Denholm & Denholm

[2022] FedCFamC1A 113

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Denholm & Denholm [2022] FedCFamC1A 113

Appeal from:

Orders dated 6 April 2022

Appeal number(s):

NAA 97 of 2022

File number(s):

PTW 6869 of 2020

Judgment of:

AUSTIN J

Date of judgment:

22 July 2022

Catchwords:

FAMILY LAW – APPEAL – Application in an Appeal – Reinstatement – Appeal from the Magistrate’s Court of Western Australia – Where the appeal was deemed abandoned due to a failure to file the draft appeal book index in time – Where the delay was not substantial – Where good reasons were advanced for the delay – Where no apparent prejudice would be visited upon the respondent – Where it cannot be said the entire appeal is so devoid of merit that it would be futile to re-instate it – Appeal reinstated – Time for filing draft appeal book index extended.

Legislation:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.14

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Nanschild v Pratt [2011] NSWCA 85

Tabb & Tabb [2017] FamCAFC 169

Number of paragraphs:

8

Date of hearing:

22 July 2022

Place:

Newcastle (via video link)

Solicitor for the Applicant:

Keegan & Co Family Lawyers

The Respondent:

Self-represented litigant

ORDERS

NAA 97 of 2022
PTW 6869 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR DENHOLM

Applicant

AND:

MS DENHOLM

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	22 JULY 2022

THE COURT ORDERS THAT:

1.The appeal is re-instated.

2.The time for filing the draft appeal index is extended to 4.00 pm on Monday 25 July 2022.

3.The Application in an Appeal filed on 8 July 2022 is otherwise dismissed.

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

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. By an Application in an Appeal filed on 8 July 2022, the applicant seeks an order re-instating the appeal which was deemed to be abandoned pursuant to r 13.14(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) when he failed to file his draft appeal index in time.

2. In support of the application, the applicant relied upon his affidavit filed on 8 July 2022 and the draft appeal index he intends to file if permitted to do so.

3. The principles which govern the exercise of discretion in determining whether an abandoned appeal should be re-instated are not in doubt and are helpfully collected in Tabb & Tabb [2017] FamCAFC 169 at [9]–[14]. They need not be repeated.

4. In this instance, the applicant’s default was not substantial, he advances good reasons for the delay, and no apparent prejudice would be occasioned to the respondent if the appeal is re-instated.

5. The draft appeal index was due to be filed under the Rules on 8 June 2022. It was not filed on time because the applicant’s lawyers and their staff were exposed to COVID-19 infections and, by reason of their illness and the isolation directions then in operation in the State of Western Australia, were unable to attend to their litigation practice with usual diligence and timeliness. The delay in filing the draft appeal index was therefore beyond the applicant’s personal control and the adverse repercussions of omissions and errors by lawyers are not usually visited upon their clients (Allesch v Maunz (2000) 203 CLR 172 at [41]; Jackamarra v Krakouer (1998) 195 CLR 516 at [14], [68] and [70]).

6. If re-instated, the grounds of appeal are as set out in the Notice of Appeal filed on 4 May 2022. They contain an admixture of alleged legal, factual and discretionary errors. On their face, several grounds appear unmeritorious, but it cannot be presently said the entire appeal is so devoid of merit that it would be futile to re-instate it (Jackamarra v Krakouer at [4], [5], [7], [33], [66]; Nanschild v Pratt [2011] NSWCA 85 at [39]–[41]).

7. Aside from having to meet the appeal on merit, the respondent did not contend its re-instatement would cause her any particular prejudice. The orders under appeal were made on 6 April 2022 and require the sale of the former family home, due to the applicant’s default in paying a stipulated sum of money to the respondent on time. According to the evidence, the appealed enforcement orders have not been implemented as the respondent has not yet taken steps to list the property for sale.

8. The appeal will be re-instated and the applicant will have one clear business day to file the draft appeal index.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       22 July 2022