BROWN & PARKER (APPLICATION TO EXTEND TIME)
[2010] FamCAFC 266
•15 September 2010
FAMILY COURT OF AUSTRALIA
| BROWN & PARKER (APPLICATION TO EXTEND TIME) | [2010] FamCAFC 266 |
| FAMILY LAW - APPLICATION – PRACTICE AND PROCEDURE – Application for an extension of time to file notice of appeal against parenting orders made by a Federal Magistrate – where the notice of appeal was sought to be filed one day outside the prescribed 28 day time period – Application granted – time to file appeal extended. |
| Gallo v Dawson (1990) 93 ALR 479 Mackey v Mackey [2007] HCATrans 271 (28 May 2007) |
| APPELLANT: | Ms Brown |
| RESPONDENT: | Mr Parker |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Ridge |
| FILE NUMBER: | CAC | 443 | of | 2009 |
| APPEAL NUMBER: | EA | 72 | of | 2010 |
| DATE DELIVERED: | 15 September 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn J |
| HEARING DATE: | 15 September 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT ORDERS DATE: | 3 May 2010 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Mr Byrnes - Byrnes & Cox Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Ms Compton - Phelps Reid Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ridge – Barker & Barker Solicitors |
Orders
The applicant/appellant mother have until no later than 4:00pm on Friday, 24 September 2010, to file a Notice of Appeal against the orders of Federal Magistrate Neville made on 3 May 2010.
Subject to any other order of the Court, the appeal is listed for hearing before the Honourable Justice Finn on Tuesday, 26 October 2010 at 10:00am, at the Canberra Registry of the Family Court of Australia.
At the hearing of the appeal the applicant/appellant mother’s solicitor is permitted to appear by telephone, and the attendance of the Independent’s Children’s Lawyer is excused.
IT IS NOTED that it is proposed at this stage that the respondent father will be represented by his solicitor, Ms Reid.
The following documents shall be before the Court at the hearing of the appeal:
(a)The Notice of Appeal which is to be filed in accordance with Order 1 of these orders;
(b)A copy of Federal Magistrate Neville’s orders made on 3 May 2010;
(c)A copy of the transcript of the hearings or mentions before Federal Magistrate Neville on 19 April 2010 and 3 May 2010; and
(d)A copy of Federal Magistrate Neville’s reasons for judgment delivered on 23 March 2010.
The Eastern Appeals Registrar is to arrange for all parties, including the Independent Children’s Lawyer, to be provided with a copy of the transcripts of the hearing or mentions before Federal Magistrate Neville on 19 April 2010 and 3 May 2010 by email, at an email address provided to the Court.
By no later than 4:00pm on Friday, 1 October 2010, the solicitor for the applicant/appellant mother is to file at the Eastern Region Appeals Registry in Sydney and serve upon the solicitor for the respondent father and the Independent Children’s Lawyer a written summary of argument in relation to the appeal.
By no later than 4:00pm on Friday, 22 October 2010, the solicitor for the respondent father is to file at the Eastern Region Appeals Registry and serve upon the solicitor for the applicant/appellant mother, the Independent Children’s Lawyer a written summary of argument in relation to the appeal.
That the costs of and incidental to these proceedings be reserved to the Appeal Court as costs in the appeal.
That to the extent that these orders do not comply with any provision in the Family Law Rules 2004 (Cth), then such compliance be dispensed with.
That each party have liberty to apply for any further directions to the Honourable Justice Finn (or if not reasonably available to another member of the Appeal Division) upon twenty four (24) hours notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
IT IS NOTED that publication of this judgment under the pseudonym Brown & Parker (Application to extend time) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 72 of 2010
File Number: CAC 443 of 2009
| Ms Brown |
Appellant
And
| Mr Parker |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before me today is one filed on behalf of the mother seeking an extension of time, to file a notice of appeal against orders made by Neville FM on 3 May 2010. Those orders essentially related to the school that two of the three children of the mother and the father would attend in Canberra.
