Kursat & Ors and Kursat - [2012] FamCAFC 9

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

2010

APPEAL NUMBER:

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…

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.

Keep reading for free

Create a free CaseChat account to read Kursat & Ors and Kursat and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FamCAFC 9
Decision Date: 2 February 2012

CaseChat Overview and Summary

The applicants, Kursat and others, brought an appeal against a decision of the Family Court, with the respondent being Kursat. The applicants sought reinstatement of their appeal after it was dismissed for non-compliance with the Family Law Rules 2004 (Cth). The central issue before the court was whether the applicants' failure to comply with the rules could be overlooked given that they had an arguable case on appeal. Additionally, the court had to consider whether the significant factor of the applicants' inability to pursue their appeal if not reinstated warranted a favourable outcome.

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

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.