Hollier and Harne (No. 2)

[2009] FamCAFC 98

FAMILY COURT OF AUSTRALIA

HOLLIER & HARNE (NO 2) [2009] FamCAFC 98

FAMILY LAW - APPEAL – Practice and Procedure – Application for extension within which to file Notice of Appeal – The case presents matters of seriousness and complexity – Respondent has not suffered substantial prejudice in light of the delay – Applicant ought be give opportunity to appeal

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: 26 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 26 May 2009

REPRESENTATION

APPLICANT: Appears in person

RESPONDENT: Appears in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Perren

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Madden Solicitors

Orders

1. That the time within which the mother may file an appeal against the orders of Coker FM made 10 October 2008 be extended to 4 pm, Tuesday 9 June 2009.

IT IS NOTED that publication of this judgment under the pseudonym Hollier and Harne (No 2) 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: TVC 1005 of 2008

Ms HOLLIER

Applicant

And

Mr HARNE

Respondent

REASONS FOR JUDGMENT

1. On 10 October 2008 Coker FM delivered orally reasons for orders that he made essentially relating to, on an interim basis, the periods and the circumstances under which the father was to spend time with the daughter of the parties, who then was about 5 and a half years of age.  He ordered that certain earlier orders become operative and Mr Harne, the father, has summarised those for me today.  The father spent a couple of hours a couple of times a week and alternate weekends with the child and this contact is supervised by his present wife.

2. It is a matter in which, I gather, over a long period of time there have been some allegations of either sexual abuse or risk of sexual abuse and there are some criminal proceedings relating to such matters, some it seems, completed and others pending.  It is, judging from even what I have already said, but also the reasons for judgment of Coker FM, a matter of considerable complexity and highly contentious evidence.

3. The written reasons became available, however, only a short time ago, just a few days before the application was first before me, which is for an extension of time within which the mother may appeal the interim orders.  The mother deposes that she had given instructions to appeal within a few days of the orders, and there is some evidence that attempts were then made to obtain written reasons. 

4. The application before me, however, was not filed until 9 April 2009, by which time the decision had been made to press on with an appeal, if on no other basis, on the basis that no written reasons had been given.  I might indicate that that basis seems to be a misunderstanding, in perhaps the profession and the community, insofar as it may constitute a ground of appeal.  If a Court makes orders but gives no reasons, saying that reasons will be given later, it may well be that an appeal succeeds after a fairly short period of time, simply on the basis that the orders are not supported by reasons. 

5. Where reasons are given orally that avenue of appeal, in my view, is no longer available, at least on the same footing, if on any footing at all.  In other words, here the mother had the choice that she made; namely to agitate for the written reasons but not file any notice of appeal until written reasons were received, or to file a notice of appeal within time and seek to amend, as no doubt would be permitted, when the written reasons were published.

6. This is not the first case in which a litigant has found himself or herself in that dilemma and the choices that are made vary; it is certainly not the first case in which the choice has been that which the mother shows here; namely not to file.

7. I simply observe that if the choice is not to file, the position of an intending appellant is very much advanced in relation to an extension of time if notice is give to the other parties as soon as the decision to appeal is made, of the intention to appeal when the written reasons become available.  That avoids one of the difficulties that the mother faces here; namely that, though she had decided to appeal within a short time of the orders, it was not until 18 March at a conference before the Registrar that the other parties were told of the mother's intention to appeal.

8. However, while there has been delay, firstly it has been explained.  Whether or not that is satisfactory is, for the reasons that I have outlined, probably arguable either way, but I would not say that the explanation is without any arguable support. 

9. More importantly, I think, in relation to delay that has occurred, is that the father does not say - and there is no other reason to think - that he has suffered any substantial prejudice as a result of the delay.  He is the beneficiary of orders that he spend time with the child.  He has been spending that time, as far as I know.  In other words, he has not acted to his disadvantage on the belief that there would be no appeal from the interim orders, or at least if he has he has put no evidence of that before the Court.  

10. Those observations, in my view, mean that the justice of this case, where the mother wishes to appeal, is that she ought be given that opportunity.  I say that with reluctance, for the reasons that I raised at the very outset of the hearing today; namely questions about the utility, but there is no sign in which one can have any confidence of a final hearing and certainly I accept that the matters raised are matters of seriousness.

11. Turning to the proposed grounds of appeal they, as currently framed, do not hone in on any particular aspect of the Federal Magistrate's reasons to assert specific errors, but if nothing else it is an attack on the weight and the discretionary considerations founding the Federal Magistrate's decision.  I have already remarked that appeals on that basis have a difficult hurdle to leap before success.

12. However, in a case of this seriousness and of this complexity it is not possible, in my view, for me to say that the appeal will not succeed or even is unlikely to succeed, simply that, as I said, it is a matter in which the usual hurdles in such matters can be anticipated.  If the mother wishes to prosecute an appeal then in these circumstances in my view, she should be given, the opportunity.

RECORDED  :  NOT TRANSCRIBED

ORDER DELIVERED

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate: 

Date:  5 June 2009