Yelner and Yelner

[2012] FamCAFC 98

FAMILY COURT OF AUSTRALIA

YELNER & YELNER [2012] FamCAFC 98

FAMILY LAW – APPEAL – Application to extend time to appeal – Where the six weeks delay was not insignificant – Where the delay was attributable to the legal representatives of the mother, not the mother herself – Where the proposed grounds of appeal raise serious issues, which if established may lead to the appeal being allowed – Where the prejudice to the father caused by the delay could be minimised by an order for costs – Application allowed and costs reserved.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Magistrates Court Rules 2001 (Cth), rule 16.05

Clivery & Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479

APPELLANT: Ms Yelner

RESPONDENT: Ms Yelner

FILE NUMBER: DNC 159 of 2011

APPEAL NUMBER: NA 46 of 2012

DATE DELIVERED: 10 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 10 July 2012

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 22 March 2012

LOWER COURT MNC: [2012] FMCAfam 259

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Lyons

SOLICITOR FOR THE APPELLANT: Northern Territory Legal Aid Commission

SOLICITOR FOR THE RESPONDENT: Withnalls Lawyers

Orders

1. The time for the appellant mother to file a Notice of Appeal out of time against the orders of Federal Magistrate Turner made 22 March 2012 be extended to

   
   

   17 July 2012.

2. The costs of the respondent father be reserved to the Full Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yelner & Yelner 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 46 of 2012
File Number: DNC 159 of 2011

Ms Yelner

Appellant

And

Mr Yelner

Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed 31 May 2012, the mother seeks an extension of time in which to file a notice of appeal against orders made by Federal Magistrate Turner on 22 March 2012. Those orders concerned parenting arrangements for the parties’ son, born September 2006.

2. By her draft notice of appeal, the mother seeks to appeal only the orders which relate to her proposed relocation from Darwin to Cairns with the child, and the time the child is to spend with the father. The orders from which she appeals provide:

   (5)That the child not be permitted to relocate from the Darwin area without the prior written approval of both parties.

   (6)That the child live with the mother in Darwin.

   (7)That the father is to spend time and communicate with the child as follows:-

   (a)In each fortnight period:-

   (i) in the first week from after school/day-care Friday until before school/day-care Tuesday; and

   (ii) in the second week from after school/day-care Monday until before school/day-care Tuesday.

   (b)By telephone each Saturday and Tuesday evening between 6.00pm to 6.30pm with:-

   (i)       The father to instigate the…