Harke and Edward
[2010] FamCAFC 75
•24 March 2010
FAMILY COURT OF AUSTRALIA
| HARKE & EDWARD | [2010] FamCAFC 75 |
| FAMILY LAW - APPEAL – Application for extension of time in which to file notice of appeal – Final parenting orders made in the mother’s absence – Delay in filing notice of appeal slight – Intervening Christmas period and closure of the courts – Orders made by the Federal Magistrate substantially change the child’s circumstances – Prejudice to the father – Application allowed. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Harke |
| RESPONDENT: | Mr Edward |
| INDEPENDENT CHILDREN’S LAWYER: | Lyrene Wiid Solicitors |
| FILE NUMBER: | BRC | 982 | of | 2008 |
| APPEAL NUMBER: | NA | 9 | of | 2010 |
| DATE DELIVERED: | 24 March 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 24 March 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 9 December 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1372 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Mr Turnbull Journey Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Springwood Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Lyons |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Lyrene Wiid Solicitors |
Orders
The time within which the mother may file a Notice of Appeal against the orders of Federal Magistrate Howard made on 9 December 2009 be extended to 4:00pm on Friday 26 March 2010.
The Independent Children’s Lawyer and respondent’s costs of and incidental to the application for an extension of time within which to appeal be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Harke & Edward 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 9 of 2010
File Number: BRC 982 of 2008
| Ms Harke |
Appellant
And
| Mr Edward |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
An application was filed on 11 January 2010 where the mother asks that she be given leave to file an appeal out of time. The orders were made by Federal Magistrate Howard on 9 December 2009, so she is, depending on how the calculations are made, some five days late.
The orders made by the Federal Magistrate were very serious in nature in so far as the parties and the child, L, born July 2006, are concerned. Prior to this order the child had been living with her mother. As a result of the order the child is now living with the father. Comprehensive orders were made about the time the child should spend with the mother, including alternate weekends.
Discussion
Mr Turnbull, who appears for the mother today, tells me that despite the notation that there would be some possibility that the mother could apply to have these orders set aside, such attempts by her, or on her behalf, have been unsuccessful. So it is asked that the mother be given leave to appeal.
One of the primary difficulties in this matter is that the orders were made by the Federal Magistrate in the mother’s absence. As the Federal Magistrate observed in paragraph 2 of his judgment:
That is the second occasion this year that the mother has failed to attend a final hearing. In September 2009, the matter was set down for a final hearing, but the mother was unable to take part in the hearing. At that stage, the mother produced a medical certificate in respect of her own health.
The Federal Magistrate then continued, in relation to the occasion that his Honour made final orders:
Today the mother has sent, by facsimile transmission to the court, a medical certificate concerning her child, [C], who is aged five years. The medical certificate shows that the child was taken, it seems, to the Royal Children’s Hospital on 7 December 2009, suffering from what is called a “medical condition”.
There was a reference in that medical certificate, which I have now seen, that the child was incapacitated for school, but it does not appear that the child was admitted to hospital. If leave is given for the mother to file this appeal out of time, it may be necessary for some further explanation to be provided, by way of an application to adduce further evidence, and an affidavit.
Not surprisingly, the father, Mr Edward, who appears for himself, opposes the mother being granted leave in view of the background to the matter (the mother having failed to appear on two occasions), and, obviously, the substantial inconvenience to him should there now be an appeal.
The Independent Children’s Lawyer submitted that I should take into account the history of the matter, being the mother’s non-appearance, but ultimately submitted that leave in these circumstances should be granted.
The principles relating to the occasions in which a court may grant leave out of time are well known. Mr Turnbull has referred to those carefully. First, the need for an explanation for the delay, secondly, the merits or prospects of success of the appeal should it proceed, and finally, the prejudice to the parties.
In relation to the delay, which I have already emphasised is slight, the mother in her affidavit explains that the orders were made on 9 December 2009 and she contacted her solicitors on 10 December 2009 to obtain advice. The solicitors then contacted the Federal Magistrate’s associate to attempt to re-list the matter and filed a fresh application. Apparently, as Mr Turnbull has told me this morning, none of those attempts were successful. The Christmas period then began, which included closure of the courts and public holidays, and then the appeal was out of time.
There is no reason for me to conclude that this was deliberate delay on the mother’s part or that there was any degree of lack of attention by the solicitors.
In this case, the short delay is explained.
As to the merits of the appeal, of course, that is difficult to properly assess at this stage. I have the proposed notice of appeal and Mr Turnbull has outlined to me this morning what the argument will be. In essence, it is that in a matter serious as this, his Honour should not have made final orders in the absence of the mother. Some reference has been made to a family report prepared by Ms J. I think there are in fact two reports. Submissions have been made as to how it was that his Honour managed to make final orders in view of that report.
Counsel for the Independent Children’s Lawyer has explained to me that Ms J gave evidence which provided information to his Honour by way of her expert opinion, which was slightly different from what appears in the report and was consistent with the orders made by his Honour. When the transcript is available to the solicitors for the mother that may or may not become apparent. It will be a matter for them to provide advice to their client then as to the prospects of success of the appeal.
I have mentioned the prejudice to the father which is obvious. One must balance that against the fact that the orders made by the Federal Magistrate are extremely important in the life of this child and, no doubt, her parents. If there are any proper grounds to appeal, which on the face of it there may well be, it is necessary to allow that appeal to go ahead.
So for those reasons I will give leave to the mother to file her notice of appeal.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May
Associate:
Date: 9 April 2010
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