Harley-Dean and Dean

[2012] FamCAFC 67

FAMILY COURT OF AUSTRALIA

HARLEY-DEAN & DEAN [2012] FamCAFC 67       

FAMILY LAW – PRACTICE AND PROCEDURE – Application for an extension of time to file appeal – Where the applicant mother is one month out of time – Where the period of delay was short and included the Christmas/New Year holiday period and absence overseas – Where the delay is sufficiently explained and does not impede the granting of an extension of time – Where the proposed grounds of appeal raise issues of procedural fairness and errors in the exercise of the trial judge’s discretion – Where the parties were required to provide draft orders in accordance with the reasons for judgment prior to receiving the reasons in written format – Where the unchallenged recommendation of the family consultant was not adopted by the Federal Magistrate and no reasons were provided – Where there is sufficient merit in the mother’s proposed appeal to make an extension of time appropriate – Application allowed.

Family Law Act 1975 (Cth)

Clivery & Conway [2007] FamCA 1435
House v The King (1936) 55 CLR 499

APPELLANT: Mrs Harley-Dean

RESPONDENT: Mr Dean

FILE NUMBER: BRC 8831 of 2007

APPEAL NUMBER: NA 11 of 2012

DATE DELIVERED: 22 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 22 May 2012

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 21 November 2011

LOWER COURT MNC: [2011] FMCAfam 1294

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Waterman

SOLICITOR FOR THE APPELLANT: Davey Law

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. The time for the mother to file a Notice of Appeal out of time against the orders of Federal Magistrate Howard made on 9 December 2011 be extended to

   
   

   8 June 2012.

2. The matter be adjourned to the Regional Appeals Registrar for the making of directions for the hearing of the appeal by a single Judge of the Appeal Division of the Family Court of Australia.

3. That there be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harley-Dean & Dean 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 BRISBANE

Appeal Number: NA 11 of 2012
File Number: BRC 8831 of 2007

Mrs Harley-Dean

Appellant

And

Mr Dean

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern an application by the mother for an extension of time in which to file a notice of appeal against orders made by Federal Magistrate Howard on 9 December 2011. Reasons for those orders were delivered orally on 21 November 2011 and in written form on

   
   

   30 November 2011.

2. On 6 February 2011 the mother filed an application in an appeal seeking an extension of time. She is therefore approximately one month out of time in filing her appeal.

3. The orders made by the Federal Magistrate on 9 December 2011 discharged earlier final parenting orders…