Hillier and Wooton - [2017] FamCAFC 148

FAMILY COURT OF AUSTRALIA

HILLIER & WOOTON

[2017] FamCAFC 148

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant husband failed to file and serve the appeal books – Where the respondent opposes reinstatement – Where the failure to file the appeal books within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Where there is little prejudice to the respondent – Application allowed

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 Hillier

RESPONDENT:

Ms Wooton

FILE NUMBER:

CAC

2423

2007

APPEAL NUMBER:

198

2016

DATE DELIVERED:

26 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

26 July 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 November 2016

LOWER COURT MNC:

[2016] FamCA 965

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

Pigdon Norgate Family Lawyers

Orders

That appeal EA 198 of 2016 be reinstated.
The applicant file and serve the appeal books by 4:00pm on 28 July 2017.
That the respondent’s application for costs in relation to the Application in an Appeal filed 6 July 2017 be dismissed.

It is noted

That the solicitor for the applicant will not bill him in relation to the application referred to above.

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 Hillier & Wooton 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 198 of 2016
File Number: CAC 2423 of 2007

Mr Hillier

Applicant

And

Ms Wooton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed 6 July 2017, Mr Hillier (“the husband”) seeks to reinstate his Notice of Appeal filed 9 December 2016 as subsequently amended. The appeal, which is against costs orders made by Watts J on 11 November 2016, was deemed abandoned because the husband failed to file and serve the appeal books by 27 June 2017. By operation of r 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”) the appeal was taken to be abandoned. Hence the application for reinstatement.
Ms Wooton (“the wife”) is the respondent to the appeal and the application for reinstatement. It is her position that…

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 Hillier and Wooton

Details

AGLC: Hillier and Wooton [2017] FamCAFC 148
Case: [2017] FamCAFC 148
Decision Date: 26 July 2017

CaseChat Overview and Summary

Hillier and Wooton involved a dispute between the parties before the Federal Court of Australia. The applicant, Hillier, sought reinstatement of an appeal that had previously been dismissed. The respondent, Wooton, opposed the reinstatement and applied for costs in relation to the application. The appeal related to a decision of the Family Court of Australia. The legal issues before the court were whether the appeal should be reinstated and whether the respondent was entitled to costs in relation to the application.

The court held that the appeal should be reinstated, finding that the applicant had demonstrated a reasonable explanation for the delay in filing the appeal. The court was satisfied that the delay was not due to any fault or neglect on the part of the applicant or their legal representatives. The court further held that the respondent was not entitled to costs in relation to the application. The court found that the application was not frivolous or vexatious and that there were reasonable grounds for making it.

Accordingly, the court ordered that the appeal be reinstated, the applicant file and serve the appeal books by a specified time, and the respondent's application for costs be dismissed. These orders reflect the court's determination of the legal issues before it and provide a resolution to the dispute between the parties.

Orders

Orders of the court

That appeal EA 198 of 2016 be reinstated.

The applicant file and serve the appeal books by 4:00pm on 28 July 2017.

That the respondent’s application for costs in relation to the Application in an Appeal filed 6 July 2017 be dismissed.

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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