Sadberry and Jablon

[2014] FamCAFC 166

FAMILY COURT OF AUSTRALIA

SADBERRY & JABLON [2014] FamCAFC 166

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file a Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where the reason for delay in filing a Notice of Appeal is accepted  – Leave granted.

Family Law Rules 2004 (Cth)

Gallo & Dawson (1990) 93 ALR 479

APPLICANT: Ms Sadberry

RESPONDENT: Mr Jablon

FILE NUMBER: DUC 300 of 2013

APPEAL NUMBER: EA 45 of 2014

DATE DELIVERED: 22 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 22 July 2014

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 20 March 2014

LOWER COURT MNC: [2014] FCCA 913

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Perkins

SOLICITOR FOR THE APPLICANT: Queensland Lawyers

COUNSEL FOR THE RESPONDENT: Ms Obradovic

SOLICITOR FOR THE RESPONDENT: Peacockes

Orders

1. Subject to compliance with Order 2 of these orders appeal EA 45 of 2014 is reinstated.

2. Within seven (7) days the applicant shall file a draft Appeal Index.

3. Costs of the Application in an Appeal filed 9 July 2014 are reserved to the hearing of the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sadberry & Jablon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number:  EA 45 of 2014
File Number: DUC 300 of 2013

Ms Sadberry

Applicant

and

Mr Jablon

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. This is an Application in an Appeal filed by Ms Sadberry (“the applicant”) on 9 July 2014 for reinstatement of a Notice of Appeal she filed on 16 April 2014. 

3. The appeal concerns interim parenting orders made by Judge Dunkley on 20 March 2014. The orders require the applicant to relocate the parties’ daughter, M (“the child”), from far north Queensland to W in New South Wales and that the child’s father, Mr Jarbon (“the respondent”), who is the respondent to this application, have time with her for one hour each Saturday and Sunday.

Background

1. It is the respondent’s contention that, without his knowledge, the applicant changed the child’s place of residence from W to Queensland.  As a consequence, proceedings were commenced by him to have the child returned to the area where, it is understood, she previously lived. 

2. By operation of r 22.13(2)(a) of the Family Law Rules 2004 (Cth) (“the rules”), the applicant was required to file a draft appeal index within 28 days of the judgment being handed down. The draft appeal index was not filed within time. It is understood that on the approach of the applicant, the Eastern Appeals Registrar extended the time for her to file the draft appeal index to 12 June 2014. The draft appeal index was not filed by the extended date, as a consequence of which the appeal was deemed to be abandoned. It was only when the Eastern Appeals Registrar informed the applicant of this that she realised her mistake.

3. In support of her application for reinstatement, the applicant relies on an affidavit filed by her on 9 July 2014, and an affidavit by her solicitor filed the same day.  The gravamen of the solicitor’s evidence is that, although a grant of legal aid was awarded to the applicant on 1 May 2014, he was unaware of this until about 27 May 2014.  Nonetheless, he provided assistance to the applicant in relation to completion of the draft appeal index and, in effect, left it to her to comply with the rules.

4. Self-evidently, she did not.  By way of explanation, the applicant deposed that she suffers from a bipolar disorder, and, at [7], said:

   …many of the normal stresses in life are more difficult for me and under additional stress I am (sic) become a lot less focused than usual.

5. She recalls receiving the draft index of appeal from her solicitor, but misunderstood that it was his expectation that she would file the draft index.  As a consequence, it was not filed within the time required by the rules, or the period of the extension given by the Eastern Appeals Registrar.  The solicitor explained that had he known, as at 1 May 2014, a grant of legal aid had been made in the applicant’s favour, the draft appeal index would have been filed within the extended time. 

6. It was submitted on behalf of the respondent that there was an inconsistency in the evidence given by the solicitor and the statements made on his behalf to Judge Dunkley on 27 May 2014 as to the status of the grant of legal aid and, as a consequence, his reason for not filing the draft index of appeal was inadequate.  As that issue was teased out, there was no inconsistency, and I have no difficulty accepting the solicitor’s evidence.

7. The effect of this is that the applicant has adduced evidence which demonstrates a misunderstanding by the applicant that the solicitor expected that she would file the draft index of appeal, rather than him doing it, and a reasonable explanation by the applicant and the solicitor for the failure to file the draft appeal index, either within time or within the extended period. 

8. Consistent with the principles set out in cases such as Gallo & Dawson (1990) 93 ALR 479, this is a proper case for the relief sought, and the appeal will be reinstated.

9. It will be necessary, however, to attach conditions to the reinstatement so the court and respondent can be confident that the draft appeal index will be presented in a timely way. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 22 July 2014.

Associate:     

Date:              09 September 2014