Haykal & Krawiec & Anor - [2014] FamCAFC 110

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC AND ANOR

[2014] FamCAFC 110

FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT OF APPEAL – where the applicant seeks reinstatement of an appeal against parenting orders and/or an extension of time to appeal those orders – where the Full Court considered the reasons for discontinuing the appeal and the proposed grounds of appeal and found that reinstatement of the appeal would not serve the interests of justice – application dismissed.

FAMILY LAW – APPEAL – APPLICATIONS FOR STAY OF INDEMNITY COSTS ORDER PENDING APPLICATION FOR SPECIAL LEAVE TO APPEAL TO THE HIGH COURT – where an indemnity costs order had been made by a trial judge against the applicant – where an earlier Full Court dismissed an appeal by the applicant against the indemnity costs order – where the applicant applied to the High Court for special leave to appeal the dismissal of the appeal against the indemnity costs order – where the High Court had refused to grant special leave to appeal – where this Full Court found no utility in the stay applications following the decision of the High Court – application dismissed.

Evidence Act 1995 (Cth) s 135, s 136

Bele & Vaughan (No 2) [2012] FamCAFC 125
Bemert & Swallow (2010) FLC 93-441
Gallo v Dawson (1990) 93 ALR 479
House v the King (1936) 55 CLR 499
Jeeves & Jeeves [2010] FamCAFC 243
Rand & Rand [2009] FamCAFC 88
Rice v Asplund (1979) FLC 90-725

APPELLANT:

Mr Haykal

RESPONDENT:

Ms Krawiec

INTERVENER:

The Official Trustee in Bankruptcy

FILE NUMBER:

SYC

731

2009

APPEAL NUMBER:

2012

DATE DELIVERED:

25 June 2014

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, May and Strickland JJ

HEARING DATE:

4 December 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 May 2012

31 August 2012

LOWER COURT MNC:

[2012] FamCA 379
[2012] FamCA 748

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Conley

SOLICITOR FOR THE RESPONDENT:

Michael Conley Lawyers

INTERVENER:

Ms W

Orders

The applications filed 19 September 2013 and 8 October 2013 be dismissed.
The amended application filed 16 October 2013 be dismissed.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 85 of 2012
File Number: SYC 731 of 2009

Mr Haykal

Appellant

And

Ms Krawiec

Respondent

And

The Official Trustee in Bankruptcy

Intervener

REASONS FOR JUDGMENT

Introduction

On 4 December 2013, the following applications filed by Mr Haykal (“the father”) were listed before this Full Court for hearing:
·an application filed on 19 September 2013 seeking to stay orders made at first instance by Murphy J on 31 August 2012;
·an application filed on 8 October 2013 seeking to stay an order of the…

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.

Keep reading for free

Create a free CaseChat account to read Haykal & Krawiec & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FamCAFC 110
Decision Date

CaseChat Overview and Summary

The appeal brought by Mr Haykal (the father) against parenting orders made by Murphy J on 18 May 2012 and against an indemnity costs order made by Murphy J on 31 August 2012 was discontinued by the father on 5 March 2013. An appeal against the indemnity costs order was dismissed by the Full Court on 19 March 2013. The father applied on 19 September 2013 for a stay of the indemnity costs order and on 8 October 2013 for a stay of the Full Court’s order dismissing his appeal against the indemnity costs order. The father also applied on 16 October 2013 for an order re-instating his appeal against the parenting orders. The three applications were heard on 4 December 2013. The applications for a stay of the indemnity costs order and of the Full Court’s order dismissing the appeal against the indemnity costs order were dismissed, as was the application to re-instate the appeal against the parenting orders. The father’s application to re-instate his appeal against the parenting orders was dismissed because there were no adequate reasons to explain the delay in seeking to re-instate the appeal, there was no substantial issue to be raised on appeal, and the appeal would not be likely to succeed.

Orders