Jenkins and Russells
[2011] FamCAFC 193
•16 September 2011
FAMILY COURT OF AUSTRALIA
| JENKINS & RUSSELLS | [2011] FamCAFC 193 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Application allowed. |
| Family Law Act 1975 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Ms Jenkins |
| RESPONDENT: | Mr Russells |
| FILE NUMBER: | NCC | 2788 | of | 2009 |
| APPEAL NUMBER: | EA | 105 | of | 2011 |
| DATE DELIVERED: | 16 September 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 16 September 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 July 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1014 |
REPRESENTATION
| REPRESENTATION FOR THE APPELLANT: | In person |
| REPRESENTATION FOR THE RESPONDENT: | Mr Pearson, as agent for the respondent’s solicitor |
| SOLICITOR FOR THE RESPONDENT: | Penmans Solicitors |
Orders
That the time within which to lodge an appeal against orders made by Federal Magistrate Foster on 22 July 2011 be extended to 4 pm on 7 September 2011.
That, by virtue of order 1 hereof, the Draft Notice of Appeal filed on 7 September 2011 is deemed to have been filed within time.
That the costs of the respondent to this application be reserved to the hearing of the appeal.
That the appeal be listed for hearing before the Full Court, constituted by a single judge, on a date in the week commencing 5 December 2011 to be determined by telephone discussion with the Associate to Justice Coleman before 4 pm on Friday 23 September 2011.
That by no later than 4 pm on 15 November 2011 the appellant file and serve Appeal Books which shall include:
· Notice of Appeal;
· Orders of the Federal Magistrate;
· Reasons for judgment of the Federal Magistrate;
· Application and response and any relevant affidavit material read in the proceedings before the Federal Magistrate;
· Case outlines, if any, filed in the proceedings before the Federal Magistrate;
· Copy of the Family Report;
· Copies of exhibits tendered before the Federal Magistrate; and
· Summary of Argument.
That by no later than 4 pm on 30 November 2011 the respondent file and serve a Summary of Argument.
IT IS NOTED that publication of this judgment under the pseudonym Jenkins & Russells is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 105 of 2011
File Number: NCC 2788 of 2009
| MS Jenkins |
Appellant
And
| MR Russells |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 22 July 2011, Foster FM made a series of parenting orders which were by consent in relation to a child of the parties, G, who was born in February 1998. At time of the orders, the child G was 13 ½ years of age, notwithstanding which the parties made detailed orders defining time to be spent by the child with her father who is the respondent to this application.
The learned Federal Magistrate also made an order at that time, order 5, which was not by consent. The terms of his Honour’s engrossed order 5 were identical to those in paragraph 4.1 of the minutes of order which were the basis of the consent orders.
On 17 August 2011, the applicant, who is the natural mother and primary carer of the child the subject of the parenting orders, purported to appeal against order 5 made by the learned Federal Magistrate.
Regrettably, notwithstanding that the Notice of Appeal, which did not require leave, as it was an appeal against a parenting order and was purportedly filed within time, was rejected by the Appeals Registry. That is not said critically of the Appeals Registry, which no doubt acted in compliance with rules which govern the filing of notices of appeal. The Notice of Appeal, though regular in form, was rejected because it was not apparently accompanied by payment of a filing fee.
The applicant sought to have the payment of the filing fee dispensed with. That apparently could not be dealt with between 17 August and 22 August 2011, that is to say, within the time within which the applicant could appeal as of right. The applicant is accordingly in a position where she was out of time notwithstanding, there is no doubt, that she acted within time, to challenge the decision of the learned Federal Magistrate.
In Gallo v Dawson (1990) 93 ALR 479, McHugh J, in the judgment generally referred to in applications of this kind, discussed how application of rules relating to time for doing things ought not to be permitted to work an injustice. In the circumstances of this case, to apply the rules would be to visit an injustice or potential injustice upon the applicant. Had the filing fee dispensed with within time, or the applicant paid it subject to seeking to have it remitted subsequently, there is no doubt that the applicant would have been able, as of right, to challenge the parenting order, order 5, made by the learned Federal Magistrate. The reality is that refusing to extend time to appeal effectively disposes of the applicant’s rights to challenge the decision of the learned Federal Magistrate as her only avenue of possible address would be to the High Court.
Prejudice to the respondent if time is extended is relevant. The respondent’s counsel sought an adjournment of the application for two weeks in order that counsel who appeared for the respondent father before the Federal Magistrate could appear on this application. The Court declined to adjourn the proceedings, essentially on the basis that nothing would be any different in terms of the issues requiring determination of whether to allow or reject the applicant’s application. Moreover, the applicant is unrepresented and incurring no legal fees, whilst the respondent is represented and is incurring legal fees. In the circumstances notwithstanding that it was not unreasonable to seek an adjournment, the Court declined to grant an adjournment on the two bases indicated. Nothing would be different on the next occasion except that the respondent’s costs would have been increased.
In terms of the prejudice to the respondent and possible merits of the proposed appeal, the Court notes that there are property settlement proceedings which have been fixed for trial before the learned Federal Magistrate on 23 November 2011. Albeit there may be some uncertainty about the applicant’s possible entitlement to access whatever she is awarded on that day, or as a result of the trial on that day, there appear to be matrimonial funds well in excess of anything likely to be ordered by way of costs of this application and the appeal if the appeal is allowed to be maintained but ultimately proves unsuccessful.
In terms of the possible merits of the appeal, the most that can be said is that it is not demonstrably hopeless. It might be, once the transcript materialises and the reasons for judgment of the Federal Magistrate are known but, at this moment, neither of those things being available, it cannot be said that the proposed appeal is demonstrably hopeless. In those circumstances, the interests of justice would be better served by extending time to appeal, taking steps for the appeal to be listed for hearing and reserving the costs of this application to be determined at the appeal.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 16 September 2011.
Associate:
Date: 26.09.11
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