HASSEWELL & KROMZA - [2019] FamCAFC 188

FAMILY COURT OF AUSTRALIA

HASSEWELL & KROMZA

[2019] FamCAFC 188

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the husband failed to file a Draft Appeal Index as directed – Where the appeal was deemed abandoned – Where the husband seeks reinstatement of his appeal – Where the husband appealed against a finding that a defacto relationship existed –Where leave was granted to bring property proceedings out of time – Where there are no merits in the proposed appeal – Where there would be prejudice to the respondent wife if the application was allowed – Where it would be futile to reinstate the appeal – application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules (2004) r 22.13(2)

Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88

APPELLANT:

Mr Hassewell

RESPONDENT:

Ms Kromza

FILE NUMBER:

DUC

2018

APPEAL NUMBER:

2019

DATE DELIVERED:

29 October 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

22 October 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 July 2019

LOWER COURT MNC:

[2019] FCCA 1637

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

Orders

The application to reinstate Appeal EA 65 of 2019 against the orders of Judge Dunkley made on 4 July 2019 is dismissed.

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 Hassewell & Kromza 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 65 of 2019
File Number: DUC 90 of 2018

Mr Hassewell

Appellant

and

Ms Kromza

Respondent

REASONS FOR JUDGMENT

On 4 July 2019 Judge Dunkley made orders granting leave to Ms Kromza (“the respondent”) to file an Initiating Application seeking property settlement and other orders notwithstanding that the time in which to bring that application had expired. Mr Hassewell (“the applicant”) appealed those orders.
Following the filing of his Notice of Appeal on 29 July 2019, the husband was advised by letter from the Appeal Registry that he should by 4 pm on 12 August 2019 file an Amended Notice of Appeal to rectify certain matters in the notice. In the same letter, he was further advised to file a draft appeal index no later than 4.30 pm on 21 August 2019. Whilst the husband filed his amended notice of appeal he failed to file the draft appeal index. Accordingly the appeal was subsequently deemed…

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 HASSEWELL & KROMZA

Details

AGLC: HASSEWELL & KROMZA [2019] FamCAFC 188
Case: [2019] FamCAFC 188
Decision Date: 29 October 2019

CaseChat Overview and Summary

The matter in question involved Hassewell and Kromza, with the proceedings occurring in the Federal Court of Australia. The applicants sought to reinstate an appeal that had previously been dismissed. The initial orders were made by Judge Dunkley on 4 July 2019, and the applicants were now asking for these orders to be set aside and for their appeal to be reinstated. The core of the dispute centred on the legal validity of the initial dismissal and whether the applicants had sufficient grounds to warrant the reinstatement of their appeal.

The primary legal issues the court needed to address were whether there was any error in the original decision that warranted the reinstatement of the appeal and if the applicants had demonstrated a valid reason to set aside the earlier orders. The court had to consider the grounds on which the appeal was dismissed and evaluate whether those grounds still stood or if new evidence or arguments had been presented that could change the outcome.

The court, after careful consideration, found that the grounds upon which the appeal was initially dismissed remained valid. There was no evidence presented that would change the initial determination. The court reasoned that the applicants had not demonstrated any significant error in the original decision-making process, nor had they provided compelling new evidence or arguments that would justify setting aside the earlier orders. Consequently, the application to reinstate the appeal was dismissed. The form of the order was noted to be subject to formal entry in the Court’s records.

Orders

Orders of the court

The application to reinstate Appeal EA 65 of 2019 against the orders of Judge Dunkley made on 4 July 2019 is dismissed.

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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