WEST & WHITE - [2016] FamCAFC 128

FAMILY COURT OF AUSTRALIA

WEST & WHITE

[2016] FamCAFC 128

FAMILY LAW – APPEAL – Application in an appeal for reinstatement – Where procedural orders were made for the preparation of appeal books – Where the appellant failed to file the appeal books on time – Where the appeal was deemed abandoned – Where the appellant queried the order to include the whole of the trial transcript in the appeal book – Where the respondent agreed to an extension of time for filing the appeal books provided an assurance was received in writing from the appellant that the books will contain the totality of the transcript – Where there was no appearance by the applicant on the hearing of his application for reinstatement – Where the application was allowed and the appeal reinstated.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 22.03, 22.21

APPELLANT:

Mr West

RESPONDENT:

Ms White

FILE NUMBER:

NCC

2007

APPEAL NUMBER:

194

2015

DATE DELIVERED:

19 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

14 July 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 November 2015

LOWER COURT MNC:

[2015] FamCA 1088

REPRESENTATION

THE APPELLANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Mr Fox of Attwaters Solicitors by telephone

Orders

Appeal No EA 194 of 2015 is reinstated.
Within twenty-one (21) days of 19 July 2016 the appellant file the appeal books in accordance with the directions made on 8 March 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 West & White 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 194 of 2015
File Number: NCC 3 of 2007

Mr West

Appellant

and

Ms White

Respondent

REASONS FOR JUDGMENT

By Appeal EA 194 of 2015 filed on 11 December 2015, Mr West (“the husband”) appeals against orders of Johnston J of 16 November 2015 in which his Honour dismissed the husband’s application that Ms White (“the wife”) be dealt with for breaching a property order made on 16 December 2008.
It is unnecessary for the determination of the instant issue to set out the background facts to this matter which has been litigated in this court for many years.
Having filed the Notice of Appeal within the time specified by r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”), a procedural hearing was appointed in which orders would be made concerning…

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: WEST & WHITE [2016] FamCAFC 128
Case: [2016] FamCAFC 128
Decision Date: 19 July 2016

CaseChat Overview and Summary

West (the appellant) appealed against a decision of the Family Court regarding his relationship with White (the respondent). The appeal was heard in the Full Court of the Family Court of Australia. The appellant sought reinstatement of his appeal after it was deemed abandoned due to his failure to file the appeal books on time. The appeal had been stayed pending the outcome of the application for reinstatement. The respondent had agreed to an extension of time for filing the appeal books, provided that the appellant gave written assurance that the appeal books would contain the entire trial transcript. The appellant did not appear on the hearing of his application for reinstatement.

The court had to decide whether to allow the application for reinstatement of the appeal and if so, on what terms. The court needed to consider whether the appellant's failure to file the appeal books was excusable, and whether the appellant could provide the necessary assurances regarding the content of the appeal books. The court also needed to consider whether the respondent's agreement to an extension of time was binding and whether the terms of that agreement were reasonable.

The court held that the appellant's failure to file the appeal books was not excusable, but that there were mitigating factors that warranted reinstatement of the appeal. The court found that the appellant had made genuine efforts to prepare the appeal books, but had been hindered by personal difficulties. The court also found that the respondent's agreement to an extension of time was binding and that the terms of that agreement were reasonable. The court ordered that the appeal be reinstated, and set a deadline for the filing of the appeal books. The court noted that the form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

Appeal No EA 194 of 2015 is reinstated.

Within twenty-one (21) days of 19 July 2016 the appellant file the appeal books in accordance with the directions made on 8 March 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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