FAMILY COURT OF AUSTRALIA
| WELLINGTON & CHILD SUPPORT REGISTRAR | [2012] FamCAFC 34 |
| FAMILY LAW – APPEAL – Review of regional appeal Registrar’s order granting an extension of time for filing of documents – Where on the due date for filing the respondent sought an extension of time to file and serve a summary of argument – Where the respondent did not seek an extension by means of a formal application but rather by facsimile correspondence – Where the appellant applicant objected to his consent not having been sought by the respondent, to the extension of time itself and to the Registrar hearing the matter – Where the hearing occurred by telephone – Where the documents were filed but not served in time with the Registrar’s order extending the time – Where the documents were served by email on the due date and by post one day later – Where it could not be said the appellant applicant had not been served – Service deemed effective. FAMILY LAW – APPEAL – Hearing de novo – Where the respondent had not been served with a sealed copy of the appellant’s summary of argument – Where a Notice of Constitutional Matter had been filed – Where there was no prejudice to the appellant in granting the extension of time as the hearing of the appeal had not yet been listed – Where the extension of time should have been granted – application dismissed. FAMILY LAW – COSTS – There be no order as to costs. | |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Wellington |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | BRC | 4659 | of | 2008 |
| APPEAL NUMBER: | NA | 36 | of | 2011 |
| DATE DELIVERED: | 8 March 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 7 March 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 April 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 312 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Brasch |
| SOLICITOR FOR THE RESPONDENT: | Australian Government Solicitor |
Orders
The application filed 24 January 2012 is dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wellington & CSR has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 36 of 2011
File Number: BRC 4659 of 2008
| Mr Wellington |
Appellant
And
| Child Support Registrar |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the appellant in these appeal proceedings filed on
24 January 2012 seeking review of the regional appeal Registrar’s orders made on 16 January 2012.
The orders of the regional appeal Registrar were as follows:
1) That the time for the Respondent to file and serve the Summary of Argument and List of Authorities be extended until 23 January 2012.
2) That the Appellant file and serve an affidavit…
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- Case
- [2012] FamCAFC 34
- Decision Date
CaseChat Overview and Summary
The legal issues that the Full Court was required to decide included whether the extension of time was appropriate, and whether the appellant had been prejudiced by the extension. The Full Court considered the procedural orders made by the Registrar, and the emails exchanged between the parties. The Full Court also considered the fact that the appeal had not yet been listed for hearing, and that the extension would not delay the appeal. The Full Court found that the extension should have been granted, as there was no undue prejudice to the appellant.
The Full Court's reasoning was based on the fact that the appeal had not yet been listed for hearing, and that the extension would not delay the appeal. The Full Court also found that the appellant had not been prejudiced by the extension, as the documents were served by email on the due date and by post one day later. The Full Court noted that it could not be said that the appellant had not been served, and that service was deemed effective. The Full Court also found that there was no prejudice to the appellant in granting the extension of time, as the hearing of the appeal had not yet been listed.
The final orders made by the Full Court were that the application filed 24 January 2012 was dismissed, and that there be no order as to costs. The Full Court found that the extension of time should have been granted, and that the appeal was dismissed. The Full Court did not make any order as to costs.
Orders
Orders of the court
1.
The application filed 24 January 2012 is dismissed.
2.
There be no order as to costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.