Jabara & Gaber

[2021] FamCAFC 63

FAMILY COURT OF AUSTRALIA

Jabara & Gaber [2021] FamCAFC 63

Appeal from:

Gaber & Jabara [2021] FCCA 210

Appeal number(s):

EAA 22 of 2021

File number(s):

PAC 106 of 2019

Judgment of:

AINSLIE-WALLACE J

Date of judgment:

4 May 2021

Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Failure to file the Draft Appeal Index – Appeal deemed abandoned – Delay explained – Where the appeal is not so devoid of merit that it would be futile to reinstate it – Prejudice – Application allowed – Costs ordered.

Legislation:

Family Law Rules 2004 (Cth) r 22.13

Cases cited:

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Rand & Rand [2009] FamCAFC 88

Division:

Appeal Division

Number of paragraphs:

17

Date of hearing:

4 May 2021

Place:

Sydney

Counsel for the Applicant:

Mr Grew

Solicitor for the Applicant:

Coleman Greig Lawyers

Counsel for the Respondent:

Mr Dunn

Solicitor for the Respondent:

Watts Mccray (NSW) Pty Ltd

ORDERS

EAA 22 of 2021
PAC 106 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS JABARA

Applicant

AND:

MR GABER

Respondent

ORDER MADE BY:	AINSLIE-WALLACE J
DATE OF ORDER:	4 MAY 2021

THE COURT ORDERS THAT:

1.Appeal EAA 22 of 2021 filed on 9 March 2021 be reinstated.

2.The applicant is to file and serve a Draft Appeal Index by no later than 4.00 pm on Friday 14 May 2021.

The applicant is to pay the respondent’s costs of meeting this application in a sum to be agreed

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jabara & Gaber has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

AINSLIE-WALLACE J:

1. On 9 March 2021 Ms Jabara (“the applicant”) appealed against interim spousal maintenance and property settlement orders made by a judge of the Federal Circuit Court on 9 February 2021 in proceedings between her and Mr Gaber (“the respondent”).

2. Following the filing of the Notice of Appeal, on 7 April 2021, the applicant’s lawyer was notified by the Eastern Appeal Registry that pursuant to r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) the Draft Index to the Appeal Books was to have been filed by 4.30 pm on 6 April 2021 and that the failure to comply with this rule had caused the appeal to be taken to be abandoned.

3. On 23 April 2021 an Application in an Appeal for reinstatement was filed and supported by affidavits by…