SUFFOLK & SUFFOLK - [2010] FamCAFC 262

FAMILY COURT OF AUSTRALIA

SUFFOLK & SUFFOLK

[2010] FamCAFC 262

FAMILY LAW - APPEAL – Application to reinstate appeal – Appellant’s solicitors filed notice of ceasing to act after appeal instituted – Attempted filing of appeal books – Appeal books did not comply with orders of Registrar – Did not contain full transcript – Appeal deemed abandoned for failure to file appeal books – Full transcript now provided to Court – Where the parties attempted to reach consent orders and failed –Where the wife opposes the reinstatement of the appeal – Where the wife has been prejudiced by the substantial delay – Where there are some serious concerns about the husband pursuing the appeal – Where orders will be made dismissing the appeal should written submissions not be filed – Where the husband has some proper matters to argue – Where the husband may suffer injustice should the appeal not be reinstated – Appeal reinstated

FAMILY LAW - COSTS – Where the husband has caused substantial delay – Where the wife has suffered prejudice – Husband to pay the wife’s costs of the appeal to be assessed

Family Law Act 1975 (Cth) s 90G(1)
Family Law Rules 2004 22.20, 22.21, 22.43(1), 22.44

Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Suffolk

RESPONDENT:

Ms Suffolk

FILE NUMBER:

BRC

4720

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

20 December 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

20 December 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:	4 September 2009
LOWER COURT MNC:	[2009] FamCA 917

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Chan Lawyers

Orders

That husband’s appeal filed on 2 October 2009 be reinstated.
That the husband file submissions in support of the appeal on or before 4.00pm 25 February 2011.
The wife file the submissions in response 21 days after the submissions of the husband have been filed.
Should the husband fail to file the submissions his appeal be dismissed.
The husband pay the wife’s costs of and incidental to the application to be assessed.

IT IS NOTED that publication of this judgment under the pseudonym Suffolk & Suffolk is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

Appeal Number: NA 73 of 2009
File Number: BRC 4720 of 2008

Mr Suffolk

Appellant

And

Ms Suffolk

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

In the husband’s amended application filed 31 May 2010, he asks for an extension of time to file an appeal. In fact that is not the difficulty in his appeal. It is that his appeal was deemed abandoned under rule 22.21 as a result of non compliance by the husband in his failure to file complete appeal books by 26 February 2010.
This matter has a long history.
The parties were married in August 2004 and separated in 2007.
A financial agreement…

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: SUFFOLK & SUFFOLK [2010] FamCAFC 262
Case: [2010] FamCAFC 262
Decision Date: 20 December 2010

CaseChat Overview and Summary

Suffolk & Suffolk involved an appeal in family law proceedings, which was initially filed on 2 October 2009. The appellant's solicitors filed a notice of ceasing to act after the appeal was instituted. Despite attempts to file appeal books, these did not comply with the Registrar's orders, specifically by not containing the full transcript. As a result, the appeal was deemed abandoned. The wife opposed the reinstatement of the appeal, arguing that she had been prejudiced by the substantial delay and that there were concerns about the husband's intentions in pursuing the appeal.

The court had to determine whether the appeal should be reinstated, considering the delay and the prejudice to the wife, as well as the potential injustice to the husband if the appeal were dismissed. The court found that the husband had some valid points to argue and that dismissing the appeal without hearing his submissions might result in an injustice. The court concluded that the appeal should be reinstated but imposed conditions to ensure timely submissions and ordered the husband to pay the wife's costs of the application due to the substantial delay he had caused.

The court ordered that the husband's appeal be reinstated, with specific timelines for filing submissions. The husband was required to file his submissions in support of the appeal by 4:00pm on 25 February 2011. The wife was to file her response 21 days after the husband's submissions were filed. Should the husband fail to file his submissions, the appeal would be dismissed. Additionally, the husband was ordered to pay the wife's costs of and incidental to the application to be assessed.

Orders

Orders of the court

That husband’s appeal filed on 2 October 2009 be reinstated.

That the husband file submissions in support of the appeal on or before 4.00pm 25 February 2011.

The wife file the submissions in response 21 days after the submissions of the husband have been filed.

Should the husband fail to file the submissions his appeal be dismissed.

The husband pay the wife’s costs of and incidental to the application to be assessed.

Background

Background to the litigation

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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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