HOOPER & FLANNERY

[2009] FamCAFC 186

FAMILY COURT OF AUSTRALIA

HOOPER & FLANNERY [2009] FamCAFC 186

FAMILY LAW – APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PRACTICE AND PROCEDURE – Application for extension of time – Reasons were delivered ex tempore – There was a delay in receiving the written reasons for judgment – Prospects of success of the proposed appeal were slim – Appeal against the costs order may have better prospects but in light of the discretion in making costs orders and expenses in mounting an appeal the justice of the case does not require an extension of time – Application dismissed – Applicant to pay the costs of the respondent

APPLICANT: Mr HOOPER

RESPONDENT: Ms FLANNERY

APPEAL NUMBER: NA 69 of 2009

FILE NUMBER: BRC 5850 of 2007

DATE DELIVERED: 29 September 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 29 September 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cooper

SOLICITORS FOR THE APPLICANT: Barry & Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Galloway

SOLICITOR FOR THE RESPONDENT: Holloway Jenkins

Orders

1. That the application for extension of time within which to file a notice of appeal filed 9 September 2009 be dismissed.

2. That the applicant father pay the respondent mother’s costs of and incidental to the application filed 9 September 2009 as agreed and in default of agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Hooper & Flannery 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: NA69 of 2009
FILE NUMBER: BRC 5850 of 2007

Mr HOOPER

Applicant

And

Ms FLANNERY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 4 August 2009, Howard FM dismissed a contempt application and a contravention application by Mr Hooper, described in the Federal Magistrate's reasons as the father, against Ms Flannery, described as the mother; both applications arising out of the same set of circumstances. His Honour suspended the operation of a restraint on the parties changing the school of their children until further order, and then made orders for the preparation of a family report, and finally, at least in terms of the substantive orders, that the father pay the mother the sum of $8000 by way of costs in respect of the father's applications for contempt and contravention, within 60 days.

2. The application with which I am concerned is that of the father requesting an extension of time within which to appeal all of the orders made that day, although I think in particular – I say that because of what is in the proposed notice of appeal, but in particular the dismissal of the applications for contempt and contravention, and in the costs order.  An affidavit by, I think, from memory, Ms P, deposes to some circumstances relating to the failure to file a notice of appeal within time.  It indeed suffers from the deficiencies properly highlighted by Mr Galloway of counsel,…