Cimorelli and Wenlack (No 2) - [2019] FamCAFC 255

FAMILY COURT OF AUSTRALIA

CIMORELLI & WENLACK (NO. 2)

[2019] FamCAFC 255

FAMILY LAW – APPEAL – APPLICATION IN APPEAL – REINSTATEMENT – Multiple appeals deemed abandoned – Failure to comply with time‑frame for filing Draft Appeal Index – Non‑compliance based on genuine mistake – Where the orders sought to be challenged on appeal are no longer the operative orders in the proceedings – Reinstatement of the Notice of Appeal would be futile – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Oral application for expedition of additional appeal – Respondent not present – Efficient use of court resources – Where denial of procedural fairness to the respondent is justified –Application granted.

Family Law Rules 2004 (Cth) r 22.13(2)

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

APPLICANT:

Ms Cimorelli

RESPONDENT:

Mr Wenlack

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

2881

2013

APPEAL NUMBER:

107

2019

DATE DELIVERED:

18 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

18 December 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 October 2019

LOWER COURT MNC:

[2019] FamCA 755

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Cotter-Moroz

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

That the Application in an Appeal to reinstate Appeal EA 107 of 2019 filed 29 November 2019 be dismissed.
That the applicant mother have leave to make an oral application to expedite hearing of Appeal EA 135 of 2019.
That Appeal EA 135 of 2019 be expedited and listed for hearing on the week commencing 2 March 2020.

IT IS NOTED THAT

Appeal EA 128 of 2019 has been withdrawn.

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 Cimorelli & Wenlack (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: EA 107 of 2019
File Number: SYC 2881 of 2013

Ms Cimorelli

Applicant

And

Mr Wenlack

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 29 November 2019, Ms Cimorelli (“the mother”) seeks to reinstate her Notice of Appeal filed 15 October 2019 (Appeal EA 107 of 2019). The appeal was…

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 Cimorelli and Wenlack (No 2)

Details

AGLC: Cimorelli and Wenlack (No 2) [2019] FamCAFC 255
Case: [2019] FamCAFC 255
Decision Date: 18 December 2019

CaseChat Overview and Summary

The case of Cimorelli and Wenlack (No 2) involved an appeal in family law matters. The primary dispute centred on the reinstatement of an appeal that had been deemed abandoned, as well as an application for the expediting of another appeal. The matter was heard in the Family Court of Australia. The court was asked to determine whether the appeal that had been abandoned could be reinstated, given that the orders sought to be challenged were no longer the operative orders in the proceedings. Additionally, the court needed to decide whether an additional appeal could be expedited, especially considering the absence of the respondent during the oral application for such expedition.

The legal issues before the court included whether the genuine mistake made in not complying with the time-frame for filing a Draft Appeal Index justified the reinstatement of an abandoned appeal. Furthermore, the court had to consider the procedural fairness to the respondent in expediting the additional appeal, given that the respondent was not present during the oral application for expedition. The court examined whether the efficient use of court resources and the need to avoid unnecessary delay outweighed the lack of procedural fairness to the respondent.

The court found that the genuine mistake made in filing the Draft Appeal Index did not justify the reinstatement of the abandoned appeal, as doing so would be futile given that the orders sought to be challenged were no longer operative. The court granted the application to expedite the additional appeal, despite the absence of the respondent during the oral application, on the basis that the efficient use of court resources and the need to avoid unnecessary delay outweighed the lack of procedural fairness to the respondent. Consequently, the court dismissed the application to reinstate the abandoned appeal and granted leave for the expediting of the additional appeal, which was then listed for hearing.

The final orders of the court were that the application to reinstate Appeal EA 107 of 2019 be dismissed. The court also granted the applicant leave to make an oral application to expedite the hearing of Appeal EA 135 of 2019. Finally, the court ordered that Appeal EA 135 of 2019 be expedited and listed for hearing on the week commencing 2 March 2020.

Orders

Orders of the court

That the Application in an Appeal to reinstate Appeal EA 107 of 2019 filed 29 November 2019 be dismissed.

That the applicant mother have leave to make an oral application to expedite hearing of Appeal EA 135 of 2019.

That Appeal EA 135 of 2019 be expedited and listed for hearing on the week commencing 2 March 2020.

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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