TIME & BAILEY - [2010] FamCAFC 126

FAMILY COURT OF AUSTRALIA

TIME & BAILEY

[2010] FamCAFC 126

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for an extension of time to file appeal books – where the mother has applied for legal aid but does not know the outcome of her application – extension of time granted to file the appeal books excluding the transcript – order for the mother to file an Application seeking that the transcript be provided by the Court.

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – oral application by the respondent seeking an adjournment to make further submissions regarding the merits of the appeal – application dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Time

RESPONDENT:

Mr Bailey

FILE NUMBER:

HBC

967

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

27 May 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

27 May 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 October 2009

LOWER COURT MNC:

[2009] FamCA 1009

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Leary

SOLICITOR FOR THE RESPONDENT:

Abetz Curtis Lawyers

Orders

That the oral application made by the respondent for an adjournment be dismissed.
That paragraph 2 of the orders of Registrar Marrone made on 26 February 2010 be varied such that the appeal books for this appeal initially comprise all documents set out in that paragraph save and except for the transcript.
That the time for the preparation, filing and serving of the appeal books in accordance with paragraph 3 of the orders of Registrar Marrone made on 26 February 2010 be extended to close of business on 24 June 2010.
That the mother file and serve on or before close of business on 24 June 2010 an application seeking an order that the transcript necessary for the purpose of this appeal and as identified in paragraph 2 of the orders of Registrar Marrone made on 26 February 2010 be provided by the Family Court of Australia.
That the costs of the respondent of and incidental to the Application in an Appeal filed on 16 April 2010 be reserved.
That the Application in an Appeal filed on 16 April 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Time & Bailey 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 ADELAIDE

