Dalwilliams and Dalwilliams
[2008] FamCAFC 184
•6 August 2008
FAMILY COURT OF AUSTRALIA
| DALWILLIAMS & DALWILLIAMS | [2008] FamCAFC 184 |
| FAMILY LAW - APPEAL – from decision of a Federal Magistrate – application for leave to appeal out of time – dismissed for want of appearance. |
| APPLICANT: | MR DALWILLIAMS |
| RESPONDENT: | MRS DALWILLIAMS |
| FILE NUMBER: | MLC | 4395 | of | 2007 |
| APPEAL NUMBER: | SA | 35 | of | 2008 |
| DATE DELIVERED: | 6 August 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Mushin J |
| HEARING DATE: | 6 August 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 12 December 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 1057 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
Orders
The husband's application in a case filed on 22 April 2008, seeking leave to file a notice of appeal against the orders made by Connolly FM on 12 December 2007, notwithstanding the time for filing such notice of appeal has expired, be dismissed for want of appearance.
IT IS NOTED that publication of this judgment under the pseudonym Dalwilliams is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4395 of 2007
APPEAL NUMBER: SA 35 of 2008
| MR DALWILLIAMS |
Applicant
And
| MRS DALWILLIAMS |
Respondent
REASONS FOR JUDGMENT
On 12 December 2007, Connolly FM made certain orders with regard to the three children of the parties. The period of 28 days within which to appeal as of right expired on 9 January 2008. On 22 April 2008, the husband filed an application on form 2, seeking an extension of time to appeal against his Honour's orders. Accordingly, that application was made approximately three and a half months out of time.
The husband's explanation for not filing his notice of appeal is that he did not receive the orders of 12 December 2007 until 17 January 2008, as they were sent by regular post and he did not receive any prior notice of the orders by email.
The husband lives in the United States of America and an arrangement was made with the appeals registrar that the husband would telephone in to the court to appear on the hearing of his application for leave by electronic means. That was to be at 9.55 am Australian Eastern Standard Time today. I am satisfied that the husband was given the correct phone number. The phone has been monitored at all times and he has not phoned in. Accordingly, his application will be dismissed for want of appearance.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin
Associate:
Date: 28 November 2008
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