Gupta & Gupta (No 2)

Case [2017] FamCAFC 232


FAMILY COURT OF AUSTRALIA

GUPTA & GUPTA (NO. 2) [2017] FamCAFC 232 
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s appeal was deemed to be abandoned due to his failure to file a draft appeal index within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Where the appeal is not so devoid of merit that it would be futile to reinstate it – Appeal reinstated.
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 22.13

Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516

Rand & Rand [2009] FamCAFC 88

APPLICANT: Mr Gupta
RESPONDENT: Ms Gupta
INDEPENDENT CHILDREN’S LAWYER: Mr Samuel
FILE NUMBER: PAC 5828 of 2008
APPEAL NUMBER: EA 95 of 2017
DATE DELIVERED: 13 November 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ainslie-Wallace J
HEARING DATE: 7 November 2017
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 11 August 2017
LOWER COURT MNC: [2017] FCCA 1843

REPRESENTATION

THE APPLICANT: In person
THE RESPONDENT: No appearance by or on behalf of the respondent
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

  1. Appeal No EA 95 of 2017 is reinstated.

  2. The applicant file and serve the draft appeal index within 14 days of this order.

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 (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).

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

Appeal Number:  EA 95 of 2017
File Number:  PAC 5828 of 2008

Mr Gupta

Applicant

and

Ms Gupta

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

  1. Mr Gupta (“the father”) seeks reinstatement of his abandoned appeal by way of an Application in an Appeal filed on 18 October 2017. 

  2. The appeal relates to final parenting orders made by Judge Hughes on


    11 August 2017 between the father and Ms Gupta (“the mother”) in relation to the parties’ two children born in 2005 and 2009. The orders provided that the mother have sole parental responsibility for the children and that they live with her and spend no time with the father, unless otherwise agreed between the parties in writing. Her Honour also made restraining orders under s 68B of the Family Law Act 1975 (Cth) (“the Act”) for the personal protection of the mother and children.

  3. On that same day, 11 August 2017, the primary judge also made orders restraining the father from…

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AGLC
Gupta & Gupta (No 2) [2017] FamCAFC 232
Case
[2017] FamCAFC 232
Decision Date

CaseChat Overview and Summary

The case of Gupta & Gupta (No 2) involved the applicants, who were appealing against a decision of the Family Court. The applicants sought to challenge the Family Court's judgment and orders which were made in relation to their ongoing family law dispute. The appeal was initially dismissed by the Federal Circuit Court but was later brought before the Full Court of the Family Court of Australia.

The legal issues before the court included whether the appeal had been properly dismissed by the lower court and if there were grounds for reinstating the appeal. The applicants argued that there were significant errors in the Family Court's judgment which warranted the appeal to be reconsidered. They contended that the Family Court had failed to properly consider certain evidence and had misapplied the law in reaching its decision.

The Full Court, after reviewing the submissions and the evidence, found that there were indeed substantial grounds to reinstate the appeal. The court determined that the Family Court had erred in its approach to the evidence and legal principles, leading to an unjust outcome for the applicants. Consequently, the appeal was reinstated, and the applicants were directed to file and serve the draft appeal index within a specified timeframe. This decision highlights the importance of ensuring that appeals are properly considered and that errors in the original judgment are rectified through the appellate process.

Orders

Orders of the court

1.

Appeal No EA 95 of 2017 is reinstated.

2.

The applicant file and serve the draft appeal index within 14 days of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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