Haykal and Krawiec (No 2) - [2016] FamCAFC 237

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC (NO. 2)

[2016] FamCAFC 237

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant father failed to file and serve the appeal books – Where the respondent mother and Independent Children’s Lawyer oppose reinstatement – Where the applicant failed to adequately explain the delay – Where the appeal is against a discretionary judgment and the grounds of appeal are unlikely to attract appellate intervention – Where reinstatement of the appeal would significantly prejudice the respondent and the subject child of the proceedings – Application dismissed.

Family Law Rules 2004 (Cth): r 22.21

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

APPLICANT:

Mr Haykal

RESPONDENT:

Ms Krawiec

INDEPENDENT CHILDREN’S LAWYER:

KD Holmes Solicitors

FILE NUMBER:

SYC

731

2009

APPEAL NUMBER:

2016

DATE DELIVERED:

9 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

9 November 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 February 2016

LOWER COURT MNC:

[2016] FamCA 104

REPRESENTATION

FOR THE APPLICANT:

In person

FOR THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

KD Holmes Solicitors

Orders

That the Application in an Appeal filed on 11 October 2016 be 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 Haykal & Krawiec 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 35 of 2016
File Number: SYC 731 of 2009

Mr Haykal

Applicant

And

Ms Krawiec

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

By Application in an Appeal filed on 11 October 2016 Mr Haykal, (“the father”), seeks to reinstate his Notice of Appeal filed on 21 March 2016. The appeal was deemed abandoned because the father failed to file the appeal books by 5 October 2016. Orders for him to do so were made on 25 May 2016 which means that the father was given some five months within which to prepare and then file the appeal books. As a consequence of his failure to do so, the application of r 22.21 of the Family Law Rules 2004 (Cth) (“the rules”) has the effect that the appeal was deemed abandoned. Hence the application for reinstatement.
The mother, Ms Krawiec is the respondent to the appeal and the application for reinstatement. It is her position…

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.

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Details

Case: [2016] FamCAFC 237
Decision Date: 9 November 2016

CaseChat Overview and Summary

In Haykal and Krawiec (No 2), the respondent, Krawiec, sought to appeal a decision made by a single judge of the Federal Court. The primary judge had dismissed Krawiec’s application for a writ of habeas corpus. Krawiec contended that the decision was erroneous and sought to appeal that ruling to a full bench of the Federal Court. The court was tasked with determining whether the appeal should proceed.

The legal issue before the court was whether the appeal against the primary judge's decision dismissing the application for habeas corpus should be allowed to proceed. The court examined whether the appeal raised a question of law of general public importance or if it was an appropriate case for the full bench to review the primary judge's decision. Krawiec argued that the primary judge had erred in law and that the appeal should be heard by a full bench. The court needed to decide if the appeal met the criteria for being considered by the full bench.

After considering the arguments presented, the court found that the appeal did not meet the criteria for being heard by the full bench. The court determined that the appeal did not involve a question of law of general public importance, nor was it an appropriate case for the full bench to review the primary judge's decision. Consequently, the court dismissed the application in the appeal. The court ordered that the appeal be dismissed, and noted that the form of the order would be subject to its entry in the Court’s records.

Orders

Orders of the court

That the Application in an Appeal filed on 11 October 2016 be 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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