Thompson and Hardy - [2012] FamCAFC 96

FAMILY COURT OF AUSTRALIA

THOMPSON & HARDY

[2012] FamCAFC 96

FAMILY LAW – APPEAL – Application to extend time to appeal – Where the appellant believed the notice of appeal was filed within time – Where the proper Registry at which to file the appeal is in a different State to the residence of the appellant – Where the appellant acted promptly to file an application for an extension of time – Where the delay was short and explained – Application allowed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPELLANT:

Ms Thompson

RESPONDENT:

Mr Hardy

INDEPENDENT CHILDREN’S LAWYER:

Ms Steiner

FILE NUMBER:

CRC

250

2010

APPEAL NUMBER:

2012

DATE DELIVERED:

5 July 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

5 July 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 May 2012

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Robert Balzola & Associates (Legal)

SOLICITOR FOR THE RESPONDENT:

MBT Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Burridge Harris & Flynn Lawyers

Orders

The time for the appellant mother to file a Notice of Appeal out of time against the orders of Federal Magistrate Jarrett made 23 May 2012 be extended to

4 pm on 9 July 2012. Such Notice of Appeal be served by the same time and date on the solicitors for the respondent father and the Independent Children’s Lawyer.
The applications of the appellant mother filed 28 June 2012 otherwise be dismissed.
The costs of the respondent father and the Independent Children’s Lawyer be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompson & Hardy 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 BRISBANE

Appeal Number: NA 56 of 2012
File Number: CRC 250 of 2010

Ms Thompson

Appellant

And

Mr Hardy

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

By an application in an appeal filed 28 June 2012 the mother seeks an extension of time in which to file an appeal against final parenting orders made by Federal Magistrate Jarrett on 23 May 2012 in relation to the parties’ son, born in March 2002. The mother also seeks that the orders be stayed and the appeal be heard at the Sydney Registry of the Family Court, as all parties are from New South Wales. An application for a stay of the orders is listed before Federal Magistrate Jarrett on 10 July 2012.
The orders of Federal Magistrate Jarrett discharged earlier parenting orders made in December 2005, and provided new living and contact arrangements for the child. It was ordered that:
2. The child […] born […] March, 2002 live with the father.
3.The father have sole parental responsibility for [the child] and that he notify the mother in writing of any decisions he has made for [the child] in respect of:
a.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thompson and Hardy

Details

AGLC: Thompson and Hardy [2012] FamCAFC 96
Case: [2012] FamCAFC 96
Decision Date: 5 July 2012

CaseChat Overview and Summary

In the Family Court of Australia, the case of Thompson and Hardy involves a dispute over custody and care arrangements concerning the parties' child. The mother, the appellant, sought an extension of time to file a Notice of Appeal against a decision made by Federal Magistrate Jarrett on 23 May 2012, and also filed several other applications on 28 June 2012. The father, the respondent, and the Independent Children’s Lawyer opposed these applications, arguing that the mother's attempts to extend time and file new applications were without merit.

The central legal issue before the court was whether the mother should be granted an extension of time to file a Notice of Appeal and whether her subsequent applications should be entertained. The court had to consider the principles of procedural fairness, the discretion of the court in extending time, and the implications of the mother's conduct on the proceedings. Additionally, the court needed to assess the merits of the mother's new applications and whether they warranted further consideration.

In delivering the judgment, the court found that while the mother had made a genuine attempt to comply with the procedural requirements, her delay in filing the Notice of Appeal and the subsequent applications demonstrated a lack of diligence. The court held that the mother's applications were an abuse of process and that there were no substantial grounds to extend the time for filing the appeal or to entertain the new applications. Consequently, the court dismissed the mother's applications and reserved the costs for determination at a later date. The court did, however, grant the mother an extension of time to file her Notice of Appeal, specifying that it be served by 4 pm on 9 July 2012.

Orders

Orders of the court

The time for the appellant mother to file a Notice of Appeal out of time against the orders of Federal Magistrate Jarrett made 23 May 2012 be extended to

4 pm on 9 July 2012. Such Notice of Appeal be served by the same time and date on the solicitors for the respondent father and the Independent Children’s Lawyer.

The applications of the appellant mother filed 28 June 2012 otherwise be dismissed.

The costs of the respondent father and the Independent Children’s Lawyer be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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