Rilak & Tsocas (No 2) - [2017] FamCAFC 126

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO. 2)

[2017] FamCAFC 126

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Twelve months after orders sought to be appealed were made – No explanation for lengthy delay in first appeal – Inadequate explanation for lengthy delay in second appeal – No merit in the appeals – Substantial injustice to respondent – Applications dismissed.

Family Law Act 1975 (Cth) s 117(2A)

Family Law Rules 2004 (Cth)

D & D (Costs) (No. 2) (2010) FLC 93-435
Gallo v Dawson (1990) 93 ALR 479

Rilak & Tsocas(No 8) [2015] FamCA 1235
Rilak & Tsocas [2016] FamCA 546
Rilak & Tsocas(No 2) [2016] FamCA 590

APPLICANT:

Ms Rilak

RESPONDENT:

Mr Tsocas

FILE NUMBER:

SYC

2062

2010

FIRST APPEAL NUMBER:

2017

SECOND APPEAL NUMBER:

2017

DATE DELIVERED:

12 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

11 July 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

7 July 2016
22 July 2016

LOWER COURT MNC:

[2016] FamCA 546
[2016] FamCA 590

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

The application for an extension of time in appeal EA 68 of 2017 from the orders made by Stevenson J on 7 July 2016 is dismissed.
The application for an extension of time in appeal EA 69 of 2017 from the orders made by Rees J on 22 July 2016 is dismissed.
The applicant pay the respondent’s costs of and incidental to the applications, such costs to be agreed or assessed and to be paid twenty-eight (28) days after any such assessment or agreement.

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 Rilak & Tsocas (No. 2) 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Numbers: EA 68 of 2017; EA 69 of 2017
File Number: SYC 2062 of 2010

Ms Rilak

Applicant

and

Mr Tsocas

Respondent

REASONS FOR JUDGMENT

Ms Rilak (“the applicant”) has filed two applications seeking an extension of time in which to bring appeals from orders made by Stevenson J on 7 July 2016 and orders made by Rees J on 22 July 2016.
On 7 July 2016 Stevenson J dismissed an Application in a Case filed by the applicant on 4 July 2016 in which she sought a review of a Registrar’s decision to reject for filing an application seeking interim…

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 Rilak & Tsocas (No 2)

Details

AGLC: Rilak & Tsocas (No 2) [2017] FamCAFC 126
Case: [2017] FamCAFC 126
Decision Date: 12 July 2017

CaseChat Overview and Summary

The matter of Rilak & Tsocas (No 2) involved the applicants seeking extensions of time for appeals from orders made by two different judges in the Federal Circuit Court. The first application, EA 68 of 2017, was an appeal from orders made by Stevenson J on 7 July 2016, while the second application, EA 69 of 2017, was from orders made by Rees J on 22 July 2016. Both applications were heard and dismissed by the Federal Court.

The primary legal issues before the court were whether the applicants had provided sufficient grounds to justify an extension of time for lodging their appeals, and whether any delay had caused substantial injustice. The applicants had to demonstrate that the delay was not attributable to any neglect or default on their part and that it was reasonable to grant an extension under the circumstances.

The court found that the applicants had not provided adequate justification for the delay in lodging their appeals. It was determined that the delay was due to the applicants' own mismanagement rather than any external factors. The court also noted that the delay had caused inconvenience and potential prejudice to the respondents. Consequently, the applications for extensions of time were dismissed, and the applicants were ordered to pay the respondents' costs associated with the applications. The form of the orders was subject to being recorded in the Court’s official documents.

Orders

Orders of the court

The application for an extension of time in appeal EA 68 of 2017 from the orders made by Stevenson J on 7 July 2016 is dismissed.

The application for an extension of time in appeal EA 69 of 2017 from the orders made by Rees J on 22 July 2016 is dismissed.

The applicant pay the respondent’s costs of and incidental to the applications, such costs to be agreed or assessed and to be paid twenty-eight (28) days after any such assessment or agreement.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.