Estella and Morena

[2014] FamCAFC 67

FAMILY COURT OF AUSTRALIA

ESTELLA & MORENA [2014] FamCAFC 67

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father seeks an adjournment of his application for an extension of time to file a notice of appeal – Where the father, previously a self-represented litigant, has retained a solicitor and seeks an adjournment to apply for a grant of legal aid – Where the draft notice of appeal prepared by the father does not provide cogent grounds of appeal – Where the father should have the opportunity to apply for legal aid in circumstances where the father  is unable to appeal against final parenting orders without leave – Application adjourned.  

House v The King (1936) 55 CLR 499

APPLICANT: Mr Estella

RESPONDENT: Ms Morena

INDEPENDENT CHILDREN’S LAWYER: Ms Awyzio

FILE NUMBER: BRC 10237 of 2007

APPEAL NUMBER: NA 9 of 2014

DATE DELIVERED: 23 April 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 23 April 2014

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 11 December 2013

LOWER COURT MNC: [2013] FamCA 1045

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Mr Donnelly of Hannay Lawyers

COUNSEL FOR THE RESPONDENT: Ms Walker-Munro

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Awyzio of DA Family Lawyers

Orders

1. The father’s application for leave to file a notice of appeal out of time be adjourned until 10:00 am on 2 June 2014. 

2. The costs of the respondent and the Independent Children’s Lawyer be reserved until the hearing on 2 June 2014. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Estella & Morena 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 9 of 2014
File Number: BRC 10237 of 2007

Mr Estella

Applicant

And

Ms Morena

Respondent

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE

1. In an application filed 28 February 2014 Mr Estella (“the father”) asks for an extension of time to file a notice of appeal from orders made by Bell J on 11 December 2013.

2. His application is opposed by the mother and the Independent Children’s Lawyer. This morning Mr Donnelly, a solicitor, appeared for the applicant having only been instructed yesterday. He informs me that he will attend to filing the necessary notice of address for service today.

3. An application was made by Mr Donnelly for an adjournment of the father’s application so that the father may apply for a grant of legal aid in relation to these proceedings. It is impossible for me to tell whether that application will be successful. Perhaps the father will pass the test for financial circumstances, but whether his application will be looked upon favourably in relation to merit is unknown.  

4. The draft notice of appeal contains 11 grounds of appeal, none of which could be described as providing a coherent reason for an appeal within the terms of House v The King (1936) 55 CLR 499.

5. Understandably, Ms Walker-Munroe, who appears as counsel for the respondent, and Ms Awyzio, who appears unfunded as the Independent Children’s Lawyer, resist the application for an adjournment because of the waste of time involved, and most importantly, the impact on the public purse.

6. That position is entirely understandable. However, as the father would be unable to appeal final orders in relation to the children of the parties without leave, an opportunity should be given to him to seek a grant of legal aid for these proceedings.

7. With some regret, I will adjourn the application of the father until 2 June 2014. I will also adjourn the issue of costs until that time.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered ex tempore on 23 April 2014.

Associate: 

Date:  23 April 2014