Gupta & Gupta (No 2) - [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

2008

APPEAL NUMBER:

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

Appeal No EA 95 of 2017 is reinstated.
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

Mr Gupta (“the father”) seeks reinstatement of his abandoned appeal by way of an Application in an Appeal filed on 18 October 2017.
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.
On that same day, 11 August 2017, the primary judge also made orders restraining the father from…

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 (No 2)

Details

AGLC: Gupta & Gupta (No 2) [2017] FamCAFC 232
Case: [2017] FamCAFC 232
Decision Date: 13 November 2017

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

Appeal No EA 95 of 2017 is reinstated.

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

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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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