DEENE & SIMPLOT
[2014] FamCAFC 1
•16 January 2014
ILY COURT OF AUSTRALIA
| DEENE & SIMPLOT | [2014] FamCAFC 1 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother seeks to extend the time to file a Notice of Appeal against the orders of Cronin J made 6 August 2013 – where the father opposes the application – where the mother has not complied with the orders for the filing of a draft Notice of Appeal – where there has been no appearance at the hearing by or on behalf of the mother – application dismissed. |
| Family Law Act 1975 (Cth) | ||
| APPLICANT: | Ms Deene | |
| RESPONDENT: | Mr Simplot |
| FILE NUMBER: | MLC | 11902 | of | 2007 |
| APPEAL NUMBER: | SOA | 53 | of | 2013 |
| DATE DELIVERED:: | 16 January 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 16 January 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 August 2013 |
| LOWER COURT MNC: | [2013] FamCA 574 |
REPRESENTATION
| THE APPLICANT: | No appearance |
| THE RESPONDENT: | In person |
| SOLICITORS FOR THE RESPONDENT: | Thexton Lawyers |
Orders
The application in an appeal filed on 4 September 2013 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Deene & Simplot has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 53 of 2013
File Number: MLC 11902 of 2007
| Ms Deene |
Applicant
And
| Mr Simplot |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an application in an appeal filed by the mother on 4 September 2013 seeking an extension of time to appeal against orders made by Justice Cronin on 6 August 2013. Those orders were final parenting orders and provided for the child of the relationship to live with the father, who was to have sole parental responsibility, and there was then to be telephone communication one evening each week between the child and the mother.
The application was brought just after the time when the 28 day period expired, and what the mother was seeking was a further 28 days to file a Notice of Appeal.
The principal matters raised by the mother in her affidavit in support of the application were that she suffered from a post traumatic stress disorder which she said hampered her ability to collate the necessary information and prepare the documents, and she annexed a Report of a treating psychologist of
5 October 2012. She also explained that she had previously been represented by a solicitor, but he had recently been diagnosed with a major depressive disorder, and he had not renewed his practising certificate and he was unable to continue to represent her. In those circumstances the mother indicated that she had an appointment with Victorian Legal Aid on 5 September 2013 to review her eligibility for legal assistance and hopefully obtain new legal representation.
When the mother filed her application she was advised by the Appeals Registrar that she should also file a draft Notice of Appeal, given that the merits of any proposed appeal is a relevant circumstance in considering whether an extension of time will be granted. The mother did not do that and so I called the matter on for directions on 11 October 2013 when I raised this issue with the mother, and indicated that until and unless she filed a draft Notice of Appeal, or in some other way set out the complaints that she wished to make against the orders made by Justice Cronin, it was almost certain that she would not be successful in her application. I did explain to the mother, and to the father who attended on that day, that in terms of the explanation for not filing a Notice of Appeal within the prescribed time, it appeared at face value to be a reasonable one. It was therefore the issue of the merits of the appeal and ultimately the justice of the case as between the parties which would determine whether the application was successful.
The mother appeared to appreciate and understand this point and as a result sought an adjournment of the application for a period of 21 days to file a draft Notice of Appeal. I granted that application but I explained to the mother that that would be her one and only opportunity to attend to that, and that I would be listing her application for hearing at the first available opportunity, regardless of whether she complied with the order for the filing of a draft Notice of Appeal. Thus, I made orders that the mother file and serve a draft Notice of Appeal within 21 days, and I adjourned the application for further consideration to today.
There has been nothing filed since 11 October 2013, and specifically there was no draft Notice of Appeal filed. All that has happened in terms of the appeal file is there has been a Notice of Address for Service filed on 15 October 2013 by solicitors acting for the father.
The hearing has been called on today and the mother has not appeared. The father has appeared but he is not able to throw any light on why the mother has not appeared. He tells me that the orders of Justice Cronin in relation to the telephone contact have been complied with and there has been weekly telephone communication between the mother and the child. Indeed this week’s communication occurred last night. The father also tells me that that telephone communication is not an occasion when he speaks to the mother, it is solely and wholly communication between child and mother, and thus, for example, he was not advised by the mother last night that she would not be attending today, and he obviously was not in a position to enquire as to what she planned.
In any event the mother is not here.
I am satisfied that the mother was aware that today was the hearing date. She was present on 11 October 2013 when the hearing was adjourned to today.
In those circumstances the father asks that I dismiss the application and I propose to do so. It is unfortunate, because as I said, certainly from the affidavit that the mother filed in support of the application initially, there was a reasonable explanation as to why she was unable to file a Notice of Appeal within the prescribed time. That though is insufficient to allow me to make an order extending the time, and particularly when the mother has not attended today to further advance her case, which she of course she still could have done even in the absence of a draft Notice of Appeal, but there is nothing more I can do about that
I certify that the preceding ten (10) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on
16 January 2014.
Associate:
Date: 17 January 2014
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