Appeal Number: SA 96 of 2009
File Number: HBC 967 of 2008

Ms Time

Appellant

And

Mr Bailey

Respondent

EX TEMPORE REASONS

This matter is before me again having been adjourned from 6 May 2010. The application that is before me is an application filed by the mother on 16 April 2010 seeking an extension of time of three months to file the appeal books. The need for that application arose from the order made on 26 February 2010 by Registrar Marrone where the registrar ordered that the mother prepare the appeal books and file them by 16 April 2010. The difficulty that the mother has had and which has prompted the application is that she has applied for Legal Aid and she still does not know the result of that application. Part of that application is for legal aid to pay for the cost of the transcript. However, the application is opposed.
I should mention, just at this point, that the appeal is against orders made by Benjamin J on 28 October 2009 and the Notice of Appeal was lodged, obviously within time, on 24 November 2009. On 6 May 2010 I was not satisfied that the applicant, Ms Time, had been diligent in pursuing this matter since at least the time of the filing of Notice of Appeal. Specifically she had not diligently pursued obtaining legal aid.
Be that as it may, what I allowed Ms Time to do, because I was unclear as to the position of Legal Aid and specifically as to whether Legal Aid would even give consideration to providing the transcript, I adjourned the matter to today and ordered that in the period of the adjournment Ms Time obtain a letter or email from the Legal Aid office as to whether the Legal Aid office would fund the cost of the transcript and also providing information as to the current status of her application for Legal Aid and then forward that letter to the other side and to my associate.
Now, what Ms Time has done is she has provided two letters, one dated 25 May 2010, which annexes a letter that she sent to Legal Aid on 21 May 2010 and then a letter from Ms Time dated 26 May 2010, to which is annexed a letter of that same date, also to Legal Aid. As I pointed out to Ms Time at the start of this hearing, that is not compliance with my orders and it concerns me as to the understanding and appreciation of Ms Time as to what is required. I could not have spelt it out any more clearly, I thought, on 6 May 2010 as to what was required, yet here we are again, three weeks down the track, and still we have nothing from Legal Aid that tells the court or the other side, for that matter, what the position is.
It is an extraordinary and unsatisfactory set of circumstances and no wonder, in those circumstances and given the history of this matter that Ms Leary’s client has persisted with his opposition to granting this extension of time. I have raised though, with Ms Time, that an option that I would consider within a reasonable time frame is this. Ms Time tells me that she has got all of the documents available and ready to go that would be in the appeal book, apart from the transcript. Thus, I would consider extending the time for Ms Time to file the appeal books but not including the transcripts and for her then to make an application for the Family Court to provide the transcript.
Ms Time has indicated that she would seek to pursue such an application. Ms Leary, understandably, still persists with her client’s objection to an extension of time, even in those circumstances.
I note that the orders that are the subject of the appeal were made on 28 October 2009. I would be extremely concerned, in terms of allowing any further leeway to Ms Time, if those orders, for example, had been stayed, but I am told by Ms Leary that they are in operation and being implemented. Thus to that extent, the respondent is not prejudiced and nor is the child, the subject of the proceedings.
The prejudice to the respondent is the prospect of having an appeal proceed and having to deal with that. They are very real practical prejudices to the respondent in this case, and which I need to take seriously into account because that is the other side of the coin in terms of balancing, as I must, the interests of justice in dealing with an application for an extension of time. There is clear authority that the ultimate or overarching consideration with any application for extension of time is the interests of justice.
In addition, there are principles which govern what I need to take into account in determining an application for an extension of time, including, obviously, any explanation for the delay, and the merits of the application if it is allowed to proceed, and Ms Leary has addressed me on that. Perhaps though I should pause there. I have cut Ms Leary short in relation to that topic. Ms Leary very much wants to make submissions as to suggest that there is no merit in the appeal. Prima facie, I have indicated that, taking into account that Ms Time is acting in person, the grounds of appeal that are set out are understandable and can be followed. They seem in a very general way to attack the weight that the learned trial judge attached to various matters, including evidence from certain witnesses. Ms Leary says that she is able to take me to the judgment and indicate where those grounds would necessarily fail. But as I say, at a prima facie level, the grounds of appeal appear to be appropriate in the sense of raising issues which might normally be raised on an appeal. In any event Ms Leary has, in effect, sought an adjournment of this hearing today to enable time to be set aside for Ms Leary to further develop her argument in relation to the lack of merit in the appeal. I will deal with that shortly.
Thus as I say, and to come back to it, although there are issues of delay and merit and the like, the overarching consideration is the interests of justice. I have indicated, and I confirm, that I am still not entirely satisfied that the applicant has been diligent in pursuing what needs to be done to prepare the appeal and comply with orders of this court. On the other hand, I am mindful that she is acting in person. She has appeared before me by telephone on two occasions. I am concerned about her understanding and appreciation of the appeal process and the legal process generally and I have to take that into account, but not the extent that it seriously prejudices the other party.
It seems to me that, in all the circumstances, it would be appropriate to give one last opportunity to Ms Time to get this appeal back on track, and so I am prepared to extend the time to allow her to file appeal books, minus the transcript. She has sought a period of four weeks. Looking at that in isolation, that is not an unreasonable time frame. What I have to take into account, though, is the history of this matter and it will involve, then, a further delay of four weeks. However, in the circumstances, I consider that four weeks would be an appropriate timeframe. Thus that is what I am proposing to do in relation to the application. However, as I have said, Ms Leary has, in effect, sought an adjournment to enable further submissions to be made in relation to the merit of the appeal.
I dismiss that application for an adjournment. That would entail further delay in itself and I cannot see the value of doing that given that in any hearing that I conduct on an extension of time application the opportunity to look at the merits of the appeal and the like is limited. Thus I do not consider that that is in the interests of either party, and more particularly the child, to delay this matter, separate to any delay that Ms Time has caused, by adjourning this application because I can say that an adjournment would entail an adjournment of several weeks. This is not a matter that I am able to come back to in the short term and that is why I set the hearing today. I have no availability in the next few weeks.
Finally I want to say as part of my reasons for judgment, that the orders made today are not to be taken as indicating that the transcript is unnecessary for the purposes of this appeal. The orders have been made purely in an attempt to get this appeal back on track and to enable the mother to obviously pursue an application for the Family Court to provide the transcript, but equally it will provide her with more time to pursue her application for Legal Aid.

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 27 May 2010.

Associate