Marino & Bello

Case [2021] FedCFamC1A 72

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Marino & Bello [2021] FedCFamC1A 72

Appeal from: Bello & Marino (No. 4) [2021] FCCA 1554
Appeal number(s): EAA 82 of 2021
File number(s): PAC 437 of 2020
Judgment of: AUSTIN J
Date of judgment: 7 December 2021
Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the appeal was deemed abandoned due to failure to file a Draft Appeal Index within 28 days of filing the Notice of Appeal – Where the applicant filed an Application in an Appeal seeking the re-instatement of the appeal – Where the Appeal Registrar dismissed the application and the applicant seeks review of that decision – Where the applicant’s explanation for the delay lacks substance – Where the proposed grounds of appeal are relatively weak – Where the applicant is not liable to suffer substantial injustice if the original orders stand – Application dismissed.
Legislation:

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 22.13

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.44

Cases cited:

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52

Markwell & Ranwick & Anor [2020] FamCAFC 232

Murray & Murray (2020) FLC 94-000; [2020] FamCAFC 293

Scott & Scott (1994) FLC 92-457; [1994] FamCA 12

Tabb & Tabb [2017] FamCAFC 169
Number of paragraphs: 35
Date of hearing: 7 December 2021
Place: Newcastle (via video link)
The Applicant: Litigant in person
The First Respondent: No appearance
The Second Respondent: No appearance

ORDERS

EAA 82 of 2021
PAC 437 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR MARINO

Applicant
AND:

MR BELLO

First Respondent

MS BELLO

Second Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

7 DECEMBER 2021

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 8 November 2021 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marino & Bello has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. On 9 July 2021, a judge of the Federal Circuit Court of Australia (as the Court was then known) made an order compelling…

Continue reading Marino & Bello

Sign in free to access the full text

Details
AGLC
Marino & Bello [2021] FedCFamC1A 72
Case
[2021] FedCFamC1A 72
Decision Date

CaseChat Overview and Summary

In the matter of Marino & Bello, the applicant sought to re-instate an appeal that had been deemed abandoned by the Family Court. The primary issue before the court was whether the applicant could provide satisfactory evidence to justify the delay in filing a draft index, which was necessary to reinstate the appeal. The applicant claimed that an exacerbation of a medical condition rendered him incapable of fulfilling the procedural requirement within the stipulated time frame.

The legal issues before the court were whether the applicant's evidence was sufficient to demonstrate his incapacity and whether this justified the delay in filing the draft index. The applicant relied on medical certificates and affidavits from his treating doctors, but these documents only covered periods prior to the abandonment of the appeal. The court needed to determine if these documents, combined with the applicant's explanations, provided a reasonable justification for the delay.

Ryan J found that the applicant had not provided adequate evidence to substantiate his claim of incapacity during the relevant period. The medical certificates and affidavits were either outdated or did not cover the period in question. Despite the applicant's assertions, the court concluded that the evidence was insufficient to demonstrate continuous incapacity from July to October 2021. Consequently, the application to re-instate the appeal was dismissed.

The court's final orders were that the applicant's application to re-instate the appeal was dismissed and that no further costs be awarded.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ryan J held similarly in Markwell & Ranwick & Anor [2020] FamCAFC 232 at [23]–[36].The evidence In support of his application to re-instate the appeal, the applicant relied upon his affidavit filed on 19 October 2021 and, in support of his review application, the further affidavit he filed on 8 November 2021. In effect, the applicant contended that he was:…incapable of filing the draft index as required within 28 days due to further exacerbation of a medical condition. To verify his ailment, the applicant annexed to his first affidavit two documents prepared by his treating doctors. The first was an affidavit sworn in December 2020 by his immunologist, filed in unrelated proceedings before the Supreme Court of NSW, confirming the applicant’s condition had not been diagnosed, but requesting that he be permitted to attend “his court trial by video-link”. The second was a letter prepared by the applicant’s general practitioner in May 2021, confirming his condition had still not yet been diagnosed, but certifying he was “unfit to continue court or work” and “currently unfit to travel interstate”. As can be seen, taken at its highest, such medical evidence only confirms the applicant’s unfitness for certain forms of activity (being travel, attending court or work) up until May 2021. Significantly, the applicant filed his appeal in July 2021, two months after the latest medical certificate was prepared. In his second affidavit, he deposed:The appeal was deemed abandoned by my failure to provide a tiny draft index document due to exacerbation of a medical condition which left me entirely incapacitated and bed-ridden for months. No further medical evidence was then adduced to corroborate his medical condition in the period of three months between 23 July 2021 (when he filed his Notice of Appeal without any legal assistance) and 19 October 2021 (when he filed his re-instatement application). In relation to such lack of corroboration, the applicant explained:There is no medical documents which covers the months I was bed-ridden as I could not go outside given the severity however my GP will gladly provide same as she is well aware of the condition and severity as many appointments were by telephone as sometimes I was too ill (sic). But, on the hearing of this review application, the applicant tendered two further documents. The first was a letter dated 30 November 2021 prepared by the applicant’s immunologist (Exhibit A). It confirmed his admission to hospital on four occasions between March and June 2021, during which period the doctor said the applicant “was not able to work” and was “quite ill”. The second was an historical medical certificate dated 25 September 2020 (Exhibit B) but, given its antiquity, it was of no assistance. In any event, it only attested to the applicant’s need to wear sunglasses while participating in “court video call conferencing”. The applicant confirmed his two affidavits and the two exhibits comprised the totality of the evidence upon which he wished to rely. Consequently, there is still no corroborative medical evidence to verify the applicant’s incapacity between July and October 2021.Disposition

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.