FAMILY COURT OF AUSTRALIA
| MALAK & MAIRIE | [2016] FamCAFC 112 |
| FAMILY LAW – APPEAL – REINSTATEMENT – Where the applicant seeks to reinstate an appeal deemed abandoned when appeal books were not received within the time ordered by the Appeal Registrar – Where there is an adequate explanation for the failure to file the appeal books within time – Where it is not possible on the limited material before the court to find that all of the grounds of appeal are completely devoid of merit – Where there is even the remotest chance of success an appeal should be reinstated – Where there is prejudice to the applicant if the appeal is not reinstated and to the respondent if the appeal is reinstated – Appeal reinstated. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| 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 Malak |
| RESPONDENT: | Ms Mairie |
| APPEAL NUMBER: | SOA | 57 | of | 2015 |
| FILE NUMBER: | MLC | 2355 | of | 2010 |
| DATE DELIVERED: | 3 May 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 3 May 2016 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
The Notice of Appeal filed on 14 August 2015 be reinstated.
The applicant father have an extension of time to appeal against the order made by Berman J on 28 May 2015 and that be attended to by the applicant father filing and serving an Amended Notice of Appeal by the close of business on Tuesday 31 May 2016 to include an appeal against that order and amending his grounds of appeal.
Paragraph 3 of the orders sought in the application in an appeal filed on 26 April 2016 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Malak & Mairie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 57 of 2015
File Number: MLC 2355 of 2010
| Mr Malak |
Applicant
And
| Ms Mairie |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
There are two applications in an appeal before the Court today.
The first application is an application filed by Mr Malak (“the father”) on 29 January 2016 seeking, in effect, a reinstatement of his abandoned appeal. I refer to it in that way because the orders sought are not in that precise terminology, but it is clear reinstatement is what the father seeks.
The second application is the application in an appeal filed by the father on 26 April 2016 in which he seeks orders, again, effectively for a reinstatement of his abandoned appeal. Pausing there, the order sought is not in that terminology but, again, it is clear that that is what the father seeks.
The father also…
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- AGLC
- Malak and Mairie [2016] FamCAFC 112
- Case
- [2016] FamCAFC 112
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether to reinstate the Notice of Appeal filed by the father, allow an extension of time to amend the grounds of appeal, and dismiss a specific paragraph in the orders sought in a related appeal. The court had to consider whether the father's application was made within a reasonable time and whether there were any grounds to justify the extension of time and amendment of the appeal grounds. Additionally, the court needed to assess the appropriateness of dismissing a particular paragraph of the orders sought in the related appeal.
The court found that the father's Notice of Appeal should be reinstated, as it had been improperly dismissed. It was determined that the father's application for an extension of time to appeal and amend the grounds of appeal was made within a reasonable time, considering the circumstances. The court further decided that the specific paragraph in the orders sought in the related appeal should be dismissed, as it was not aligned with the overall objectives of the appeal. Consequently, the court ruled in favour of the father's application, allowing for the reinstatement of the Notice of Appeal, granting an extension of time to amend the grounds of appeal, and dismissing a specific paragraph of the orders sought in the related appeal. There was no order as to costs.
Orders
Orders of the court
1.
The Notice of Appeal filed on 14 August 2015 be reinstated.
2.
The applicant father have an extension of time to appeal against the order made by Berman J on 28 May 2015 and that be attended to by the applicant father filing and serving an Amended Notice of Appeal by the close of business on Tuesday 31 May 2016 to include an appeal against that order and amending his grounds of appeal.
3.
Paragraph 3 of the orders sought in the application in an appeal filed on 26 April 2016 be dismissed.
4.
There be no order as to costs.
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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