BROWN & PARKER (APPLICATION TO EXTEND TIME) - [2010] FamCAFC 266

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

2009

APPEAL NUMBER:

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…

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 BROWN & PARKER (APPLICATION TO EXTEND TIME)

Details

AGLC: BROWN & PARKER (APPLICATION TO EXTEND TIME) [2010] FamCAFC 266
Case: [2010] FamCAFC 266
Decision Date: 15 September 2010

CaseChat Overview and Summary

The case involves an application by the mother, identified as the applicant and appellant, to extend the time to file a Notice of Appeal against the orders made by Federal Magistrate Neville on 3 May 2010. The Family Court of Australia was the venue for this application. The core dispute centres on whether the mother should be granted an extension to appeal certain decisions made in a family law matter, specifically those pertaining to the custody and care of her child.

The primary legal issue before the court was whether the mother should be granted an extension of time to file her Notice of Appeal. This involved considering the grounds provided for the extension, the timeliness of the application, and the potential impact on the proceedings and the child involved. The court had to weigh the mother's reasons for the delay against the principle of finality and the best interests of the child.

In determining the application, the court examined the mother's reasons for the delay and found them to be sufficient to warrant an extension. The court acknowledged the complexity of the case and the need for thorough preparation in such sensitive matters. As a result, the court granted the mother until 4:00pm on Friday, 24 September 2010, to file her Notice of Appeal. The appeal was subsequently listed for hearing on 26 October 2010. The court also allowed the mother's solicitor to appear by telephone and excused the attendance of the Independent Children's Lawyer at the appeal hearing.

Orders

Orders of the court

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.

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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