Reilly and Drummond
[2016] FamCAFC 245
•3 November 2016
FAMILY COURT OF AUSTRALIA
| REILLY & DRUMMOND | [2016] FamCAFC 245 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks an extension of time in which to file Appeal Books – Where the Notice of Appeal was filed within time – Where the delay is due to the applicant awaiting the determination of her application for special circumstances funding for the appeal – Application allowed. |
| Jackamarra v Krakouer and Anor (1998) 195 CLR 516 |
| APPLICANT: | Ms Reilly |
| RESPONDENT: | Ms Drummond |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Mowbray |
| FILE NUMBER: | WOC | 775 | of | 2009 |
| APPEAL NUMBER: | EA | 14 | of | 2016 |
| DATE DELIVERED: | 3 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 3 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 December 2015 |
| LOWER COURT MNC: | [2015] FCCA 2904 |
REPRESENTATION
| FOR THE APPLICANT: | In person by telephone |
| SOLICITOR FOR THE RESPONDENT: | Ms Weigang |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Mowbray by telephone |
Orders
The Notice of Appeal filed on 18 January 2016 is reinstated.
The time in which the appeal books are to be filed is extended up to and including 10 October 2016.
The appellant is to serve the appeal books upon the independent children’s lawyer no later than the close of business on 14 November 2016.
The time for the appellant to file and serve her List of Authorities and Summary of Argument is extended up to and including 5 December 2016.
The time for the respondent and the independent children’s lawyer to file and serve their List of Authorities and Summary of Argument is extended up to and including 24 January 2017.
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 Reilly & Drummond 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 14 of 2016
File Number: WOC 775 of 2009
| Ms Reilly |
Applicant
And
| Ms Drummond |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an Application in an Appeal filed on 10 October 2016 in which Ms Reilly (“the applicant”) seeks an extension of time to file the appeal books.
I will outline a short history of the matter for context.
The reasons in the parenting case between the applicant and Ms Drummond (“the respondent”), who is the applicant’s mother, were delivered and orders made on 21 December 2015. The applicant filed a Notice of Appeal on 18 January 2016; thus the appeal has regularly been brought.
On 8 April 2016, directions were made for the preparation of the appeal, including an order that the applicant prepare ten copies of the appeal book, file four of them and serve the respondent and the independent children’s lawyer with copies by 17 May 2016. That order was not complied with.
On 9 August 2016, Registrar Cameron, by consent, extended the time to file and serve the appeal books and appellant’s Summary of Argument to 7 October 2016. It appears that two copies of the appeal books were filed shortly after that date. The respondent was served with copies of the appeal books on 19 October 2016, and the independent children’s lawyer has yet to be served.
No Summary of Argument has yet been served, although the applicant has informed me that she believes she would be in a position to do this next week. She says that the lawyers who previously acted for her have prepared the document and that she should be able to obtain and file it.
The explanation for the delay in filing the appeal books is firstly that the applicant was waiting for the consideration of an application for legal aid. It was refused, and she subsequently sought special circumstances funding from the Attorney‑General’s Department. The applicant said she understood that the application had been lodged in August 2016, but had to be resubmitted in September 2016. Her information is that the Attorney-General’s Department only received the resubmitted application on 14 October 2016 and that the application is yet to be considered.
I bear in mind, in particular, that this is an appeal which was regularly commenced (Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at 520 and 528). The appeal books have been prepared and one of the parties has been served with them.
In those circumstances, I will grant the extension of time as sought but will make some further directions to enable the matter to proceed, including directions for the filing of a Summary of Argument. The applicant must understand, however, that if she does not file the Summary of Argument by the due date, the court, on request of the other parties or of its own motion, may list the appeal for dismissal for failure to comply with the requirement to file the Summary of Argument.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 3 November 2016.
Associate:
Date: 30 November 2016
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