Malak and Mairie - [2016] FamCAFC 112

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)
Evidence Act 1995 (Cth) – s 140

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

2015

FILE NUMBER:

MLC

2355

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…

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 Malak and Mairie

Details

AGLC: Malak and Mairie [2016] FamCAFC 112
Case: [2016] FamCAFC 112
Decision Date: 3 May 2016

CaseChat Overview and Summary

The case of Malak and Mairie involved the applicants, the father and mother of twin boys, contesting a decision made by the Family Court of Australia. The dispute centred on the custody of the twins, with the father appealing an order that granted sole custody to the mother and limited his visitation rights. The applicants sought reinstatement of a Notice of Appeal and an extension of time to amend the grounds of appeal. They also sought dismissal of a specific paragraph in the orders they had previously sought in a related appeal.

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

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.

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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