Cadogan and Child Support Registrar
[2010] FamCAFC 89
•29 April 2010
FAMILY COURT OF AUSTRALIA
| CADOGAN & CHILD SUPPORT REGISTRAR | [2010] FamCAFC 89 |
| FAMILY LAW - APPEAL – Application for extension of time to appeal – Short delay – Notices refused filing in the Registry – No reasons available at the time of hearing – Respondents do not object to the application – Leave granted |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Cadogan |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | BRC | 10301 | of | 2009 |
| APPEAL NUMBER: | NA | 46 | of | 2010 |
| DATE DELIVERED: | 29 April 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 29 April 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 29 January 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 406 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Australian Government Solicitor |
Orders
The time within which the father may file a Notice of Appeal against the orders of Federal Magistrate Slack made on 29 January 2010 be extended to on or before 4:00pm on 10 May 2010.
IT IS NOTED that publication of this judgment under the pseudonym Cadogan & Child Support Registrar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 46 of 2010
File Number: BRC 10301 of 2009
| Mr Cadogan |
Appellant
And
| Child Support Registrar |
Respondent
REASONS FOR JUDGMENT
By an application filed on 17 March 2010, Mr Cadogan seeks that a notice of appeal “sent on 24 Feb 2010 be confirmed as being delivered within time” together with a number of orders in relation to a child support assessment debt. With respect to the orders sought in relation to the child support assessment debt, it is not appropriate for me to consider that aspect of the application on this occasion. Those applications will be considered at the same time as the appeal.
On 29 January 2010 Federal Magistrate Slack made orders in relation to the enforcement of a child support assessment debt. I do not have a copy of the Federal Magistrate’s reasons. It seems there was a problem with the transcription service on the day of the hearing.
Mr Cadogan wishes to appeal against the enforcement orders. To be within time, the appeal should have been filed on 26 February 2010. It is Mr Cadogan’s position that he was within time.
On 23 February 2010 Mr Cadogan attempted to file a notice of appeal but this was apparently refused. The notice may have been in the wrong form.
The next day, on 24 February 2010 Mr Cadogan sent the correct forms to the Registry by post. For some reason the appeal documents were sent to the Federal Magistrate’s chambers and later returned unfiled on or about 4 March 2010.
In any event, by the time the form was received in the Registry, it was out of time. Therefore, Mr Cadogan needs leave to file his appeal out of time.
It is clear the delay in filing is very short. Mr Cadogan has provided an explanation for the delay which, partly, is not of his making. He has filed a further affidavit this morning explaining these events. There is no reason why I ought not give Mr Cadogan leave to file his appeal.
It is necessary for me to consider two matters; first the prejudice to the respondents and secondly the merits of the appeal. In relation to the former, I have been provided with a letter from the Australian Government Solicitor dated 28 April 2010, where it is clear that they do not oppose and, in fact, consent to Mr Cadogan being granted leave.
As to the merits of the appeal, it is somewhat difficult to assess that without the benefit of seeing the reasons for judgment of the Federal Magistrate. However, I have seen Mr Cadogan’s draft notice of appeal and it is clear that he raises some arguable grounds.
For these reasons, I have determined to grant him leave to file the notice of appeal out of time.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 11 May 2010
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