FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – where the husband sought to have his “permanently stayed” property appeal “re-instated” – where the court considers the husband is actually seeking an extension of time to pay security for the wife’s costs of the appeal which he was previously ordered to pay but did not pay – whether an extension of time to pay security is in the overall interests of justice – husband granted an extension of time to pay the security for the costs of the wife and providing this is done on the second working day after the making of these orders the permanent stay on the husband’s appeal is lifted.
FAMILY LAW - APPEAL – COSTS – husband sought an indulgence from the court – husband to pay the wife’s costs of and incidental to the application.
That the time provided in Order 2 of the orders of the Full Court made on 23 August 2006, for the husband to pay security for the costs of the wife in Appeal Number EA 16A of 2006 (“the appeal”) be extended until 4 pm on the second working day after the date of these orders, notwithstanding that the time provided in Order 2 of the orders made on 23 August 2006 has passed.
That provided the husband has by 4 pm on the second working day after the date of these orders deposited by way of security for the costs of the wife in the appeal a bank cheque for the sum of $45,000 with the wife’s solicitors, Messrs Adrian Twigg & Co to be held by that firm upon trust to abide the further order of the Court, then:
(a)the permanent stay on the appeal imposed by the order of the Full Court made on 23 August 2006 shall be lifted, and
(b)the appeal be listed for hearing at the next available sitting of the Full Court in Sydney and subject to any order of the Full Court which hears the appeal shall be heard on the basis that the appeal is against Orders…
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.
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Details
AGLC
Rand & Rand [2009] FamCAFC 88
Case
[2009] FamCAFC 88
Decision Date
CaseChat Overview and Summary
Rand & Rand involved an appeal in family law, with the appellant seeking reinstatement of their appeal which had been deemed abandoned. The abandonment arose from the appellant's failure to file a draft appeal index within the time required by rule 22.13 of the Family Law Rules 2004 (Cth). The respondent opposed the application for reinstatement, contending that the appellant's delay was inexcusable and that allowing the reinstatement would prejudice their rights. The court was required to consider whether the interests of justice required that the appeal be reinstated despite the procedural default.
The court considered the circumstances surrounding the delay and the reasons provided by the appellant for the non-compliance. It found that while the procedural default was significant, the appellant had provided satisfactory explanations for the delay and had acted promptly once made aware of the requirement to file the draft appeal index. The court was also mindful of the potential prejudice to the respondent, but concluded that the interests of justice in this instance favoured reinstatement of the appeal. The court found that the appellant's explanation was plausible and that the delay did not result from any lack of diligence on their part.
Consequently, the court ordered the reinstatement of the Notice of Appeal filed on 3 December 2013. The appellant was required to file and serve a draft appeal index within fourteen days of the date of the judgment. No order was made as to costs. This decision underscores the court's willingness to consider applications for reinstatement where the interests of justice so require, provided that the delay can be adequately explained and the respondent's rights are not unduly prejudiced.
Orders
Orders of the court
1.The Notice of Appeal filed on 3 December 2013 be reinstated.
2.The appellant file and serve a draft appeal index within fourteen [14] days of the date hereof.