Langley & Tarelli (No. 3)
[2021] FamCAFC 36
•12 March 2021
FAMILY COURT OF AUSTRALIA
Langley & Tarelli (No. 3) [2021] FamCAFC 36
Appeal from: Tarelli & Langley (No. 5) [2021] FamCA 26 Appeal number(s): EAA 17 of 2021 File number(s): PAC 4311 of 2014 Judgment of: ALDRIDGE J Date of judgment: 12 March 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Appeal against stay of final parenting orders – Reasonable explanation for delay – Appeal expedited – Application granted. Legislation: Family Law Rules 2004 (Cth) r 24.05(2) Cases cited: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Division: Appeal Division Number of paragraphs: 15 Date of hearing: 12 March 2021 Place: Sydney (via video link) ORDERS
EAA 17 of 2021
PAC 4311 of 2014APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS LANGLEY
Applicant
AND: MR TARELLI
First Respondent
DEPARTMENT OF COMMUNITIES AND JUSTICE
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
12 MARCH 2021
THE COURT ORDERS THAT:
1.The time in which the applicant is to file and serve the Notice of Appeal is extended up to and including Tuesday 16 March 2021.
2.The appeal is fixed for hearing at the same time as the Appeal No. EAA 1 of 2021, on Monday 12 April 2021 at 10.00 am.
3.Leave is granted to the parties to approach the Appeal Registrar for the making of such directions that may be necessary in having the appeal ready to proceed on Monday 12 April 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Langley & Tarelli (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
By an Amended Application in an Appeal filed on 9 March 2021, Ms Langley (“the mother”) seeks an extension of time in which to file a Notice of Appeal against a decision given by a judge of the Family Court of Australia on 22 January 2021.
That same judge made final parenting orders between the mother and Mr Tarelli (“the father”) on 18 December 2020.
Also involved in the proceedings was the Secretary of the Department of Communities and Justice. The child was represented by an Independent Children’s Lawyer.
In short, the effect of those final parenting orders were that the child who had been living for some time with the father was henceforth to live with the mother. A Notice of Appeal against that decision was filed by the father on 4 January 2021. That appeal has been expedited and fixed for hearing on the 12 April 2021.
The mother sought to enforce the orders by having the child live with her, and brought an application to that effect. This was countered by an application by the father seeking a stay of the orders pending the appeal on 12 April 2021. In reasons given on 22 January 2021, her Honour granted the stay and dismissed the mother’s application for enforcement of the final parenting orders.
The mother now wishes to appeal against that order and attempted to file a Notice of Appeal electronically on the 28th day after 22 January 2021, but did so after 4.30 pm.
Quite correctly, the Appeal Registrar did not accept that document for filing because r 24.05 (2) of the Family Law Rules 2004 (Cth) provides that a document that is sent for filing by electronic communication after 4.30 pm according to legal time in the Australian Capital Territory is taken to have been received by the filing registry on the next day when the filing registry is open.
Correctly recognising that to be so, Mr Page of Queen’s Counsel who appeared for the mother, did not press the review of the Appeal Registrar’s decision which was also sought in the Application.
APPLICATION FOR AN EXTENSION OF TIME
The Court has power to extend time in which to lodge a Notice of Appeal.
The criteria to be taken into account on such applications is set out by McHugh J in Gallo v Dawson (1990) 93 ALR 479. The aim is to ultimately do justice between the parties.
Here, the mother has given a reasonable explanation as to why the Notice of Appeal was not lodged by her solicitor within the required time. It is not suggested that the grounds of appeal relied on by the mother are not arguable. Accordingly, it is in the interest of justice that there be an extension of time to file the Notice of Appeal.
The father, the Secretary of the Department of Communities and Justice, and the Independent Children’s Lawyer did not oppose such a course.
Accordingly, the orders will be that time for filing a Notice of Appeal from the judgment delivered on 22 January 2019 be extended up until and including 16 March 2021.
The appeal is fixed for hearing at the same time as the substantive appeal (Appeal No. EAA 1 of 2021) which is 12 April 2021 at 10.00 am.
Parties have leave to approach the Appeal Registrar for the making of such directions that may be necessary in having the appeal ready to proceed on the above-mentioned date.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 18 March 2021
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