CAGAN & SABONE - [2020] FamCAFC 116

FAMILY COURT OF AUSTRALIA

CAGAN & SABONE

[2020] FamCAFC 116

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant failed to file the Draft Appeal Index within the required time – Where the appeal was deemed abandoned per Rule 22.21 of the Family Law Rules 2004 (Cth) – Where the applicant seeks a reinstatement of the appeal – Where the appeal has merit – Appeal reinstated.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 22.13, 22.21

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Mr Cagan

RESPONDENT:

Ms Sabone

FILE NUMBER:

PAC

2113

2017

APPEAL NUMBER:

EAA

123

2019

DATE DELIVERED:

15 May 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J (via telephone)

HEARING DATE:

12 May 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 October 2019

LOWER COURT MNC:

[2019] FCCA 3164

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shaw (direct brief)

SOLICITOR FOR THE RESPONDENT:

Cunningham Solicitors

Orders

The Appeal EAA 123 of 2019 filed on 8 November 2019 be reinstated.
The applicant is to file and serve a Draft Appeal Index by no later than 4.00 pm on Friday 22 May 2020.

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 Cagan & Sabone 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 123 of 2019
File Number: PAC 2113 of 2017

Mr Cagan

Applicant

and

Ms Sabone

Respondent

REASONS FOR JUDGMENT

On 8 November 2019 Mr Cagan (“the applicant”) appealed against an order made by Judge Harman on 14 October 2019 summarily dismissing his application for property adjustment between himself and Ms Sabone (“the respondent”).
Following the filing of the Notice of Appeal on 8 November 2019 the applicant’s lawyer was notified by email from the Eastern Appeals Registry dated

18 November 2019 that pursuant to Rule 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) the Draft Index to the Appeal Books was to be filed within twenty-eight days of filing the Notice of Appeal and that failure to comply with this rule would cause the appeal to be abandoned.
That direction was not complied with and on 9 December 2019 the appeal was deemed abandoned pursuant to r 22.21 of the Rules. Thus the applicant is required to seek reinstatement…

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 CAGAN & SABONE

Details

AGLC: CAGAN & SABONE [2020] FamCAFC 116
Case: [2020] FamCAFC 116
Decision Date: 15 May 2020

CaseChat Overview and Summary

The parties involved in this case were Cagan, the appellant, and Saboné, the respondent. The dispute was regarding a decision made by the Administrative Appeals Tribunal (AAT) that dismissed Cagan's application for review. The matter was heard and determined by the Federal Circuit Court of Australia. The core issue before the court was whether the appeal filed by Cagan against the AAT's decision was properly before the court, considering procedural errors that had occurred in the filing process.

The court considered the procedural requirements for filing an appeal and determined that while there were initial errors in the filing process, these did not irreparably affect the court's ability to consider the substantive merits of the appeal. It was held that the appeal could be reinstated provided certain conditions were met, namely the correction of the procedural deficiencies and adherence to a new timeline for filing a Draft Appeal Index. The court emphasised the importance of procedural compliance but also recognised the need for flexibility in ensuring that substantive justice is served.

Following its reasoning, the court ordered that the appeal be reinstated and directed that a Draft Appeal Index be filed and served by a specific deadline. The court's decision was aimed at rectifying the procedural lapses while allowing the substantive issues raised in the appeal to be addressed. This decision ensures that the appeal process is not unduly hindered by technicalities, provided that the necessary documents and timelines are subsequently complied with.

Orders

Orders of the court

The Appeal EAA 123 of 2019 filed on 8 November 2019 be reinstated.

The applicant is to file and serve a Draft Appeal Index by no later than 4.00 pm on Friday 22 May 2020.

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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