TAQUE & LONE - [2014] FamCAFC 83

FAMILY COURT OF AUSTRALIA

[2014] FamCAFC 83
TAQUE & LONE

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the appeal was deemed abandoned after the appellant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – where the application is opposed by the respondent – where the interests of justice require that the application be granted – appeal reinstated.

Family Law Act 1975 (Cth) - s 90RD(1), ss 94(2D) & (2F)

Family Law Rules 2004 (Cth) – r 22.13, r 22.44 & Chapter 22

Batey-Elton & Elton [2009] FamCAFC 101
Bemert & Swallow (2010) FLC 93-441
Gallo v Dawson (1990) 93 ALR 479
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Ms Taque

RESPONDENT:

Mr Lone

FILE NUMBER:

ADC

2012

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

5 May 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

5 May 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 November 2013

LOWER COURT MNC:

[2013] FCCA 2346

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Patsouris & Associates

THE RESPONDENT

In person

Orders

The Notice of Appeal filed on 3 December 2013 be reinstated.
The appellant file and serve a draft appeal index within fourteen [14] days of the date hereof.
No order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Taque & Lone 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 ADELAIDE

Appeal Number: SOA 78 of 2013
File Number: ADC 58 of 2012

Ms Taque

Applicant

And

Mr Lone

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

This is an application in an appeal filed by Ms Taque (“the applicant”) on

10 April 2014 seeking in effect that the Notice of Appeal filed in this matter on 3 December 2013 be reinstated.
The application is supported by an affidavit also filed on 10 April 2014, and that is an affidavit of a Law Clerk employed by the solicitors for the applicant.
There is a further order sought in the application, namely, that the time for the filing of a draft appeal index be extended to the date of filing of this application. That is not an order that need be sought, and it is not an order that I would make. If I was prepared to reinstate the appeal then there would be consequential orders made in relation to the filing of a draft appeal index, and perhaps for the listing of the matter for a directions hearing.
Thus the application I need to deal with is the application that the Notice of Appeal, referred to above, be reinstated.
The application is opposed by Mr Lone (“the respondent”).
As I have indicated the Notice of Appeal was filed on 3 December 2013. That Notice sought to…

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 TAQUE & LONE

Details

AGLC: TAQUE & LONE [2014] FamCAFC 83
Case: [2014] FamCAFC 83
Decision Date: 5 May 2014

CaseChat Overview and Summary

The matter before the court was an appeal by Taque against Lone, which had been deemed abandoned due to the appellant's failure to file a draft appeal index within the stipulated time under rule 22.13 of the Family Law Rules 2004 (Cth). The court was asked to consider an application for the reinstatement of the appeal, which was opposed by the respondent, Lone. The primary focus of the court's attention was whether the interests of justice warranted the granting of the application for reinstatement.

In examining the legal issues, the court considered whether the appellant's delay in filing the draft appeal index was justified under the circumstances, and if so, whether the application for reinstatement should be allowed. The court evaluated the reasons for the delay, the conduct of the parties, and the potential impact of the delay on the respondent. The court also took into account the importance of the matters at stake and the likelihood of achieving a just outcome if the appeal were to proceed.

The court concluded that the interests of justice required the reinstatement of the appeal. It found that the appellant's delay was not entirely inexcusable, and that the respondent would not be prejudiced by the reinstatement. The court also noted that there were significant issues to be determined in the appeal that warranted further judicial consideration. Consequently, the court allowed the application for reinstatement and ordered the appellant to file and serve a draft appeal index within fourteen days. No order was made as to costs.

Orders

Orders of the court

The Notice of Appeal filed on 3 December 2013 be reinstated.

The appellant file and serve a draft appeal index within fourteen [14] days of the date hereof.

No order as to costs.

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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