Patel and Oa**Riley

[2008] FamCAFC 186

FAMILY COURT OF AUSTRALIA

PATEL & O'RILEY [2008] FamCAFC 186

FAMILY LAW - APPEAL – from a decision of a Federal Magistrate – Leave to appeal out of time – Leave granted.

APPELLANT: Mr Patel

RESPONDENT: Ms O’Riley

FILE NUMBER: DGM 1007 of 2005

APPEAL NUMBER: SA 50 of 2008

DATE DELIVERED: 6 August 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 6 August 2008

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 14 April 2008

LOWER COURT MNC: [2008] FMCAfam 514

REPRESENTATION

COUNSEL FOR THE APPELLANT:  N/A

SOLICITOR FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. Pursuant to Rule 1.14 of the Family Law Rules 2004, the father be and is hereby granted leave to file a Notice of Appeal against paragraphs 5(a), 5(c) and 8 of the Minutes of Orders, incorporated into orders of the Court by virtue of paragraph 5 of the order made by Phipps FM on 14 April 2008.

2. The said Notice of Appeal be filed no later than 4:00 pm on 13 August 2008 and a sealed copy thereof be forthwith served on the respondent mother.

3. The said appeal be thereupon referred to the Southern Appeals registrar for listing for the making of such directions and orders as may be necessary to prepare it for hearing.

4. All questions of costs be reserved.

5. Liberty to apply be reserved, to Mushin J, if reasonably available or otherwise such other judge of the court as may be nominated by Finn J.

IT IS NOTED that publication of this judgment under the pseudonym Patel and O’Riley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  SA 50 of 2008

Mr Patel

Appellant

And

Ms O’Riley

Respondent

REASONS FOR JUDGMENT

1. On 14 April 2008, Phipps FM made orders in proceedings between the parties concerning their son, who is presently aged 10 years and in the primary care of the mother. 

2. The present application is made by the father and seeks the leave of the court to file a Notice of Appeal against his Honour's orders, notwithstanding that the time for filing such notice as of right has expired.

3. Today's hearing has been conducted by the father appearing in person.  I am satisfied that the mother is aware of today's application and has not sought to appear.  The husband's material in support of the application establishes on an unchallenged basis that the time for the filing of an appeal as of right against his Honour's orders expired on 12 May 2008.  The husband swears that on that day, he attempted to lodge an application for an extension of time but was unable to do so because the deadline had not yet expired.  In addition, he swears that he had not received a sealed copy of the final orders and he also used the incorrect form. 

4. He swears that the final orders were amended pursuant to rule 16.05.2(e) of the Federal Magistrates Court Rules and that he did not receive a copy of those amended orders until 30 May 2008. He did not receive a copy of the reasons for judgment until 12 June 2008.

5. In those circumstances, I accept that he did not have sufficient material to enable him to assess the merits of an appeal until the time had expired.  He filed the present application 13 days after the receipt of his Honour's reasons for judgment. 

6. As a result of his Honour's orders, the mother continues to live with the child in … in the state of Queensland.  The father seeks to appeal only against those parts of his Honour's orders relating to the time which he spends with the child, as well as the cost of travelling to enable the father and child to spend that time together.  There is a significant amount of money involved in the second of those issues and the question of time to be spent also raises matters of significance. 

7. In the circumstances, given that there is no challenge to this application by the mother that there are significant issues to be raised and the present application is filed within two weeks of the receipt of the reasons for judgment, I have decided on balance that it is appropriate that I grant the father the leave which he seeks.

8. I will require the Notice of Appeal to be filed within seven days and otherwise make orders for a directions hearing following the determination by the Chief Justice as to whether this appeal is to be heard by a court of three or a court of one.  I order accordingly.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  28 November 2008