MULHOLLAND & MULHOLLAND

FAMILY COURT OF AUSTRALIA

MULHOLLAND & MULHOLLAND [2018] FamCAFC 35

FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the applicant’s solicitors failed to file the draft appeal index within the prescribed time – Default of solicitors should not readily be borne by their client – Where the appeal is not devoid of merit – Application allowed – Order for the applicant to pay the respondent’s costs of the application.

Family Law Rules 2004 (Cth) rr 22.13, 22.44

Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Jess v Scott (1986) 12 FCR 187
Rand & Rand [2009] FamCAFC 88

APPLICANT: Ms Mulholland

RESPONDENT: Mr Mulholland

FILE NUMBER: SYC 7677 of 2014

APPEAL NUMBER: EA 126 of 2017

DATE DELIVERED: 23 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 15 February 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 6 December 2017

LOWER COURT MNC: [2017] FCCA 2979

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tockar

SOLICITOR FOR THE APPLICANT: Uther Webster & Evans

SOLICITOR FOR THE RESPONDENT: Mills Oakley

Orders

1. Appeal EA126 of 2017 is reinstated.

2. The time for the filing of a draft appeal index is extended up to and including 2 March 2018.

3. The applicant is to pay the respondent’s costs of this application.

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 Mulholland & Mulholland 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 126 of 2017
File Number: SYC 7677 of 2014

Ms Mulholland

Applicant

And

Mr Mulholland

Respondent

REASONS FOR JUDGMENT

Introduction

1. By an Application in an Appeal filed on 25 January 2018, Ms Mulholland (“the applicant”) seeks reinstatement of her appeal against orders made by Judge Henderson on 6 December 2017.  Those orders resolved property proceedings between the applicant and Mr Mulholland (“the respondent”). 

2. A Notice of Appeal was filed on 21 December 2017. Pursuant to r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) the applicant was required to file and serve a draft appeal index by 18 January 2018. She did not do so and her appeal was deemed to be abandoned (r 22.13(3) of the Rules).

3. Pursuant to r 22.44 of the Rules the Court can reinstate an appeal and pursuant to r 22.13(2)(b) extend the period for filing a draft appeal index.

The applicable principles

1. The principles to be applied in this case are set out in…