GUPTA & GUPTA - [2017] FamCAFC 155

FAMILY COURT OF AUSTRALIA

GUPTA & GUPTA

[2017] FamCAFC 155

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where explanation for the failure to file a Notice of Appeal in a timely way is inadequate – Where the draft notice of appeal does not identify appellable error – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the orders appealed are not amenable to appeal – Application dismissed.

Family Law Act 1975 (Cth) s 4(1)
Family Law Rules 2004 (Cth) rr 22.02, 22.03, 22.12

Commonwealth v Mullane (1961) 106 CLR 166
Gallo v Dawson (1990) 93 ALR 479
Tallant & Kelsey [2016] FamCAFC 207

APPLICANT:

Mr Gupta

RESPONDENT:

Ms Gupta

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

PAC

5828

2008

FIRST APPEAL NUMBER:

2017

SECOND APPEAL NUMBER:

2017

DATE DELIVERED:

2 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

2 August 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 February 2017, 15 May 2017

LOWER COURT MNC:

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel

Orders

That the Application in an Appeal in appeal EA 79 of 2017 be dismissed.
That the Application in an Appeal in appeal EA 80 of 2017 be dismissed.
In the application regarding EA 79 of 2017, the applicant pay the costs of the Independent Children’s Lawyer in the amount of $500 to be paid within two months.
In the application regarding EA 80 of 2017, the applicant pay the costs of the Independent Children’s Lawyer in the amount of $500 to be paid within four months.

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 Gupta & Gupta 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).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 80 of 2017; EA 79 of 2017
File Number: PAC 5828 of 2008

Mr Gupta

Applicant

And

Ms Gupta

Respondent

And

Brian Samuel
Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Introduction

Before the court today are two applications and supporting affidavits both filed on 13 July 2017 by Mr Gupta (“the father”) seeking an extension of time to appeal against two sets of orders made by Judge Hughes during the course of a…

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 GUPTA & GUPTA

Details

AGLC: GUPTA & GUPTA [2017] FamCAFC 155
Case: [2017] FamCAFC 155
Decision Date: 2 August 2017

CaseChat Overview and Summary

The applicants, the Guptas, sought leave to appeal against certain family law orders and applied for an extension of time to file their notices of appeal. The applications were heard and dismissed by the Family Court of Australia. The court had to determine whether the applicants' explanations for the delay in filing the notices of appeal were sufficient, and whether the orders appealed from were amenable to appeal. The court found that the explanations for the delay were inadequate and that the draft notices of appeal did not identify any appellable errors. Furthermore, the court determined that the orders in question were not amenable to appeal. Given these findings, the court dismissed both applications for an extension of time to file the notices of appeal. Additionally, the applicants were ordered to pay the costs of the Independent Children's Lawyer in the amounts of $500 each, to be paid within specified timeframes.

Orders

Orders of the court

That the Application in an Appeal in appeal EA 79 of 2017 be dismissed.

That the Application in an Appeal in appeal EA 80 of 2017 be dismissed.

In the application regarding EA 79 of 2017, the applicant pay the costs of the Independent Children’s Lawyer in the amount of $500 to be paid within two months.

In the application regarding EA 80 of 2017, the applicant pay the costs of the Independent Children’s Lawyer in the amount of $500 to be paid within four months.

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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