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 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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…
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CaseChat Overview and Summary
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;
(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).
Background
Background to the litigation
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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