Mursell & Rean (No 2)
[2020] FamCAFC 155
•25 June 2020
FAMILY COURT OF AUSTRALIA
| MURSELL & REAN (NO. 2) | [2020] FamCAFC 155 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant failed to file the digital transcript of the proceedings before the primary judge on time – Where the delay is minor – Where the default has been cured – Where no particular prejudice flows to the respondent – Application allowed – Where the time for the filing of the digital transcript is extended – Appeal reinstated. |
| Family Law Rules 2004 (Cth) rr 22.03, 22.21 |
| Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Jess v Scott (1986) 12 FCR 187; [1986] FCA 365 |
| APPLICANT: | Ms Mursell |
| RESPONDENT: | Mr Rean |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 3878 | of | 2018 |
| APPEAL NUMBER: | EAA | 21 | of | 2020 |
| DATE DELIVERED: | 25 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 25 June 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 January 2020 |
| LOWER COURT MNC: | [2020] FCCA 42 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Adams & Partners Lawyers |
| THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders made on 25 June 2020
Appeal no. EAA 21 of 2020 be reinstated.
The time for the applicant to file the digital transcript be extended up to and including 25 June 2020.
Order 7 made by Registrar Cameron on 7 April 2020 be amended by inserting “16 July 2020” in lieu of “16 June 2020”.
Order 8 made by Registrar Cameron on 7 April 2020 be amended by inserting “14 August 2020” in lieu of “14 July 2020”.
Order 9 made by Registrar Cameron on 7 April 2020 be amended by inserting “11 September 2020” in lieu of “11 August 2020”.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mursell & Rean (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 21 of 2020
File Number: NCC 3878 of 2018
| Ms Mursell |
Applicant
And
| Mr Rean |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
This is an application by Ms Mursell (“the applicant”) for an extension of time in which to file the transcript of the proceedings the subject of her appeal. The application is opposed by Mr Rean (“the respondent”) but consented to by the Independent Children’s Lawyer.
The proceedings between the parties concern the parenting arrangements for a young child born in 2018.
On 13 January 2020, the primary judge ordered that the child live with the applicant and spent two hours with the respondent on “the first Saturday and first Sunday of each calendar month” at the B Contact Service at Town A.
The applicant did not lodge an appeal against those orders within the time provided for in r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”), but on 11 March 2020, Justice Ainslie-Wallace extended the time in which a Notice of Appeal could be filed by the applicant. Her Honour expressly found in doing so that the proposed appeal was sufficiently arguable so as to justify the extension of time.
An Appeals Registrar conducted a procedural hearing on 7 April 2020 and directed that the digital appeal book and the digital transcript of the proceedings before the primary judge be filed on or before 19 May 2020, and that if those documents were not filed, the appeal would be taken to have been abandoned.
The digital appeal book was filed within the time provided for in the Appeal Registrar’s directions but the digital transcript of the proceedings before the primary judge was not.
The solicitor for the applicant ordered the transcript on 15 May 2020. She informs me that this was because there were difficulties obtaining the transcript from Auscript due to the COVID-19 pandemic and staffing changes that it had caused, and that it may be better to delay seeking the transcript, albeit seeking an urgent transcript would come at a greater expense.
Notwithstanding having organised and paid for the transcript to be provided within 24 hours, it was not received and still had not been received at the time that this application was filed on 27 May 2020. The digital transcript has now been filed.
Essentially, the issue is whether the applicant’s delay in filing the transcript, in the order of a fortnight or so, justifies the appeal being terminated at this stage.
The respondent rightly points out that perhaps it would have been more prudent to have ordered the transcript at an earlier date, rather than leaving it to the last possible time. But even if that is correct, that is due not to the fault of the applicant but her lawyers, and the procedural defaults of lawyers should not be sheeted home to their clients (Jess v Scott (1986) 12 FCR 187).
The respondent also points out that this is just one of what he describes as a litany of procedural defaults. It is true that an extension of time was required to enable the appeal to proceed but otherwise the respondent does not identify any particular default and accordingly, it is not possible to give any other weight to that assertion.
The High Court of Australia has made it quite clear in Jackamarra v Krakouer (1998) 195 CLR 516 at 521 that a person’s right to appeal that has been invoked should not lightly be lost through procedural delays. The delay is relatively minor, it has been cured and whilst the respondent points to prejudice in a general sense, which he is entitled to do, there is no suggestion that any particular prejudice flows to him.
Accordingly, I am satisfied that it is in the interests of justice that the time for the filing of the transcript be extended. I note that it already has been filed but out of abundant caution, there will be an order that the time for the filing of the digital transcript be extended up to and including today.
Rule 22.21 of the Rules deems an appeal be abandoned if the appeal books are not filed by the due date, however the Appeal Registrar’s order extended that to include the transcript as well. So for more abundant caution, I will also make an order reinstating the appeal to the extent necessary.
Accordingly, I order that the time for the filing of the digital transcript in this matter be extended up to and including 25 June 2020 and to the extent necessary the appeal be reinstated.
The dates in Orders 7, 8 and 9 of the orders made by the Appeals Registrar on 7 April 2020, will be amended so that the dates become respectively, 16 July, 14 August and 11 September 2020.
I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Aldridge delivered on 25 June 2020.
Associate:
Date: 1 July 2020