Harrison and Harrison
[2011] FamCAFC 35
•9 February 2011
FAMILY COURT OF AUSTRALIA
| HARRISON & HARRISON | [2011] FamCAFC 35 |
| FAMILY LAW – APPEAL - APPLICATION IN AN APPEAL – application for an extension of time to file a Notice of Appeal. |
| APPLICANT: | Mr Harrison |
| RESPONDENT: | Ms Harrison |
| FILE NUMBER: | MLC | 6568 | of | 2008 |
| APPEAL NUMBER: | SA | 96 | of | 2010 |
| DATE DELIVERED: | 9 February 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 9 February 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 11 June 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 663 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McFarlane |
| SOLICITOR FOR THE APPLICANT: | Perisic & Thomas Lawyers |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
No orders made.
IT IS NOTED that publication of this judgment under the pseudonym Harrison & Harrison is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDCITION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 96 of 2010
File Number: MLC 6568 of 2008
| Mr Harrison |
Applicant
And
| Ms Harrison |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
I have before me today an Application in an Appeal filed by the husband on 21 December 2010 seeking an extension of time to file an appeal against orders made by Federal Magistrate O’Sullivan on 11 June 2010. Mr Harrison, the applicant, is represented by counsel today, Mr McFarlane. Mrs Harrison, who is the respondent, is representing herself.
In support of the application there is an affidavit filed by the husband on 21 December 2010 and there is also a draft Notice of Appeal filed on that same day. Mrs Harrison has quite recently filed an affidavit purportedly in opposition to the application. She has confirmed today she opposes the application.
The state of this case is that I have heard submissions from both Mr McFarlane and Mrs Harrison and I had proposed to deliver an ex tempore judgment, but because of time constraints I am not able to do that, and thus I will need to reserve my decision. However, what I have determined to do is to indicate to the parties what my decision is and then follow it up with my reasons as soon as I can, and, to assist the parties in understanding why I have reached this decision, I will just make some brief remarks in a very summary form, but, as I say, that will be amplified by full reasons hopefully in the very near future.
Thus having read the relevant documents, and that includes the reasons for judgment delivered by the Federal Magistrate on 11 June 2010, I propose to grant the application and make an order that the husband have an extension of time to file his Notice of Appeal.
Subject to when I am able to deliver my full reasons, I will be making the order extending the time to next Friday and what then will happen is the Rules will apply such that the husband will have 28 days after the filing of the Notice of Appeal to file the draft appeal index and then the matter is listed for a directions hearing. As to who that directions hearing is before will depend upon whether this matter is going to go to a single judge of the Appeal Division or a three-member bench. That is something that I will have to discuss with the Chief Justice.
There have been two factors highlighted in the application as being relevant to whether there should be an extension of time and they are two factors which are often referred to in the relevant authorities. They are, firstly, the question of the delay and any explanation for that, and, secondly, the question of whether there is a substantial issue to be raised on appeal.
In relation to the delay, the husband’s position is quite straightforward. He says that he did not have the money to be able to instruct a solicitor and counsel to prepare the necessary documents, but he subsequently managed to obtain the funds for that purpose and immediately when he was in that position he filed this application.
I record that the wife has commenced to interrupt and make comments. However, I will continue my reasons even if it means talking over Mrs Harrison.
I have referred to the issue of delay and, at first blush, a delay of some six months would seem to be in anyone’s language a lengthy delay. However, what has been pointed out in the affidavit, and there has been no challenge to this, is there will not be any prejudice to the wife if the application was granted because the wife will not be in a position for some three years or so to access the superannuation which is the subject of the orders made by the Federal Magistrate. Obviously, though, there are other prejudices to the wife if the application is granted which I will deal with in my full reasons.
The second issue that has been highlighted is the question of the merits of the appeal. I must say that in my view, and I have raised a number of issues myself with Mr McFarlane, and he has amplified the grounds of appeal as set out in the draft Notice of Appeal, it is quite apparent to me that an appeal has a reasonable chance of success. I cannot be definitive about that though because I do not have the full range of material before me which was before the Federal Magistrate and, in any event, I do not have the transcript. All I can proceed on is the reasons for judgment delivered by the Federal Magistrate, the affidavit of the applicant, the affidavit of the respondent, and the submissions of Mr McFarlane and of Mrs Harrison, but, to repeat, in my view, I consider that there are reasonable prospects of success and, thus, that is a significant factor given that a consideration of the relevant factors is to be seen in the context of the overarching principle of where the justice of the case lies.
I am not unmindful of the history of this matter and the impact that that has had on Mrs Harrison. However, as I attempted to explain to her during the hearing …
I note that Mrs Harrison has left the court room and it seems that that is probably the best course given the comments that she has continued to make ignoring my requests to not interrupt. In any event, I had almost finished the summary and I conclude by saying that I am not unmindful of what has happened in the past, and I can entirely understand the reaction of Mrs Harrison. She feels she has been harshly dealt with, and I am referring, of course, to admitted breaches of orders by the husband which are well documented, but they are not determinative of the application today.
In all the circumstances I consider that the interests of justice lie in favour of granting this application.
They are my brief summary reasons for the order that I propose. I have not made the order yet. I have simply indicated the order I am going to make. Mrs Harrison has left. I will not make the order in her absence. I will make it at the time I deliver my full reasons for judgment.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 9 February 2011.
Legal Associate:
Date: 28 February 2011
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