Tessalar and Tessalar (No. 2)
[2010] FamCAFC 76
•24 March 2010
FAMILY COURT OF AUSTRALIA
| TESSALAR & TESSALAR (NO. 2) | [2010] FamCAFC 76 |
| FAMILY LAW - APPEAL – Application for a further extension of time within which to file notice of appeal out of time – Delay explained by husband – Application not opposed by wife – Application granted. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| APPELLANT: | Mr Tessalar |
| RESPONDENT: | Ms Tessalar |
| FILE NUMBER: | DNC | 265 | of | 2009 |
| APPEAL NUMBER: | NA | 88 | of | 2009 |
| DATE DELIVERED: | 24 March 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 24 March 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 November 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1370 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Elliott Northern Territory Legal Aid |
Orders
The time within which the husband may file a Notice of Appeal against the orders of Federal Magistrate Terry made on 5 November 2009 be further extended to 4:00pm on 30 April 2010.
The respondent’s costs of and incidental to the application for an extension of time within which to appeal be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Tessalar & Tessalar (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 88 OF 2009
File Number: DNC 265 of 2009
| Mr Tessalar |
Appellant
And
| Ms Tessalar |
Respondent
REASONS FOR JUDGMENT
An application in an appeal was filed on 25 February 2010 where the husband, Mr Tessalar, seeks a further extension of time to enable him to file a notice of appeal.
The background to the matter is that orders by way of property settlement and children’s orders were made on 5 November 2009 in the Federal Magistrates Court in Darwin. Mr Tessalar did not file a notice of appeal within the time as prescribed by the Family Law Rules 2004. He made an application for leave to file a notice of appeal, which resulted in Warnick J making an order on 29 January 2010 providing an extension of time until 26 February 2010.
Mr Tessalar failed to file a notice of appeal within that time. He explains this in his affidavit and in particular by reference to his commitments to the Australian Army.
It seems that there is an entirely reasonable explanation for the failure of the husband to file a notice of appeal within time. Although it has been made quite clear by the solicitor who appears for the wife, not unreasonably, that, although they are not opposing this application for leave for a short further extension of time, they most certainly will in the future. Their attitude is entirely understandable.
As I have mentioned, it does seem that there has been an explanation for the delay. It is almost impossible for me, in the absence of even a draft notice of appeal to assess the likely merits or prospects of success of the appeal. However, the judgment does involve some very serious issues, no doubt, for both of the parties.
I intend to allow a further extension for the husband to file a notice of appeal to 4:00pm on 30 April 2010.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May.
Associate:
Date: 9 April 2010
0
0
2