Poirier & Poirier - [2024] FedCFamC1A 165

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Poirier & Poirier [2024] FedCFamC1A 165

Appeal from: Poirier & Poirier [2024] FedCFamC2F 559

Appeal number: NAA 132 of 2024

File number: BRC 8438 of 2021

Judgment of: AUSTIN J

Date of judgment: 20 September 2024

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the decision of the appeal registrar to dismiss her Application in an Appeal seeking reinstatement of an abandoned appeal – Where the failure to file the draft appeal index in time was the fault of the applicant’s previous lawyers – Where the applicant sought to immediately correct the default – Where the respondent admits the appeal evinces merit in some respects – Where there is more prejudice to the applicant if the appeal is not reinstated than to the respondent if the appeal is reinstated – Appeal reinstated.

Legislation:
Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13, 13.07, 13.14, 13.44,

Cases cited:
Allan & Ors & Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Farrington & Belkis [2024] FedCFamC1A 133

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

Number of paragraphs: 30

Date of hearing: 18 September 2024

Place: Newcastle (via Microsoft Teams)

The Applicant: Litigant in person

Counsel for the Respondent: Mr Tonge

Solicitor for the Respondent: Cooper Grace Ward Lawyers
ORDERS

NAA 132 of 2024
BRC 8438 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS POIRIER

Applicant

AND:
MR POIRIER

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

20 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.The orders made by the appeal registrar on 7 August 2024 are set aside.
2.The Notice of Appeal filed on 30 May 2024 is re-instated.
3.Otherwise:
(a)the Application in an Appeal filed on 15 July 2024 is dismissed;
(b)the Response to an Application in an Appeal filed on 19 July 2024 is dismissed;
(c)the Application in an Appeal filed on 28 August 2024 is dismissed; and
(d)the Response to an Application in an Appeal filed on 12 September 2024 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 Poirier & Poirier has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:

These reasons explain the disposition of an application…

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 Poirier & Poirier

Details

AGLC: Poirier & Poirier [2024] FedCFamC1A 165
Case: [2024] FedCFamC1A 165
Decision Date: 20 September 2024

CaseChat Overview and Summary

The case of Poirier & Poirier involved an appeal by Ms Poirier against a property settlement order made by a primary judge on 3 May 2024. Ms Poirier had appealed this decision on 30 May 2024, but the appeal was subsequently deemed abandoned because she failed to file a draft appeal index by 27 June 2024, as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Ms Poirier then sought to have the appeal reinstated, but her application was dismissed by the appeal registrar on 7 August 2024. Subsequently, Ms Poirier applied for judicial review of the registrar's decision, which was heard as an original hearing. The court was required to decide whether the appeal should be reinstated.

The court considered the legal principles governing applications to reinstate an abandoned appeal, including the need to show that strict compliance with the Rules would work an injustice to the applicant. The court noted that the applicant had promptly sought to correct the default and that the respondent had admitted the appeal had merit in some respects. The court also considered the relative prejudice to both parties if the appeal was or was not reinstated. The court found that there was more prejudice to Ms Poirier if the appeal was not reinstated than to Mr Poirier if it was reinstated. The court therefore exercised its discretion in favour of Ms Poirier and ordered the appeal to be reinstated.

In light of the above, the court set aside the orders made by the appeal registrar on 7 August 2024. The court also dismissed the various applications and responses that had been filed in relation to the appeal, but reinstated the Notice of Appeal filed on 30 May 2024. The form of the order is subject to entry in the Court’s records.

Orders

Orders of the court

NAA 132 of 2024

BRC 8438 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS POIRIER

Applicant

AND:

MR POIRIER

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

20 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The orders made by the appeal registrar on 7 August 2024 are set aside.

2. The Notice of Appeal filed on 30 May 2024 is re-instated.

3. Otherwise:

(a) the Application in an Appeal filed on 15 July 2024 is dismissed;

(b) the Response to an Application in an Appeal filed on 19 July 2024 is dismissed;

(d) the Response to an Application in an Appeal filed on 12 September 2024 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).

