Camaro and Camaro
[2011] FamCAFC 158
•25 July 2011
FAMILY COURT OF AUSTRALIA
| CAMARO & CAMARO | [2011] FamCAFC 158 |
| FAMILY LAW - APPEAL – Application to extend time – Application allowed. |
| Family Law Act 1975 (Cth) s 117 |
| APPELLANT: | MR CAMARO |
| RESPONDENT: | MS CAMARO |
| FILE NUMBER: | SYC | 29 | of | 2011 |
| APPEAL NUMBER: | EA | 76 | of | 2011 |
| DATE DELIVERED: | 25 July 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 25 July 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 May 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 466 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr O’Brien |
| SOLICITOR FOR THE APPELLANT: | Kazi Portolesi Lawyers |
| ADVOCATE FOR THE RESPONDENT: | Ms Morton |
| SOLICITOR FOR THE RESPONDENT: | Morton Family Lawyers |
Orders
That the appellant husband pay the respondent wife’s costs of and incidental to this application, assessed in the sum of $1000.
Provided that within 28 days of this date, the appellant husband pay to the respondent wife the costs referred to in Order 1 hereof, time to appeal against interlocutory orders made by FM Sexton on 16 May 2011 be extended to 4 pm on 31 August 2011.
That in the event of the appellant father complying with Orders 1 and 2 of these orders, his Notice for Appeal be listed for hearing on 21 November 2011, in the Full Court at Sydney before a single judge.
Provided that the appellant husband complies with Order 1 and 2 of these orders, on or before 4 pm 24 October 2011 the appellant husband file and serve an Appeal Book which shall include:
· Any Amended Notice of Appeal;
· Orders of the Federal Magistrate;
· Reasons for judgment of the Federal Magistrate;
· Transcript of the proceedings relevant to the appeal;
· Application and response and any relevant affidavit material;
· Exhibits tendered before the Federal Magistrate; and
· Summary of Argument.
That the respondent mother file and serve a Summary of Argument by no later than 4pm on 14 November 2011.
That liberty be granted to each party to restore on 72 hours notice after 31 August 2011.
IT IS NOTED that publication of this judgment under the pseudonym Camaro & Camaro 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 ADELAIDE |
Appeal Number: EA 76 of 2011
File Number: SYC 29 of 2011
| MR CAMARO |
Appellant
And
| MS CAMARO |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application to extend time to appeal against interim orders made by Sexton FM on 16 May 2011. The application was filed on 20 June 2011.
The explanation for not lodging a Notice of Appeal within time is both credible and persuasive. The issue, however, turns more – as generally is the case with applications to extend time to institute appeals against interlocutory orders of the Federal Magistrates Court – on two issues. One is the prospect of success on appeal. It can be said that the proposed grounds of appeal are not demonstrably hopeless. That is the highest that one could put it, but that is probably sufficient for present purposes.
The real issue – and it is probably unique to appeals against interlocutory orders of the Federal Magistrates Court – is that in this case, as commonly occurs, the very question which is sought to be agitated on appeal is likely to be revisited at about the time any appeal would be heard, if not sooner. The learned Federal Magistrate’s judgment of 16 May 2011 clearly [see paragraph 40] envisages that the parenting issues which gave rise to the orders sought to be challenged will be revisited in November this year. This Court would not be able, or willing, to hear the appeal until almost that time. As is not in doubt, if an appeal against the current interim orders succeeded, there would be a further interim hearing, before a Federal Magistrate other than FM Sexton, which would be likely to be well after 9 November 2011. Moreover, the parties have a final hearing fixed for three days in March of next year. Those dates, too, would become problematic if an appeal succeeded.
The applicant husband, who has been represented by competent counsel, is no doubt aware of these matters. They are relevant to the exercise of discretion to extend time and, if time be extended, the terms upon which it should be. The Court is not disposed to take the step of denying the husband the opportunity to challenge the Federal Magistrate’s interlocutory orders, notwithstanding that in the fullness of time the appeal may prove to be, if not an abuse of process, of no utility, and thus virtually an abuse of the Court’s processes.
However, allowing the husband to “chance his arm” ought not, in the circumstances, be to the detriment of the respondent wife. The Court raised with counsel for the husband the question of the costs of this application being required to be paid as a condition precedent to an extension of time. It was submitted that the Court either could not, or ought not so order, having regard to the terms of s 117 of the Family Law Act 1975 (Cth) (‘the Act’), which relate to costs.
Two things are relevant to this debate. The first is that, this being an application to extend time to appeal, s 117 of the Act is not strictly applicable. The Court can extend time to appeal on terms and conditions including the payment of costs notwithstanding that an entitlement to costs pursuant to s 117(2) might not be established.
The second is that this application, if it has merit, is highly likely to result in a complete exercise in futility. It is not the fault of the respondent wife that the applicant husband requires a grant of leave, and the matters raised by her learned counsel, which the Court substantially accepts as to the likely practical utility of an appeal, are all matters which are relevant to the terms upon which time should be extended, and also relevant to the question of the costs of this application and its reasonable resistance by counsel for the wife. The Court has been informed, and there has been no demur in that regard, that the financial orders of the Federal Magistrate of 16 May 2011, which are not sought to be challenged, have not been complied with. That, too, is relevant to the terms upon which time should be extended.
On balance, the Court is disposed to allow the applicant husband the opportunity to have his day in court. It will, however, be contingent upon his paying within 28 days the wife’s costs of this application, assessed by the Court in the sum of $1 000.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 25 July 2011.
Associate:
Date: 05.08.11
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