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:

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.
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…

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 Denholm & Denholm

Details

AGLC: Denholm & Denholm [2022] FedCFamC1A 113
Case: [2022] FedCFamC1A 113
Decision Date

CaseChat Overview and Summary

In the case of Denholm & Denholm, the applicant appealed against orders made by the Magistrate’s Court of Western Australia. The primary issue before the court was whether the appeal, which had been deemed abandoned due to a failure to file the draft appeal book index in time, should be reinstated. The applicant sought reinstatement on the basis that the delay was not substantial, good reasons had been provided for the delay, and no prejudice would result to the respondent if the appeal were reinstated.

The court considered the principles governing the exercise of discretion in determining whether an abandoned appeal should be reinstated, as outlined in Tabb & Tabb [2017] FamCAFC 169. The applicant’s delay in filing the draft appeal book index was attributed to COVID-19 infections among his lawyers and their staff, resulting in their inability to attend to their litigation practice with usual diligence and timeliness. The court accepted that the delay was beyond the applicant’s personal control and, in light of the circumstances, found that the applicant had provided good reasons for the delay. Additionally, the respondent did not argue that reinstatement would cause her any particular prejudice.

The court also examined the merits of the appeal, noting that while several grounds of appeal appeared unmeritorious, it could not be said that the entire appeal was devoid of merit. The appeal was therefore reinstated, and the applicant was granted an extension of time to file the draft appeal book index. The court dismissed the applicant's application in its other respects.

In summary, the court reinstated the appeal and extended the time for filing the draft appeal book index, while dismissing the applicant's application in other respects.

Orders