Tessalar and Tessalar

[2010] FamCAFC 16

FAMILY COURT OF AUSTRALIA

TESSALAR & TESSALAR [2010] FamCAFC 16

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Application for extension of time to file Notice of Appeal – Orders sought to be appealed involve interstate relocation – Complication in transcription service meant written reasons for judgment were delayed – Extension of time allowed

APPLICANT: Mr TESSALAR

RESPONDENT: Ms TESSALAR

APPEAL NUMBER: NA 88 of 2009

FILE NUMBER: DNC 265 of 2009

DATE DELIVERED: 29 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 29 January 2010

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 5 November 2009

LOWER COURT MNC: [2009] FMCAfam 1370

REPRESENTATION

APPLICANT: Applicant appeared in person

ADVOCATE FOR THE RESPONDENT: Ms Elliott

SOLICITOR FOR THE RESPONDENT: Northern Territory Legal Aid Commission

Orders

1. That the time within which the father may file a Notice of Appeal against the orders of Federal Magistrate Terry made on 5 November 2009 be extended to 4.00pm on Friday 26 February 2010.

2. That the respondent’s costs of and incidental to the application for an extension of time within which to appeal be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Tessalar & Tessalar 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 BRISBANE

APPEAL NUMBER: NA88 of 2009
FILE NUMBER:  DNC 265 of 2009

Mr TESSALAR

Applicant

and

Ms TESSALAR

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This matter was heard and determined on 4 and 5 November 2009, including the delivery of ex tempore reasons for judgment.  It relates to parenting orders and in particular the relocation of the mother and the parties’ five children from the Northern Territory to New South Wales.  I accept from the material relied upon by the father that he immediately wished to consider an appeal.

2. However, the reasons for judgment were not available because of a failure of the transcription service or at least at some stage in the transcription process or recording process.  Shortly after the period within which to file an appeal expired, this application was filed.  It was filed together with a draft notice of appeal prior to the publication of reasons reconstructed from the federal magistrate’s notes.  In my view, that history alone persuades me that the justice of the case lies with an extension of time within which to appeal.

3. The notice of appeal is not helpful because the grounds are too broad but, as I said, it was filed under the very significant constraint that the reasons were not published at that stage.  I have examined the reasons of the federal magistrate.  The case carried with it the traditional complexity of the issue of relocation.

4. An added complexity related to the relationship of the oldest child with the father and mother, which seemed to introduce a complication which went beyond perhaps that which arose in relation to the other children.  It is the sort of matter in which very often the scrutiny of an appellate court is justified.

5. That the time within which the father may file a notice of appeal against the orders of Terry FM made 5 November 2009, be extended to 4 pm Friday, 26 February 2010.

6. I reserve the respondent’s costs of and incidental to the application for an extension of time.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate: 

Date:  12 February 2010