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 | of | 2007 |
| APPEAL NUMBER: | EA | 198 | of | 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…
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- AGLC
- Hillier and Wooton [2017] FamCAFC 148
- Case
- [2017] FamCAFC 148
- Decision Date
CaseChat Overview and Summary
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
1.
That appeal EA 198 of 2016 be reinstated.
2.
The applicant file and serve the appeal books by 4:00pm on 28 July 2017.
3.
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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