Stone and Stone and Anor

[2015] FamCAFC 242

FAMILY COURT OF AUSTRALIA

STONE & STONE AND ANOR [2015] FamCAFC 242

FAMILY LAW – APPLICATION IN AN APPEAL – Application to reinstate abandoned appeal – Where the appeal books are near completion, and some delay was occasioned by the applicant wishing to inspect documents at the Court – Where there has been family illness in the applicant’s family – Where the applicant and second respondent have no time with the children – Where the appeal is not frivolous – Application allowed.

Family Law Rules 2004 (Cth) r 22.2, 22.4

Bemert & Swallow (2010) FLC 93-441

APPLICANT: Ms S Stone

FIRST RESPONDENT: Mr Stone

SECOND RESPONDENT: Ms Stone

INDEPENDENT CHILDREN’S LAWYER: Tracy-Lynne Geysen

FILE NUMBER: BRC 1645 of 2011

APPEAL NUMBER: NA 10 of 2015

DATE DELIVERED: 2 December 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 2 December 2015

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 22 January 2015

LOWER COURT MNC: [2015] FamCA 14

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE FIRST RESPONDENT:	In person
FOR THE SECOND RESPONDENT:	In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Carmody

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:: Couper Geysen Family and Animal Law

Orders

1. The Application to reinstate appeal NA10 of 2015 be allowed.

2. The time for the filing of the appeal books, as provided in paragraph 7 of the orders made on 4 May 2015 be extended to a date to be determined by the Registrar at a further directions hearing.

3. The directions made in paragraphs 9, 10, 11, 12, 13 and 14 be discharged.

4. A further directions hearing be fixed by the appeal registrar to make directions in relation to the filing of the appeal books, the filing of summaries of argument and any other necessary directions.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 10 of 2015
File Number: BRC 1645 of 2011

Ms S Stone

Applicant

And

Mr Stone

First Respondent

And

Ms Stone

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In an Application in an Appeal filed on 28 August 2015, the appellant, Ms S Stone, to whom I will refer as “the grandmother” seeks that her appeal be reinstated.  The grandmother failed to comply with directions that required the appeal books to be filed on or before 4 pm Friday, 31 July. 

2. This failure led to her appeal being deemed abandoned, pursuant to r 22.2(1) of the Family Law Rules 2004 (Cth) (“the Rules”). A party may apply to have an appeal taken to be abandoned to be reinstated (per r 22.4(4)). Although the Rules do not indicate the matters to be taken into account in such applications, the general principles are those where time limits apply have…