Background

Background to the litigation

These reasons explain the disposition of an application to review the decision of an appeal registrar made on 7 August 2024, refusing the applicant’s application to reinstate her appeal which was deemed abandoned.Background On 3 May 2024, the primary judge made property settlement orders to finalise a financial cause between the parties under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). The orders effected a division of the parties’ property and superannuation in shares of 60 per cent to the applicant and 40 per cent to the respondent. The applicant appealed from that judgment on 30 May 2024. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) required the applicant to file a draft appeal book index by 27 June 2024 (r 13.14(2)(a)(i)), in default of which the appeal was deemed abandoned (r 13.14(3)). She failed to file the draft appeal book index by that date and so the appeal was abandoned. On 15 July 2024, the applicant filed an Application in an Appeal seeking the appeal’s reinstatement (r 13.44), which application the respondent opposed by his Response filed on 19 July 2024. The contested application was heard by the appeal registrar on 6 August 2024 and dismissed with costs on 7 August 2024. On 28 August 2024, the applicant filed an Application in an Appeal seeking judicial review of the appeal registrar’s decision, in rebuttal of which the respondent filed a Response to an Application in an Appeal on 12 September 2024. The review hearing must be conducted as an original hearing of the applicant’s reinstatement application. The applicant relied upon:(a)her affidavit filed on 15 July 2024 in support of the reinstatement application; and(b)her affidavit filed on 28 August 2024 in support of the review application The respondent relied upon:(a)his affidavit filed on 2 August 2024 in rebuttal of the reinstatement application; and (b)his affidavit filed on 12 September 2024 in rebuttal of the review application. Legal principles In Allan & Ors & Allan & Ors (2014) FLC 93-606, the Full Court said this with respect to the legal principles governing applications to reinstate appeals:32.The discretion to re-instate an abandoned appeal is not exercised in an unstructured or unprincipled way, but rather in accordance with the established legal principles set out within Gallo v Dawson (1990) 93 ALR 479 at 480 (see Haykal & Krawiec & Anor [2014] FamCAFC 110 at [31], [40]–[46]; Bemert & Swallow (2010) FLC 93–441 at [128]–[131]). As was made plain in Gallo v Dawson, the discretion may only be exercised in favour of the applicant upon proof that strict compliance with the Rules will “work an injustice upon the applicant”. This observation was also recently made in Farrington & Belkis [2024] FedCFamC1A 133:10.When an application is made for an extension of time within which to appeal, the merit of the intended appeal is pivotal. However, in cases like the present, where the default sought to be remedied instead relates to a failure to meet a time limit within a properly commenced appeal, the merit of the appeal is not the paramount consideration (Jackamarra v Krakouer (1998) 195 CLR 516 at [4] , [7] , [9] , [33] , [66] and [73]).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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NAA 132 of 2024 BRC 8438 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS POIRIER Applicant
AND:	MR POIRIER Respondent

Appeal from:	Poirier & Poirier [2024] FedCFamC2F 559
Appeal number:	NAA 132 of 2024
File number:	BRC 8438 of 2021
Judgment of:	AUSTIN J
Date of judgment:	20 September 2024
Catchwords:	FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the decision of the appeal registrar to dismiss her Application in an Appeal seeking reinstatement of an abandoned appeal – Where the failure to file the draft appeal index in time was the fault of the applicant’s previous lawyers – Where the applicant sought to immediately correct the default – Where the respondent admits the appeal evinces merit in some respects – Where there is more prejudice to the applicant if the appeal is not reinstated than to the respondent if the appeal is reinstated – Appeal reinstated.
Legislation:	Family Law Act 1975 (Cth) Pt VIII Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13, 13.07, 13.14, 13.44,
Cases cited:	Allan & Ors & Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Farrington & Belkis [2024] FedCFamC1A 133 Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27
Number of paragraphs:	30
Date of hearing:	18 September 2024
Place:	Newcastle (via Microsoft Teams)
The Applicant:	Litigant in person
Counsel for the Respondent:	Mr Tonge
Solicitor for the Respondent:	Cooper Grace Ward Lawyers

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	20 SEPTEMBER 2024