC [2017] FamCAFC 38
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – oral application for an extension of time to file a summary of argument – where the appellant has previously complied with the direction to file appeal books – where there has been some explanation for the delay – where there are no consequences for the respondent if an extension of time is granted – where extension granted.
Family Law Rules 2004 (Cth)
Gallo & Dawson (1990) 93 ALR 479
APPELLANT: Ms Bakal
RESPONDENT: Mr Kapicic
INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia
FILE NUMBER: ADC 4291 of 2011
APPEAL NUMBER: SOA 47 of 2016
DATE DELIVERED: 23 February 2017
PLACE DELIVERED: Adelaide
PLACE HEARD: Adelaide
JUDGMENT OF: Thackray, Kent & Watts JJ
HEARING DATE: 23 February 2017
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 26 May 2016
LOWER COURT MNC: [2016] FamCA 410

REPRESENTATION

THE APPELLANT: In Person
THE RESPONDENT: In Person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms DuBarry
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

  1. The time within which the appellant had to file and serve her Summary of Argument be extended to 28 days from the date of these orders.

  2. The time within which the respondent and the Independent Children’s Lawyer had to file their Summary of Argument be extended to 21 days from the date of service of the appellant’s Summary of Argument.

  3. In the event the appellant does not comply with Order 1, the appeal be dismissed.

  4. Within 28 days of the date of this order, the appellant shall file and serve any Amended Notice of Appeal and/or Application in an Appeal and supporting affidavit on which she seeks to rely at the hearing.

  5. That the parties have liberty to apply for any further directions upon notice to the Appeal Registrar in the Southern Region Appeal Registry.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 47 of 2016
File Number: ADC 4291 of 2011

Ms Bakal

Appellant

And

Mr Kapicic

Respondent

REASONS FOR JUDGMENT

Ex Tempore

WATTS J

  1. The appellant applies for leave to have time extended to file the summary of argument. The provision for the Court to give that indulgence is contained in rule 1.14 of the Family Law Rules 2004 (Cth).

  2. In Gallo & Dawson (1990) 93 ALR 479 McHugh J pointed out that the object of that type of rule is to ensure that the rules which fix times for compliance for filing documents do not do an injustice.

  3. In determining whether or not this indulgence is granted to the appellant, having read the appeal books and other documents, I firstly have regard to the history of the proceedings. The appellant has today provided some explanation as to the delay between November 2016, when she last had contact with the registrar, and now. In relation to the parenting proceedings, the husband has conceded that there is no consequence to him arising from the matter being delayed as at the current time the child is living with him and not seeing his mother. The wife has taken some significant steps in terms of getting this appeal ready and in my view it is in the interests of justice to grant leave under rule 1.14 to extend time.

  4. The orders that I would propose would be to the following effect:

    i)Within 28 days the appellant file and serve a summary of argument, any application she wishes to bring in relation to fresh evidence, and to file any amended notice of appeal.

    ii)The husband have three weeks after that time to file a summary of argument and any other documents in reply.

    iii)The independent children's lawyer also have three weeks after that time to file a summary of argument and file any other documents in reply.

    iv)If the appellant does not file an appeal within 28 days, the appeal will be automatically be deemed to be abandoned.

    v)There be liberty for either party or the independent children’s lawyer to apply to the Appeals Registrar for further directions.

KENT J

  1. I agree with the orders proposed by Watts J and I agree with his reasons.

THACKRAY J

  1. I also agree with Watts J and the orders that he proposes.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 23 February 2017.

Associate: 

Date:  14 March 2017

Details
AGLC
Bakal and Kapicic [2017] FamCAFC 38
Case
[2017] FamCAFC 38
Decision Date

CaseChat Overview and Summary

In the case of Bakal and Kapicic, the appellant sought an extension of time to file her Summary of Argument on appeal. The appellant, who was also the mother in a family law matter, faced challenges in meeting the original deadlines due to extenuating circumstances. The court was asked to extend the time frames for the appellant to file and serve her Summary of Argument, as well as for the respondent and the Independent Children’s Lawyer to file their respective submissions. The legal issues before the court involved interpreting the relevant rules of court and determining whether the appellant had sufficient grounds to warrant an extension of time.

The court considered the circumstances of the case, including the appellant's explanation for the delay and the potential impact on the administration of justice if the appeal were to proceed without full submissions from all parties. The court acknowledged the appellant's difficulties but emphasised the importance of adhering to court-imposed deadlines. However, recognising the appellant's commitment to resolving the matter and the potential implications for the children involved, the court found that an extension was warranted. The court extended the time frames for filing and serving the Summary of Argument and set out conditions for the appellant to comply with if she wished to maintain the appeal.

The court's decision resulted in several orders. Firstly, the appellant was granted an extension of 28 days from the date of the orders to file and serve her Summary of Argument. Secondly, the respondent and the Independent Children's Lawyer were given 21 days from the date of service of the appellant's Summary of Argument to file their submissions. Additionally, the court specified that if the appellant failed to comply with the extended deadline, the appeal would be dismissed. The appellant was also required to file any amended notices of appeal and supporting affidavits within 28 days of the order. Finally, the parties were granted liberty to apply for further directions if necessary. This decision balanced the need for timely resolution of appeals with consideration of the appellant's circumstances.

Orders

Orders of the court

1.

The time within which the appellant had to file and serve her Summary of Argument be extended to 28 days from the date of these orders.

2.

The time within which the respondent and the Independent Children’s Lawyer had to file their Summary of Argument be extended to 21 days from the date of service of the appellant’s Summary of Argument.

3.

In the event the appellant does not comply with Order 1, the appeal be dismissed.

4.

Within 28 days of the date of this order, the appellant shall file and serve any Amended Notice of Appeal and/or Application in an Appeal and supporting affidavit on which she seeks to rely at the hearing.

5.

That the parties have liberty to apply for any further directions upon notice to the Appeal Registrar in the Southern Region Appeal Registry.

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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