COBBETT & ROLLAND

[2013] FamCA 186

FAMILY COURT OF AUSTRALIA

COBBETT & ROLLAND [2013] FamCA 186

FAMILY LAW – APPLICATION IN A CASE – where the father seeks to extend the time in which to file a Notice of Appeal against orders made by Federal Magistrate Cole on 26 February 2013 – where the mother opposes the application – where the ex tempore reasons for judgment of the Federal Magistrate delivered on 26 February 2013 were not received by the parties until 19 March 2013 – orders made as sought by the applicant.

Family Law Act 1975 (Cth)

GallovDawson (1990) 93 ALR 479

APPLICANT: Mr Cobbett

RESPONDENT: Ms Rolland

FILE NUMBER: ADC 1810 of 2010

DATE DELIVERED: 26 March 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 26 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Burrell

SOLICITOR FOR THE APPLICANT: David Burrell & Co

FOR THE RESPONDENT: In person

Orders

1. The time for the father to file and serve a Notice of Appeal against the orders made by Federal Magistrate Cole on 26 February 2013 be extended to the close of business on Tuesday 16 April 2013.

2. The Application in a Case filed by the father on 22 March 2013 be hereby dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cobbett & Rolland has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

File Number: ADC 1810 of 2010

Mr Cobbett

Applicant

And

Ms Rolland

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an Application in a Case filed on 22 March 2013 seeking an order granting an extension of time to file an appeal against orders made by Federal Magistrate Cole on 26 February 2013.

2. The application is supported by an affidavit also filed on 22 March 2013.

3. The application is opposed by the respondent.

4. The brief background to this application is that on 19 February 2013 Federal Magistrate Cole heard the father’s application for interim orders, his Honour delivered ex tempore reasons for judgment on 26 February 2013 and ordered that the father’s application and the response of the mother be dismissed.

5. It took some time for his Honour to settle and publish his reasons for judgment, and annexed to the affidavit filed in support of the application, are copies of the email correspondence passing between the father’s solicitors and the court wherein that issue was addressed, and requests were made for those reasons to be published in order that the question of an appeal from his Honour’s orders could be properly considered.  His Honour’s reasons for judgment were ultimately published and forwarded to the parties on 19 March 2013.

6. I note that the father, following the orders made by the Federal Magistrate, raised the question of an appeal with his solicitors, and his solicitors took the view that, until the settled reasons for judgment were received they were not in a position to provide the advice sought by the father.

7. Under the relevant Rules of Court a Notice of Appeal against orders made by a Federal Magistrate needs to be filed within 28 days of those orders being made.  Here that period expires on 26 March 2013.  Thus, given the settled reasons were only received on 19 March 2013, that left limited time to provide the advice sought, and that circumstance prompted the application that is now before me.

8. The father here had three options.  One was to file a Notice of Appeal within the time period, albeit without the benefit of the published reasons for judgment, and then consider his position, with the outcome of either, pursuing the appeal as it was filed, amending it, or discontinuing it.  That course of action, as Mr Burrell has put to me, would be a costly exercise involving the allocation of time and resources, which as Mr Burrell rightly says may ultimately be unnecessary.

9. The second option was to await the receipt of the reasons for judgment, provide advice to the father, and if the advice is that he should appeal, and if by that time the 28 day period had expired, file an application seeking an extension of time.  Again, that would involve costs and time and resources, and would be a risky approach given that if the extension of time was not granted that would be the end of any appeal.

10. The third option, which is the one that has been taken, is to file an application seeking an extension of time before the time period expires.  That option has some sense about it compared with the other two options, given that one would not necessarily have expected any opposition to such an application, and the costs and time and resources allocated to such an exercise could very well be contained, particularly given that the father’s position is that he has not yet decided to appeal.

11. The principles that apply in relation to applications for extensions of time are well settled, and I need do no more than cite the High Court decision of GallovDawson (1990) 93 ALR 479, per McHugh J at 480. The overriding principle is whether granting an extension of time will enable justice to be done. Here, the mother says that the father has had ample time to file a Notice of Appeal, but the father says otherwise, and I agree with him. It is only as a result of the delay in the Federal Magistrate settling and publishing his reasons for judgment that, without an extension, the father does not have the time allowed under the Rules of Court to properly consider whether to appeal. Moreover, the father has acted appropriately in seeking an extension, and the interests of justice demand that his application be granted.

I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 26 March 2013.

Associate:     

Date:              27 March 2013