Pannett & Crain
[2018] FamCAFC 99
•24 May 2018
FAMILY COURT OF AUSTRALIA
| PANNETT & CRAIN | [2018] FamCAFC 99 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Where the applicant seeks an extension of time to file a Notice of Appeal – Where there was a delay between the primary judge delivering an ex tempore judgment and settling the reasons for judgment – Where the settled reasons were necessary to prepare the Notice of Appeal – Where there is therefore a reasonable explanation for the applicant’s delay in filing a Notice of Appeal – Application allowed. |
| Family Law Rules 2004 (Cth) r 22.03 |
| Sargent & Selwyn (2017) FLC 93-812; [2017] FamCAFC 228 |
| APPLICANT: | Mr Pannett |
| RESPONDENT: | Ms Crain |
| INDEPENDENT CHILDREN’S LAWYER: | Kathryn Renshall Lawyers |
| FILE NUMBER: | PAC | 5431 | of | 2015 |
| APPEAL NUMBER: | EA | 62 | of | 2018 |
| DATE DELIVERED: | 24 May 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 24 May 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 March 2018 |
| LOWER COURT MNC: | [2018] FCCA 1341 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Hernandez |
| SOLICITOR FOR THE RESPONDENT: | Forshaw Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Renshall |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kathryn Renshall Lawyers |
Orders
The time for filing a Notice of Appeal against the orders made by Judge Harman on 28 March 2018 is extended up to and including 14 June 2018.
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 Pannett & Crain 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: EA 62 of 2018
File Number: PAC 5431 of 2015
| Mr Pannett |
Applicant
And
| Ms Crain |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
By an Application in an Appeal filed on 3 May 2018, Mr Pannett (“the father”) seeks an extension of time in which to file a Notice of Appeal from final parenting orders made by Judge Harman on 28 March 2018.
The proceedings were between the father and Ms Crain (“the mother”) and concerned the parenting arrangements for their child, who was born on 21 December 2010. The orders provided for the child to live with her mother who was to have sole parental responsibility for her. They also provided that the child should spend no time and have no communication whatsoever with her father. They are, thus, orders of very significant impact.
His Honour’s reasons were given ex tempore on 28 March 2018 after a three day hearing on 26, 27 and 28 March 2018. They are extensive and extend to some 241 paragraphs.
A copy of the settled reasons of his Honour has only become available today and the parties have not yet received a copy. Nonetheless, the parties are in a position to proceed with the application today.
The mother did not consent to the application but did not oppose it. The Independent Children’s Lawyer very properly accepted that, in the circumstances, there was nothing that could be said against the application being successful.
One of the purposes of reasons for judgment is to enable parties, particularly in parenting cases, to understand why the orders have been made.
It is also important that reasons are available because it enables the parties to consider whether or not they have proper grounds for appeal. Here, the reasons were given orally, very promptly, but it has taken over two months for the settled reasons to become available. That delay is unfortunate.
It is well established that whilst a court may make orders and then give reasons later, that should not happen as a matter of course and the reasons should promptly follow the orders: Sargent & Selwyn (2017) FLC 93-812 at [68] and following. The position is not exactly the same here in that reasons were given orally but it is analogous.
As I have said, given their length, it would be unreasonable to expect anyone, let alone a litigant in person, to be able to formulate a proper Notice of Appeal having heard those reasons only once. The father sought a copy of the settled reasons from his Honour reasonably promptly and they have only become available today – that is, more than 28 days past the 28 day period for appeals.
Whilst this Court is cognisant of the workload of the Federal Circuit Court of Australia, if reasons are to be given orally, the settled reasons must become available reasonably promptly and certainly within sufficient time to permit the lodging of a Notice of Appeal in accordance with the 28 days provided by r 22.03 of the Family Law Rules 2004 (Cth). Otherwise, one of the main purposes of providing reasons is entirely defeated. It would be better if reasons in those cases were slightly delayed so that there is not this unfortunate gap between the giving of the oral reasons and the settled reasons becoming available.
Given that delay, which cannot be sheeted home to the father, the nature of the orders and that very properly there has been no opposition to the application, it is in the interests of justice that an extension of time be granted.
The father tells me that he is going to get some assistance next week in the drafting of a proper Notice of Appeal. There was no opposition to his request that he be granted three weeks to file a Notice of Appeal.
Accordingly, the time in which an appeal can be lodged against the orders made by Judge Harman on 28 March 2018 in proceedings PAC 5431 of 2015 is extended up to and including 14 June 2018.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 24 May 2018.
Legal associate:
Date: 28 May 2018
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