JAMINE & JAMINE - [2012] FamCAFC 2

FAMILY COURT OF AUSTRALIA

JAMINE & JAMINE

[2012] FamCAFC 2

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT –where the husband has not satisfactorily explained his failure to comply with the Family Law Rules 2004 (Cth) – where there is an arguable case on appeal – where the wife will suffer prejudice if the appeal is reinstated and the husband serious consequences if it is not – where the interests of justice require that the application is granted – appeal reinstated.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the wife seeks costs in the sum of $1,750 – where the costs are sought to be reserved – where there is no basis on which to reserve the question of costs – husband to pay the wife’s costs in the amount sought.

Family Law Act 1975 (Cth) – s 94(2D) and (2F), s 117(2)
Family Law Rules 2004 (Cth) – r 22.13(2) and (3), r 22.57

Batey-Elton & Elton [2009] FamCAFC 101
Bemert & Swallow (2010) FLC 93-441
Gallo v Dawson (1990) 93 ALR 479
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Mr Jamine

RESPONDENT:

Ms Jamine

FILE NUMBER:

MLC

3286

2008

APPEAL NUMBER:

SOA

2011

DATE DELIVERED:

23 January 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

17 January 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 September 2011

LOWER COURT MNC:

[2011] FamCA 792

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Matta

SOLICITOR FOR THE APPLICANT:

Bowlen Dunstan & Associates Pty

COUNSEL FOR THE RESPONDENT:	Mr Forster
SOLICITOR FOR THE RESPONDENT:	Slater & Gordon

Orders

The Notice of Appeal filed on 17 October 2011 be reinstated.
The husband file and serve a draft appeal index within 14 days of the date hereof.
Upon compliance with paragraph 2 hereof the Regional Appeal Registrar list the Notice of Appeal for a directions hearing.
The husband pay costs thrown away fixed in the sum of $1,750 to the solicitors for the wife on behalf of the wife within 28 days of the date hereof.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 73 of 2011
File Number: MLC 3286 of 2008

Mr Jamine

Applicant

And

Ms Jamine

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application in an appeal filed on 12 December 2011 by the husband in these proceedings. The application seeks orders that the Notice of Appeal filed by the husband on 17 October 2011 be reinstated and that the husband file a draft appeal index within such time as the Court deems fit.
The Notice of Appeal filed on 17 October 2011 was against orders made by Cronin J on 19 September 2011.
The appeal was taken…

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 JAMINE & JAMINE

Details

AGLC: JAMINE & JAMINE [2012] FamCAFC 2
Case: [2012] FamCAFC 2
Decision Date: 23 January 2012

CaseChat Overview and Summary

The case of Jamine & Jamine involved an appeal within the family law jurisdiction. The husband filed a notice of appeal on 17 October 2011, which was subsequently dismissed due to non-compliance with the Family Law Rules 2004. The wife applied for the reinstatement of the appeal, and the court was required to determine whether the appeal should be reinstated and if the husband should be ordered to pay costs to the wife.

The court considered the husband's failure to comply with the Family Law Rules 2004, the presence of an arguable case on appeal, and the potential prejudice to the wife if the appeal were not reinstated. The husband had not provided a satisfactory explanation for his non-compliance, and the court found that the interests of justice required the reinstatement of the appeal. Additionally, the wife's application for costs was assessed, and the court determined that there was no basis to reserve the question of costs, thus ordering the husband to pay the wife's costs in the amount sought.

The court granted the wife's application to reinstate the notice of appeal and ordered the husband to file and serve a draft appeal index within 14 days. Upon compliance with this order, the Regional Appeal Registrar was directed to list the notice of appeal for a directions hearing. The husband was also ordered to pay the wife's costs in the sum of $1,750 within 28 days of the date of the order.

Orders

Orders of the court

The Notice of Appeal filed on 17 October 2011 be reinstated.

The husband file and serve a draft appeal index within 14 days of the date hereof.

Upon compliance with paragraph 2 hereof the Regional Appeal Registrar list the Notice of Appeal for a directions hearing.

The husband pay costs thrown away fixed in the sum of $1,750 to the solicitors for the wife on behalf of the wife within 28 days of the date hereof.

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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