Hollier and Harne

[2009] FamCAFC 82

FAMILY COURT OF AUSTRALIA

HOLLIER & HARNE [2009] FamCAFC 82

APPEAL – PRACTICE AND PROCEDURE – Adjournment of application for extension of time within which to appeal – Parties had not yet received a copy of the reasons for judgment

APPLICANT: Ms HOLLIER

RESPONDENT: Mr HARNE

INDEPENDENT CHILDREN’S LAWYER: MS PERREN

APPEAL NUMBER: NA 33 of 2009

FILE NUMBER: TVC 1005 of 2008

DATE DELIVERED: 8 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 8 May 2009

REPRESENTATION

APPLICANT: Applicant appears in person

RESPONDENT: Respondent appears in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Perren

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Madden Solicitors

Orders

1. The application is adjourned to 10.15am on 26 May 2009.

2. The costs of the Independent Children's Lawyer be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Hollier and Harne 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: NA33 of 2009
FILE NUMBER: TVC1005 of 2008

Ms HOLLIER

Applicant

And

Mr HARNE

Respondent

REASONS FOR JUDGMENT

1. I adjourn the application for an extension of time to- - -

   RECORDED  :  NOT TRANSCRIBED

   Tuesday 26 May.

   RECORDED  :  NOT TRANSCRIBED

   It will be 10.15, Tuesday 26 May.  I will give my reasons for that now.

2. Ms Hollier has filed an application to extend time within which she may appeal an interim parenting decision of Coker FM made 10 October 2008.  That, of course is now some seven or eight months ago and one would think she would need to address the question of delay with some degree of detail.

3. Her affidavit in support of her application merely says that she has been unable to obtain the reasons for judgment given by the Federal Magistrate.  Other matters, which however do not explain the delay, referred to in her affidavit are simply that the final hearing might take some time because there are ongoing criminal matters whereby the father will defend himself over allegations of sexual abuse of an underage niece.  Further, given the serious nature of the issues the mother has serious concerns about the present form of the order.  But it can be seen that the only explanation so far for delay is that the reasons were not available.

4. On the Court file is a copy of reasons dated this Tuesday so, clearly, they have just become available, none of the parties have seen them.  That of itself is a reason for adjourning the matter.  One of the essential aspects to be considered in an application of this nature are the prospects of the proposed appeal.  The appeal grounds were obviously drawn without benefit of the reasons.  Whilst a party may be present when reasons are orally given, there is a large difference in the degree of analysis that a party can bring to bear on reasons given orally and recalled as best one can, even with the assistance of notes and what one might be able to achieve by perusal of the written reasons.

5. I take into account also that, from my discussions with Ms Hollier, there may be other matters, which she ought be given the opportunity to address, to explain the delay and including any aspects of requests for the reasons and notice to the other parties of the intention to appeal.

6. Ms Perren takes a fairly neutral position, although pointing to the length of the delay.  Mr Harne, I think, misunderstands the basis upon which an appeal might be brought and the considerations relating to the issue before the Court today.  Mr Harne has pointed out on several occasions that there has been no change to circumstances since the orders of the Federal Magistrate were made.  That is not the question to be pursued on an appeal in normal circumstances.  An appeal proceeds on the premise that, on the material that was before the Federal Magistrate when the orders were made, the Federal Magistrate has made mistakes which the appeal Court ought correct.  So it is not necessary for a successful appeal for there to have been any change of circumstance.

7. The right to appeal is a significant right.  In this case currently the mother has lost it because she has allowed the time within which to appeal as of right to pass, but she has done so in circumstances where the Court system has been substantially responsible in that it is established that the written reasons for the orders have only just become available in the last few days.  In my view the just approach is to adjourn the matter to allow Ms Hollier to at least read the reasons and put on further material if she wishes.

   RECORDED  :  NOT TRANSCRIBED

8. There will be two orders today.

   ORDERS DELIVERED

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate: 

Date:  20 May 2009