Saunders & Yorke
[2021] FedCFamC1A 5
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Saunders & Yorke [2021] FedCFamC1A 5
Appeal from: Yorke & Saunders [2021] FamCA 426 Appeal number(s): EAA 83 of 2021 File number(s): PAC 5517 of 2018 Judgment of: AINSLIE-WALLACE J Date of judgment: 1 September 2021 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal for extension of time - Where the applicant was one day late in filing the Notice of Appeal – Where the applicant relied on counsel’s calculation for the date for the filing of the appeal – application allowed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Gallo v Dawson (1990) 93 ALR 479 Number of paragraphs: 5 Date of hearing: 1 September 2021 Place: Sydney Counsel for the Appellant: Ms Bateman Solicitor for the Appellant: Men’s Legal Service Counsel for the Respondent: Mr Heazlewood Solicitor for the Respondent Katsoolis & Co Counsel for the Independent Children’s Lawyer Mr Blank Solicitor for the Independent Children’s Lawyer Claremont Legal ORDERS
EAA 85 of 2021
PAC 2121 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN: MR SAUNDERS
ApplicantAND: MS YORKE
RespondentINDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
1 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The time in which the applicant may file a Notice of Appeal is extended and the applicant file and serve the Notice of Appeal in the form appended to the application for an extension of time within seven (7) days of this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saunders & York has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
AINSLIE-WALLACE J
This is an application for an extension of time in which to file a Notice of Appeal against final parenting orders made by a Judge of the Family Court on 23 June 2021.
The effect of the orders is that two children of the parties’ relationship live with the mother, she have sole parental responsibility and the children spend no time nor have any communication with the father.
The Notice of Appeal was attempted to be filed one day late but I have had the advantage of seeing the proposed grounds of appeal. Rule 13.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides the Notice of Appeal must be filed within twenty eight days after the order appealed from is made and where an appeal is not filed within time then the principles which emerge from Gallo v Dawson (1990) 93 ALR 479 fall to be considered and in particular whether a strict compliance with the rule would constitute an injustice.
Having considered the orders and their effect and the grounds, I am of the view that a strict application of the rule would work an injustice on the following basis. First, the delay is as I said a matter of one day. Secondly, neither the respondent nor the Independent Children’s Lawyer raises any objection in principle to the application nor do they raise any particular prejudice.
It is necessary in this context to consider the merits of the appeal obviously because if an appeal is devoid of merit it would be futile to make the orders sought. Having considered the judgment and the proposed grounds of appeal I am of the view that the appeal is arguable such that to extend time would not be futile and I will thus make the order sought.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 10 September 2021
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