Stanley & Rena
[2009] FamCAFC 40
•23 February 2009
FAMILY COURT OF AUSTRALIA
| STANLEY & RENA | [2009] FamCAFC 40 |
| FAMILY LAW – APPEAL - Application for leave to file a Notice of Appeal out of time – Where the applicant received incorrect advice about the time in which he had to file the notice – Where the delay in filing was short APPLICATION – Allowed – extension of time granted |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | MR STANLEY |
| RESPONDENT: | MS RENA |
| FILE NUMBER: | BRM | 2705 | of | 2006 |
| APPEAL NUMBER: | NA | 7 | of | 2009 |
| DATE DELIVERED: | 23 February 2009 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 23 February 2009 |
REPRESENTATION
| APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | Butler McDermott Solicitors |
Orders
That the appellant be given leave to file a Notice of Appeal in relation to the orders made by Federal Magistrate Wilson made on 23 December 2008, within 7 days of today’s date.
That both the appellant and respondent attend upon the Appeals Registrar on a date to be fixed for directions to be made in the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Stanley & Rena is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: NA7 of 2009
| MR STANLEY |
Appellant
And
| MS RENA |
Respondent
EX-TEMPORE
REASONS FOR JUDGMENT
This is an application for leave to file a Notice of Appeal out of time. The application was filed on 4 February 2009, the judgment was delivered on 23 December 2008.
It is not without importance to observe that the hearing of this matter commenced on 14 and 15 November, then on 15 December 2006 and then, there being no judgment delivered by the Federal Magistrate the matter was reopened on the application of the mother. Further hearing took place on 5 and 6 November, ultimately as I have mentioned judgment being given on 23 December 2008.
It is explained by the applicant that the reason for his delay was incorrect advice in relation to how the days should be counted from the judgment until when the notice of appeal should be filed. Mr Stanley told me this morning that it was information given to him from the Federal Magistrates Court.
As Mr Linklater-Steele, who appears for the respondent, correctly conceded there can be no doubt that is an adequate explanation for the delay and nor could it be said that there has been a long period of time that has expired from the judgment to the action taken by the appellant.
Mr Linklater-Steele correctly referred to Gallo v Dawson (1990) 93 ALR 479 as to the well-known principles to be applied in considering such matters. His submissions were that I should take into account the history of the litigation to which I have mentioned and the possible impact on these children of the matter not being concluded. Not the least of the concerns, of course, is the impact upon the parties as well, the financial and emotional stress that must be accorded by such a very lengthy history of litigation.
However, quite properly, Mr Linklater-Steele conceded that there obviously are some grounds of appeal which may have merit. The effect of his Honour's orders are that the father has no time at all with these children and no opportunity to do so in the future, thus the orders have a very serious effect, not just on him but on the potential for the relationship between the children and their father.
There being such limited delay and a reasonable explanation for the delay, it seems to me, albeit very difficult no doubt for the mother to manage the prospect of there being further litigation, leave should be granted.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May
Associate:
Date: 18 March 2009
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