Nedza and Nedza
[2012] FamCAFC 128
FAMILY COURT OF AUSTRALIA
| NEDZA & NEDZA | [2012] FamCAFC 128 |
| FAMILY LAW – APPEAL – Application in an appeal – Where the applicant sought leave to file an appeal out of time – Where the applicant mistakenly thought the interim orders had determined the matter on a final basis – Appeal has no prospect of success – Application dismissed. |
| APPELLANT: | Ms Nedza |
| RESPONDENT: | Mr Nedza |
| FILE NUMBER: | PTW | 4803 | of | 2010 |
| APPEAL NUMBER: | WA | 12L | of | 2012 |
| DATE DELIVERED: | 7 June 2012 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 7 June 2012 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 23 January 2012 |
| LOWER COURT MNC: | PTW 4803 of 2010 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person (by telephone) |
| COUNSEL FOR THE RESPONDENT: | No appearance |
Orders
The Application in an Appeal filed on 30 April 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nedza & Nedza has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 12 L of 2012
File Number: PTW 4803 of 2010
| Ms Nedza |
Appellant
And
| Mr Nedza |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Before the Court today is the Form 21 Application in an Appeal filed on 30 April 2012 by the mother, Ms Nedza. The proposed appeal relates to an order made by Family Law Magistrate Sutherland on 23 January 2012.
The Application in an Appeal seeks an extension of time within which to appeal. An extension is necessary because the appeal should have been filed within 28 days of the handing down of the judgment.
The applicant has provided an explanation, and I would suggest probably an adequate explanation, for the delay in bringing her appeal. But before permission would be given for an extension of time, it would be necessary for me to determine that there is some merit, or potential merit, in the appeal.
I suspected before the commencement of the hearing that the applicant, who does not have legal representation and whose first language is not English, may not have understood what occurred at the hearing in January. Having spoken with her this morning, my suspicion has been confirmed, and that is that the applicant feared that this matter had been dealt with on a final basis and that she had no other means of having the decision tested other than by an appeal.
I have explained to the applicant that, in fact, the order that was made only dismissed her application on an interim basis and the application was dismissed because, on the evidence that was then available, the Magistrate did not consider it appropriate to make the order sought allowing the applicant to take the children back to Poland for a holiday.
The fact that the application was dismissed in January 2012 does not mean that the court has finished dealing with this issue. The applicant still has an application pending in the Family Court of Western Australia for permission to take the children to Poland, but that application will now not be heard until the case has been brought on for a final trial.
In this matter there is a conference listed for 8 August 2012, at which the Registrar of the court who will be conducting the conference will make directions about the future conduct of the matter.
At the present time, there are two different issues pending before the Family Court, first, the issue about the children and going home to Poland for a visit, and the second relates to financial matters.
It is not absolutely necessary, although it is normal, for all of the issues to be dealt with at the one time, but it is possible for the Registrar to make directions that the issue about the trip to Poland be dealt with separately and more urgently than the issue concerning financial matters.
I have stressed today to the applicant that I am not in a position to direct the Registrar about whether or not the two issues should be dealt with separately, and I am certainly not in a position to direct the Registrar that one of the issues should be dealt with more urgently than the other.
What I have indicated to the applicant that I will do is to have my associate ensure a memorandum is placed on the Family Court of Western Australia file indicating that at the conference in August 2012 the applicant will be asking the Registrar to make directions, or may be asking the Registrar to make directions, for a more prompt hearing of the issue relating to the trip to Poland.
But dealing now just with the only matter that is before me today, and that is the request for an extension of time within which to appeal, I have determined that because the appeal would have no prospect of success, it would not be appropriate to extend the time.
The Form 21 Application in an Appeal is therefore dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 June 2012.
Associate:
Date: 21 August 2012
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