LAWSON & HILL

[2017] FamCAFC 49

FAMILY COURT OF AUSTRALIA

LAWSON & HILL [2017] FamCAFC 49

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for reinstatement of an appeal – Where the appeal was deemed to be abandoned – Where the appellant failed to file the draft appeal index within the prescribed time – Where the appellant asserts he was not advised of the correct date for the filing of the draft appeal index – Where the appeal is not so devoid of merit that to reinstate it would be futile – Application allowed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPLICANT: Mr Lawson

RESPONDENT:	Ms Hill
FILE NUMBER:	SYC	1626	of		2012

APPEAL NUMBER: EA 15 of 2017

DATE DELIVERED: 28 March 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 28 March 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 23 December 2016

LOWER COURT MNC: [2016] FamCA 1147

REPRESENTATION

THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

1. Appeal No EA 15 of 2017 is reinstated.

2. The matter be referred to the Appeal Registrar for the purpose of conducting a procedural hearing in order settle the documents to be included in the draft appeal index.

3. Following the procedural hearing the appellant is to file and his serve his final draft appeal index with the Appeals Registry and on all other parties to the appeal within twenty one (21) days of the date of the procedural hearing referred to in order (2) 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 Lawson & Hill 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 JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number:  EA 15 of 2017
File Number:  SYC 1626 of 2012

Mr Lawson

Applicant

and

Ms Hill

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 23 December Watts J made parenting orders following contested parenting proceeding between Mr Lawson (“the father”) and Ms Hill (“the mother”).  The proceedings concern their only child who was born in 2010.  On 20 January 2017 the father’s then solicitor filed a notice of appeal against his Honour’s orders.  On 20 January 2017 the appeal registry forward a letter to the father’s solicitor telling them of the obligation to file a draft appeal index by

   
   

   17 February 2017. The draft index was not filed and so by operation of rule 22.133 of the Family Law Rules 2004 (Cth) (“the Rules”) on 17 February the appeal was deemed abandoned.

2. The father is no longer represented by the solicitors who prepared the notice of appeal and by his application in an appeal filed on 8 March he sought to have the appeal reinstated. 

3. In support of the application for reinstatement the father says that when he lodged his notice of appeal he spoke to a staff member of the appeals registry who told him that the final orders and judgment had not yet been published.  He said that he was advised that he had more than a month to file his draft appeal index.  Despite what might have been confusion about whether the judgment under appeal had in fact issued, as I have said, the registry notified the father’s solicitor.  I accept that the father did not receive that correspondence via email or post from his solicitors informing him of his obligations.  When the father became aware that the appeal had been abandoned he promptly applied to have it reinstated. 

4. The principles to be applied in a circumstance such as this are set out in Gallo v Dawson (1990) 93 ALR 479 and I do not need to repeat them, save to say that the rules of court must be obeyed but it is necessary to determine whether there would be an injustice if strict application of the rules was applied. In my view, this is such a case where there ought to be an order for reinstatement and I will make that order.

5. The father has filed a draft notice of his appeal index although it is in my view not appropriate, containing as it seems to do all of the documents filed in the proceedings, and rather than attenuate the proceedings any further I will refer the matters back to the appeal registrar and request that he conduct a procedural hearing in order to settle the documents to be included in the appeal index.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 28 March 2017.

Associate: 

Date:  28 March 2017