CHIRAG & KANELKA - [2018] FamCAFC 240

FAMILY COURT OF AUSTRALIA

CHIRAG & KANELKA

[2018] FamCAFC 240

FAMILY LAW – APPEAL – REINSTATE APPEAL DEEMED ABANDONED – Where the applicant seeks to reinstate an appeal deemed abandoned as a result of her failure to file appeal books as ordered – Where the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties – Where there is no adequate or acceptable reason for the failure to file the appeal books on time – Where the applicant raises no competent ground of appeal which would allow the appeal to proceed – Where in the interests of justice the application must be refused – Application dismissed.

Family Law Act 1975 (Cth)
Marriage Act 1961 (Cth)
Family Law Rules 2004 (Cth) rr 22.44 & 22.57

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Batey-Elton & Elton [2009] FamCAFC 101
Bemert & Swallow (2010) FLC 93-441
Gallo v Dawson (1990) 93 ALR 479
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Ms Chirag

RESPONDENT:

Mr Kanelka

FILE NUMBER:

MLC

1365

2018

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

3 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

3 December 2018

REPRESENTATION

THE APPLICANT:	In Person
THE RESPONDENT:	In Person

Order

The Application in an Appeal filed on 24 October 2018 be dismissed.

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 Chirag & Kanelka 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 MELBOURNE

Appeal Number: SOA 41 of 2018
File Number: MLC 1365 of 2018

Ms Chirag

Applicant

And

Mr Kanelka

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before the court is the Application in an Appeal filed by Ms Chirag (“the wife”) on 24 October 2018. In that application the wife seeks an order reinstating appeal no. SOA 41 of 2018, and extending the time for filing of appeal books until 15 November 2018. The application was supported by an affidavit filed on the same date.
Both parties appeared without legal representation, with the wife on a telephone-link.
The application is opposed by Mr Kanelka (“the husband”) and in that regard he filed a Response on 19 November 2018 seeking, in effect, dismissal of the application. That Response is also supported by an affidavit of the same date. However, as I have explained to the respondent husband, the material in that affidavit is not relevant to the…

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.

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Details

AGLC: CHIRAG & KANELKA [2018] FamCAFC 240
Case: [2018] FamCAFC 240
Decision Date: 3 December 2018

CaseChat Overview and Summary

In the Family Court of Australia, Ms Chirag, the applicant, sought to reinstate an appeal against an order made by the primary judge, Bennett J, which dismissed her application for a decree of nullity. Mr Kanelka, the respondent, opposed the application to reinstate the appeal. The appeal was deemed abandoned due to Ms Chirag's failure to file her appeal books by the specified deadline. The court was required to decide whether the appeal should be reinstated and, if so, under what conditions. The key legal issues were whether there were adequate reasons for Ms Chirag's failure to comply with the court's orders, the merits of the appeal, and the consequences for both parties if the application was granted or refused.

The court considered the principles of case management and justice between the parties, as highlighted in relevant case law and rules. It was noted that the discretion to reinstate an abandoned appeal is broad and not limited by specific criteria. However, the court must ensure that strict compliance with rules does not result in injustice. The court assessed the adequacy of Ms Chirag's reasons for failing to file the appeal books, the merits of the appeal, and the consequences for both parties if the application was granted or refused.

The court found that Ms Chirag had not provided an adequate or acceptable reason for her failure to file the appeal books on time. She had ample opportunity to raise the issue but did so only on the day the appeal books were due. Furthermore, the appeal lacked merit as the Further Amended Notice of Appeal did not raise any competent grounds of appeal. The court concluded that it was in the interests of justice to refuse the application to reinstate the appeal due to the lack of adequate reasons for non-compliance and the absence of merit in the appeal.

The application to reinstate the appeal was dismissed.

Orders