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 | of | 2009 |
| APPEAL NUMBER: | EA | 35 | of | 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…
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- Case
- [2016] FamCAFC 237
- Decision Date
CaseChat Overview and Summary
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
1.
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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