TAEBKE & TAEBKE - [2018] FamCAFC 25

FAMILY COURT OF AUSTRALIA

TAEBKE & TAEBKE

[2018] FamCAFC 25

APPLICATION IN AN APPEAL – Reinstatement – Where the appeal was deemed abandoned because the applicant failed to file a draft index to the appeal books in the prescribed time – Where it cannot be said that the grounds of appeal are devoid of merit – Appeal reinstated.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.13

Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Ms Taebke

RESPONDENT:

Mr Taebke

INDEPENDENT CHILDREN’S LAWYER:

Ms Hernandez

FILE NUMBER:

SYC

8573

2016

APPEAL NUMBER:

2018

DATE DELIVERED:

15 February 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

13 February 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 December 2017

LOWER COURT MNC:

[2017] FCCA 3132

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Bridgett (direct brief)

SOLICITOR FOR THE RESPONDENT:

Mr Shepherd of Shepherds the Family Law Specialists

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fermanis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

Orders made on 13 February 2018

The appeal EA 2 of 2018 be reinstated.
The Appellant file and serve a draft appeal index no later than 4.00pm Monday 26 February 2018.

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 Taebke & Taebke 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 Number: EA 2 of 2018
File Number: SYC 8573 of 2016

Ms Taebke

Applicant

and

Mr Taebke

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 13 February 2018 I made orders reinstating the appeal of Ms Taebke (“the mother”). These are the reasons for those orders.
The appeal relates to interim parenting orders made by Judge Kemp on

14 December 2017 between the mother and Mr Taebke (“the father”) in relation to the parties’ only child, C, who was born in 2007 (“the child”). The effect of the orders was to change the child’s residence from living with the mother to living with the father and that, for a period of time after the child moved residence, the child would spend no time with the mother. The child had lived with the mother since separation.
The orders provided that after three months from the date of the orders the mother spend time with the child each alternate weekend, conditional upon her returning the child…

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 TAEBKE & TAEBKE

Details

AGLC: TAEBKE & TAEBKE [2018] FamCAFC 25
Case: [2018] FamCAFC 25
Decision Date: 15 February 2018

CaseChat Overview and Summary

The case involves Taebke & Taebke, where the appellant sought reinstatement of their appeal after it was deemed abandoned due to the failure to file a draft index to the appeal books within the prescribed time. The dispute was heard in the Supreme Court of South Australia. The primary issue before the court was whether the appeal could be reinstated given that the grounds of appeal were not devoid of merit, and whether the failure to file the draft index was a mere procedural oversight that could be rectified.

The court examined whether the failure to file the draft index constituted a significant procedural lapse that warranted abandonment of the appeal, or if it was a minor oversight that could be addressed through reinstatement. The court considered that the grounds of appeal, though not argued in the draft index, had potential merit and did not warrant dismissal of the appeal outright. The court was satisfied that the failure to file the draft index was a procedural error rather than a substantive issue that would impact the merits of the appeal.

Ultimately, the court decided to reinstate the appeal, holding that the grounds of appeal were not devoid of merit and that the failure to file the draft index was a procedural issue that could be remedied. The court emphasised the importance of procedural compliance while also recognising the potential merit of the grounds of appeal. The appeal was thus reinstated to allow for the presentation of the substantive issues.

Orders