TELAMA & TELAMA - [2017] FamCAFC 8

FAMILY COURT OF AUSTRALIA

TELAMA & TELAMA

[2017] FamCAFC 8

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s solicitors failed to file the draft index to the appeal books on time – Where the delay was minimal – Where the respondent would suffer no prejudice if the appeal is reinstated – Where it is in the interests of justice for the appeal to be reinstated – Application allowed – No order as to costs.

Family Law Rules 2004 (Cth) rr 22.13(3), 22.44, 24.05(2)

Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Jess v Scott (1986) 70 ALR 185
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Ms Telama

RESPONDENT:

Mr Telama

FILE NUMBER:

SYC

1450

2008

APPEAL NUMBER:

167

2016

DATE DELIVERED:

6 February 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

21 December 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

30 August 2016

LOWER COURT MNC:

[2016] FCCA 2375

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Harris Freidman Lawyers

THE RESPONDENT:

In person

Orders

That the appeal EA 167 of 2016 be reinstated.
That the time for filing the draft appeal index be extended up to and including 25 October 2016.

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 Telama & Telama 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 167 of 2016
File Number: SYC 1450 of 2008

Ms Telama

Applicant

And

Mr Telama

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed 10 November 2016 Ms Telama (“the applicant”) seeks the reinstatement of her appeal pursuant to r 22.44 of the Family Law Rules 2004 (Cth) (“the Rules”). The applicant’s appeal was deemed abandoned after she failed to file the draft index to the appeal books on time.
On 30 August 2016, Judge Henderson made orders setting aside a binding child support agreement entered into between the applicant and Mr Telama (“the respondent”). The applicant filed a Notice of Appeal against these orders on 26 September 2016.
On 4 October 2016, the Appeal Registry sent a letter to the applicant informing her that she was required to file and serve a draft index to the appeal books by 4.30 pm on 24 October 2016. On that date, at 4:39 pm and 4:42 pm, the applicant’s lawyers electronically lodged the draft index with the registry.…

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 TELAMA & TELAMA

Details

AGLC: TELAMA & TELAMA [2017] FamCAFC 8
Case: [2017] FamCAFC 8
Decision Date: 6 February 2017

CaseChat Overview and Summary

In the matter of TELAMA & TELAMA, the applicant, represented by their solicitors, sought to reinstate an appeal that had been delayed due to the failure of their legal representatives to file the draft index to the appeal books within the required time frame. The case was before the Family Court of Australia, where the respondent contested the reinstatement on the grounds of the procedural default. The court was tasked with determining whether the delay was justifiable and if the appeal could be reinstated without causing undue prejudice to the respondent.

The primary legal issue before the court was whether the minimal delay in filing the draft index warranted the reinstatement of the appeal. The court considered whether the respondent would suffer any prejudice as a result of the reinstatement and whether it was in the interests of justice to allow the appeal to proceed. The applicant argued that the delay was insignificant and that the respondent would not be prejudiced by the reinstatement, while the respondent maintained that procedural deadlines should be strictly adhered to.

The court found that the delay in filing the draft index was minimal and that the respondent would not suffer any prejudice if the appeal was reinstated. It was also determined that it was in the interests of justice to allow the appeal to proceed. Consequently, the court allowed the application for reinstatement and extended the time for filing the draft appeal index up until 25 October 2016.

The court made an order that the appeal be reinstated and that the time for filing the draft appeal index be extended. This decision underscores the court's willingness to balance procedural requirements with the overarching principle of achieving justice in individual cases.

Orders

Orders of the court

That the appeal EA 167 of 2016 be reinstated.

That the time for filing the draft appeal index be extended up to and including 25 October 2016.

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

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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