WALDON & KIPLEY - [2015] FamCAFC 53

FAMILY COURT OF AUSTRALIA

WALDON & KIPLEY

[2015] FamCAFC 53

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appeal was deemed abandoned for failure to file the appeal books in time – Whether the appeal should be reinstated – There was no submission that the appeal is devoid of merit, the appellant has provided an explanation for the delay and there is no prejudice to the respondent – Appeal reinstated with a self-executing order for dismissal in the event of further non-compliance.

Family Law Rules 2004 (Cth) – r 22.21

Gallo v Dawson (1990) 64 ALJR 458

APPELLANT:

Mr Waldon

RESPONDENT:

Ms Kipley

FILE NUMBER:

HBC

246

2012

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

6 March 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne by video link from Hobart

JUDGMENT OF:

Thackray, Murphy &
Kent JJ

HEARING DATE:

6 March 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 August 2014

LOWER COURT MNC:

[2014] FamCA 728

REPRESENTATION

THE APPELLANT:

In person by telephone

COUNSEL FOR THE RESPONDENT:

Mr FitzGerald

SOLICITOR FOR THE RESPONDENT:

FitzGerald & Browne

Orders

The appeal (SOA 57 of 2014) filed on 2 September 2014 be reinstated.
The respondent’s application in an appeal filed on 22 December 2014 in relation to costs and the respondent’s response filed on 14 January 2015 be adjourned generally.
The time within which the appellant had to file and serve appeal books in accordance with the directions made by the Appeals Registrar on 21 October 2014 be extended to 42 days from today.
In the event the appellant fails to file and serve the appeal books within the extended time provided in paragraph 4:
(a) the appeal stand dismissed; and
(b)the respondent be at liberty to relist her application in an appeal filed on 22 December 2014 in relation to costs.
The costs of today’s hearing be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldon & Kipley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 57 of 2014
File Number: HBC 246 of 2012

Mr Waldon

Appellant

And

Ms Kipley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

By his application in an appeal filed on 25 February 2015, Mr Waldon seeks the reinstatement of his appeal against orders made by Benjamin J on 14 August 2014.
The appeal was filed in good time on 2 September 2014. Procedural orders were made on 21 October 2014, including an order for the appeal books to be filed by 2 December 2014. As the wife’s solicitor appropriately conceded in his submissions this morning, this was an unusually tight timetable for the filing of appeal books in a non-urgent matter.
The appellant failed to file the appeal books by 2 December 2014 and sought a short extension to 12 December 2014. The respondent,…

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

Case: [2015] FamCAFC 53
Decision Date: 6 March 2015

CaseChat Overview and Summary

In the matter of WALDON & KIPLEY, the parties were engaged in a legal dispute that ultimately reached the Supreme Court of Australia. The central issue in this case involved the enforcement of an appeal process, specifically concerning the timeline and procedural compliance of the appellant in the case. The respondent, having filed an application in relation to costs, sought specific relief and raised procedural matters within the appellate framework.

The court was tasked with determining whether the appeal filed by the appellant should be reinstated, and if so, whether the procedural timelines and extensions granted by the Appeals Registrar were appropriate. Additionally, the court had to consider the respondent's application regarding costs and the appropriate handling of procedural applications in the context of an ongoing appeal.

The court's reasoning highlighted the necessity for strict adherence to procedural timelines in appellate matters, while also recognising the importance of ensuring justice and fairness in the resolution of disputes. It was determined that the appeal should be reinstated, given the appellant's subsequent compliance with procedural directives. The court further extended the time for filing and serving appeal books, ensuring that the appellant had a reasonable opportunity to meet the required deadlines. However, should the appellant fail to comply with the extended timeframe, the appeal would be dismissed, and the respondent would be allowed to relist her application concerning costs. The court also decided to reserve the costs of the hearing for further consideration.

Orders

Orders of the court

The appeal (SOA 57 of 2014) filed on 2 September 2014 be reinstated.

The respondent’s application in an appeal filed on 22 December 2014 in relation to costs and the respondent’s response filed on 14 January 2015 be adjourned generally.

The time within which the appellant had to file and serve appeal books in accordance with the directions made by the Appeals Registrar on 21 October 2014 be extended to 42 days from today.

In the event the appellant fails to file and serve the appeal books within the extended time provided in paragraph 4:

(a) the appeal stand dismissed; and

(b) the respondent be at liberty to relist her application in an appeal filed on 22 December 2014 in relation to costs.

The costs of today’s hearing be reserved.

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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