Bakshi & Mahanta

[2022] FedCFamC1A 42

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Bakshi & Mahanta [2022] FedCFamC1A 42

Appeal from:	Mahanta & Bakshi [2021] FedCFamC2F 289
Appeal number(s):	NAA 38 of 2021
File number(s):	ADC 1032 of 2020
Judgment of:	ALDRIDGE J
Date of judgment:	24 March 2022
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks to vacate the hearing date of the appeal and extend time to comply with the procedural orders – Where the appellant is in India caring for her unwell mother – Unchallenged evidence – Where it is not in the interests of justice to vacate the hearing date of the appeal – Extension granted to file the relevant documents in the appeal.
Number of paragraphs:	11
Date of hearing:	24 March 2022
Place:	Adelaide (via video link)
The Appellant:	Litigant in person
Counsel for the Respondent:	Mr Lindsay
Solicitor for the Respondent:	Carlin Lawyers

ORDERS

NAA 38 of 2021
ADC 1032 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS BAKSHI

Appellant

AND:

MR MAHANTA

Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	24 MARCH 2022

THE COURT ORDERS THAT:

1.The time in which the applicant may file an Application in an Appeal seeking to adduce further evidence together with an affidavit in support, a Summary of Argument and List of Authorities is extended up to and including 15 April 2022.

2.Any Amended Notice of Appeal is to be filed and served by 15 April 2022.

3.The time in which the respondent is to file and serve a Summary of Argument and List of Authorities is extended up to and including 29 April 2022.

NOTATION

A.The applicant has been advised that if she does not comply with the above directions, the appeal may be summarily dismissed at the hearing of the appeal on 3 May 2022.

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 the pseudonym Bakshi & Mahanta has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

ALDRIDGE J:

1. This appeal is fixed for hearing before a bench of three judges on 3 May 2022.

2. Directions were made by an appeal registrar on 14 December 2021 for the preparation of the appeal. Those directions included a requirement for the appellant to file and serve a Summary of Argument and a List of Authorities on which she sought to rely on by 11 March 2022.

3. Similarly, a direction was made that any application seeking to adduce further evidence together with an affidavit in support be filed and served by that date. Those orders have not been complied with.

4. In addition, I am informed by counsel for the respondent that at least at one of the directions hearings that occurred, issues had been raised about the adequacy of the Notice of Appeal and whether or not the grounds were capable of enlivening a complaint that the primary judge’s reasons were inadequate.

5. By an Application in an Appeal filed on 15 March 2022, the appellant sought the vacation of the hearing date of the appeal and that the time to comply with the orders for the Application in Appeal to adduce further evidence and the Summary of Argument be extended.

6. Her evidence, which is essentially unchallenged, is that she left Australia on 23 February 2022 to travel to India to care for her mother who is unwell. She is not sure whether she will have returned to Australia by the hearing of the appeal.

7. There is force in the submissions of counsel for the respondent that there is no explanation given as to why the orders were not complied with before the mother left Australia or at least steps taken to comply with them, or whilst she has been in India. However, during the course of discussions with the appellant, it emerged that she is unlikely to return to Australia before the hearing of the appeal but can appear electronically and is in a position to file her documents from India.

8. It seems to me that it would not be in the interests of justice, certainly not so far as concerns the respondent, to vacate the hearing of the appeal at this stage. I consider that justice can be afforded to both parties by maintaining the hearing date and extending the time that both parties are to file their necessary documents. I appreciate that this may place people under some time pressure in relation to the hearing of the appeal, particularly those members of the bench sitting on it, but taking all matters into account, I think that the justice of the circumstances requires that course.

9. Accordingly, I extended the time in which the appellant may file an Application in an Appeal seeking to adduce further evidence together with an affidavit in support, and a Summary of Argument and List of Authorities up to and including 15 April 2022. Any Amended Notice of Appeal is also to be filed and served by 15 April 2022.

10. I extend the time in which the respondent is to file and serve his Summary of Argument and List of Authorities upon which he seeks to rely up to and including 29 April 2022.

11. I note that the appellant has been advised by me that if she does not comply with the above directions, the appeal may be summarily dismissed on 3 May 2022.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       28 March 2022