FAMILY COURT OF AUSTRALIAWE CAN
| KURSAT AND ORS & KURSAT | [2012] FamCAFC 9 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – where the applicants have not satisfactorily explained their failure to comply with the Family Law Rules 2004 (Cth) – where there is an arguable case on appeal – where the most significant factor is that if the application is not granted the applicants will not be able to pursue their arguable case on appeal – appeal reinstated. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent sought an order for costs in the sum of $2,000 regardless of the result of the application – where the applicants opposed any order for costs on the basis that the respondent could have agreed to the reinstatement - applicants to pay the respondent’s costs in the sum sought. |
| Family Law Act 1975 (Cth) – s 94AAA(10), (12) and (13), s 117(2) Family Law Rules 2004 (Cth) – r 22.13(2) and (3), r 22.44 |
| Batey-Elton & Elton [2009] FamCAFC 101 Bemert & Swallow (2010) FLC 93-441 Gallo v Dawson (1990) 93 ALR 479 Kennon v Spry (2008) 238 CLR 366 Rand & Rand [2009] FamCAFC 88 |
| APPLICANTS: | Mr A Kursat and Mr K Kursat and Mrs Kursat |
| RESPONDENT: | Ms Kursat |
| FILE NUMBER: | MLC | 985 | of | 2010 |
| APPEAL NUMBER: | SA | 62 | of | 2011 |
| DATE DELIVERED: | 2 February 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 16 January 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 July 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 608 |
REPRESENTATION
| COUNSEL FOR THE APPLLICANTS: | Mr Hines |
| SOLICITOR FOR THE APPELLANT: | Atlas Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Williams |
| SOLICITOR FOR THE RESPONDENT: | Pearsons Solicitors |
Orders
The Notice of Appeal filed on 25 August 2011 be reinstated.
The applicants have leave to file an Amended Notice of Appeal within 14 days of the date hereof.
The applicants file and serve a draft appeal index within 21 days of the date hereof.
Within 28 days of the date hereof the applicants pay the respondent’s costs thrown away fixed in the sum of $2,000.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kursat and Ors & Kursat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 62 of 2011
File Number: MLC 985 of 2010
| Mr A Kursat and Mr K Kursat and Mrs Kursat |
Applicants
And
| Ms Kursat |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed on 7 October 2011 in which an order is sought that the appeal which was filed on 25 August 2011 be reinstated. In addition the application seeks leave to file an amended Notice of Appeal and leave to file a draft index of appeal out of time. Neither of these two…
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- Case
- [2012] FamCAFC 9
- Decision Date
CaseChat Overview and Summary
The court found that the applicants had not provided satisfactory explanations for their non-compliance with the Family Law Rules. However, it also acknowledged that there was an arguable case on appeal. The most compelling factor in the applicants' favour was the potential loss of their right to pursue the appeal if the application for reinstatement was not granted. Balancing these considerations, the court decided that the applicants' arguable case and the significant impact of non-reinstatement outweighed their procedural shortcomings.
In light of these findings, the court reinstated the Notice of Appeal filed on 25 August 2011. The applicants were granted leave to file an Amended Notice of Appeal within 14 days, along with a draft appeal index within 21 days. Furthermore, the applicants were ordered to pay the respondent's costs of $2,000 within 28 days. This decision ensures that the applicants can continue to pursue their appeal while holding them accountable for their procedural lapses.
Orders
Orders of the court
1.
The Notice of Appeal filed on 25 August 2011 be reinstated.
2.
The applicants have leave to file an Amended Notice of Appeal within 14 days of the date hereof.
3.
The applicants file and serve a draft appeal index within 21 days of the date hereof.
4.
Within 28 days of the date hereof the applicants pay the respondent’s costs thrown away fixed in the sum of $2,000.
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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