In support of the application an affidavit has been filed by the mother’s solicitor, Mr Byrnes, and it explains well the reasons why the notice of appeal, when it was attempted to be filed, was filed one day outside the prescribed period.
In addition, Mr Byrnes has provided very useful and succinct, but comprehensive, submissions in support of the application. Again, in those submissions, he has explained the one day delay in attempting to file the notice of appeal. Put simply, it was a miscalculation of the date from when the 28 day period ran. In addition, in his useful written submissions, Mr Byrnes has canvassed the leading authorities on applications to the Court to extend time. The leading authority, of course, is McHugh J’s decision in Gallo v Dawson (1990) 93 ALR 479, which is referred to by Mr Byrnes in his submissions.
The essential principle which emerges out of McHugh J’s judgment in that case, is the need to ensure that fixed times do not become instruments of injustice, and his Honour explained in that decision, how for this purpose it is necessary to look at the reasons for the delay, and whether there would be any substance in the appeal if it was permitted to proceed.
Arising out of that decision and the other authorities referred to, or relied on, by Mr Byrnes, one needs to consider the length of the delay – I have referred to that already, being one day, and to the reasons for the delay, being as I have said, essentially a miscalculation of the time. Then there are the issues of whether there is any substance in the proposed appeal, and of prejudice to one or both parties.
I have the benefit of a draft notice of appeal, which was attached to the affidavit. It reveals that the challenges to the orders on 3 May 2010 are essentially based on procedural fairness grounds, being in summary, that there was no formal application before the Federal Magistrate, and no supporting affidavit material, and in addition, applications for adjournment to enable the mother to prepare a case, were not granted.
While I do not say whether those grounds would ultimately succeed as drafted they are obviously not in the category of frivolous or vexatious grounds. They are competent grounds of appeal. In saying that, I stress, that I do not say they would ultimately succeed, but they are grounds that could be argued. Therefore, on its face, the appeal may have some prospect of success, or at least was not being based on frivolous or vexatious grounds.
It is difficult to see that there could be prejudice to the father, in the sense of prejudice which would not be compensated by appropriate costs orders, and in those circumstances, as I say the delay is so short it is hardly worth mentioning. But that having been said, the rules about time are made for a purpose, and it is in everybody’s interests - Court, and litigants, and practitioners - that people do adhere to the rules, otherwise the Court’s time is taken up and parties’ resources are spent on having to have a hearing like this. That is not a reason why I would refuse this application; I just take the opportunity to ask the profession to try to ensure that documents are filed on time.
I also take into account in granting this application a matter that was raised by Mr Byrnes, certainly in his submissions, if not in his supporting affidavit, and that is, that the orders were not received for a couple of weeks after they were made, and of course that circumstance always has the practical effect of cutting down the 28 day period to a lesser period. But be that as it may, extensions of time cannot be regarded as automatic, even when they are just a few days, because otherwise there would be no end to them. However, in this case I am certainly prepared to extend time.
Importantly, I note the attitude of both the solicitor for the respondent father and for the Independent Children’s Lawyer, which has been neither to consent to, nor oppose the application to extend time, and I commend both solicitors involved, and to the extent that the father is involved, for taking what I would call a “sensible attitude” there.
It is always useful when faced with an extension of time application which involves a very short period of time, to bear in mind the content of a transcript of a special leave application in a matter called Mackey v Mackey [2007] HCATrans 271 (28 May 2007) where Heydon J reminded all legal practitioners that a mistake which one of them makes, might well in the future be made by another.
However, I do commend the solicitors today who appear on the other side for not taking an obstructionist attitude. I appreciate that it is difficult to consent outright to an extension of time. But I am grateful to them both for coming along, because we can probably use this day now more usefully to explore what is to happen with the appeal (which I am now permitting to proceed).
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn on 15 September 2010
Associate:
Date: 8 April 2011
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