Bakal and Kapicic
[2017] FamCAFC 38
•23 February 2017
FAMILY COURT OF AUSTRALIA
| BAKAL & KAPICIC | [2017] FamCAFC 38 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – oral application for an extension of time to file a summary of argument – where the appellant has previously complied with the direction to file appeal books – where there has been some explanation for the delay – where there are no consequences for the respondent if an extension of time is granted – where extension granted. |
| Family Law Rules 2004 (Cth) |
| Gallo & Dawson (1990) 93 ALR 479 |
| APPELLANT: | Ms Bakal |
| RESPONDENT: | Mr Kapicic |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 4291 | of | 2011 |
| APPEAL NUMBER: | SOA | 47 | of | 2016 |
| DATE DELIVERED: | 23 February 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, Kent & Watts JJ |
| HEARING DATE: | 23 February 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 May 2016 |
| LOWER COURT MNC: | [2016] FamCA 410 |
REPRESENTATION
| THE APPELLANT: | In Person |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms DuBarry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
The time within which the appellant had to file and serve her Summary of Argument be extended to 28 days from the date of these orders.
The time within which the respondent and the Independent Children’s Lawyer had to file their Summary of Argument be extended to 21 days from the date of service of the appellant’s Summary of Argument.
In the event the appellant does not comply with Order 1, the appeal be dismissed.
Within 28 days of the date of this order, the appellant shall file and serve any Amended Notice of Appeal and/or Application in an Appeal and supporting affidavit on which she seeks to rely at the hearing.
That the parties have liberty to apply for any further directions upon notice to the Appeal Registrar in the Southern Region Appeal Registry.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bakal & Kapicic 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 ADELAIDE |
Appeal Number: SOA 47 of 2016
File Number: ADC 4291 of 2011
| Ms Bakal |
Appellant
And
| Mr Kapicic |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
WATTS J
The appellant applies for leave to have time extended to file the summary of argument. The provision for the Court to give that indulgence is contained in rule 1.14 of the Family Law Rules 2004 (Cth).
In Gallo & Dawson (1990) 93 ALR 479 McHugh J pointed out that the object of that type of rule is to ensure that the rules which fix times for compliance for filing documents do not do an injustice.
In determining whether or not this indulgence is granted to the appellant, having read the appeal books and other documents, I firstly have regard to the history of the proceedings. The appellant has today provided some explanation as to the delay between November 2016, when she last had contact with the registrar, and now. In relation to the parenting proceedings, the husband has conceded that there is no consequence to him arising from the matter being delayed as at the current time the child is living with him and not seeing his mother. The wife has taken some significant steps in terms of getting this appeal ready and in my view it is in the interests of justice to grant leave under rule 1.14 to extend time.
The orders that I would propose would be to the following effect:
i)Within 28 days the appellant file and serve a summary of argument, any application she wishes to bring in relation to fresh evidence, and to file any amended notice of appeal.
ii)The husband have three weeks after that time to file a summary of argument and any other documents in reply.
iii)The independent children's lawyer also have three weeks after that time to file a summary of argument and file any other documents in reply.
iv)If the appellant does not file an appeal within 28 days, the appeal will be automatically be deemed to be abandoned.
v)There be liberty for either party or the independent children’s lawyer to apply to the Appeals Registrar for further directions.
KENT J
I agree with the orders proposed by Watts J and I agree with his reasons.
THACKRAY J
I also agree with Watts J and the orders that he proposes.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 23 February 2017.
Associate:
Date: 14 March 2017
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