Family Court of Australia

EDELMAN & ZIU	[2010] FamCAFC 74	

FAMILY LAW - APPEAL – Application for extension of time to file notice of appeal – Application only a few days out of time – Decision of the Federal Magistrate a departure from the arrangements for the child before the trial – Proper arguments to be raised on appeal – Limited prejudice to the respondent mother and Independent Children’s Lawyer – Application granted.	

Family Law Act 1975 (Cth)	

Gallo v Dawson (1990) 93 ALR 479	

Appellant:	Mr Edelman	

Respondent:	Ms Ziu	

Independent children’s lawyer:	Legal Aid Commission New South Wales	

File Number:	LEC	1		of	2009	

Appeal Number:	NA	13		of	2010	

Date Delivered:	25 March 2010	

Place Delivered:	Brisbane	

Place Heard:	Brisbane	

Judgment of:	May J	

Hearing date:	25 March 2010	

Lower court jurisdiction:	Federal Magistrates Court	

lower court judgment date:	22 December 2009	

LOWER COURT MNC:	[2009] FMCAfam 1227	

REPRESENTATION

COUNSEL FOR THE Appellant:	Mr Laws	

SOLICITOR FOR THE Appellant:	McCarthy Durie Ryan Neil	

SOLICITOR FOR THE RESPONDENT:	Ms Fletcher
G J Legal	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	In person	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Aid Commission of  New South Wales	

Orders
(1)	The time within which the father may file a Notice of Appeal against the orders of Federal Magistrate Slack made on 22 December 2009 be extended to on or before 4:00pm on 9 April 2010.
(2)	The respondents’ and independent children’s lawyer’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 Edelman & Ziu 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: NA 13 of 2010
File Number:  LEC 1 of 2009

Mr Edelman	
Appellant

And

Ms Ziu	
Respondent

EX TEMPORE
REASONS FOR JUDGMENT
1.	In an application filed on 27 January 2010 the father seeks an extension of time to file a notice of appeal in relation to an order made on 22 December 2009 by Federal Magistrate Slack. It is obvious that the application is only a few days out of time. The judgment was received just before Christmas. 
2.	In the affidavit in support of the application, also filed on 27 January 2010, the applicant explains the reason for the delay in attempting to file the notice of appeal. First, he says that he is in poor financial circumstances. Secondly, that he had legal aid for the trial, but that since then he has been unable to find a lawyer to represent him. Apparently, he does now have lawyers.
3.	There is no direct reference in the affidavit, perhaps unsurprisingly, to the second matter which I must consider. That is, the question of whether the appeal has any merits.
4.	Most helpfully, Mr Laws who appears for the applicant, has provided me with written submissions which correctly refer to the principles that I must consider, including the well known decision of Gallo v Dawson (1990) 93 ALR 479. 
5.	As to merits, Mr Laws has submitted in addition orally that there are some matters in relation to the decision about this child, A, born in February 2004, that raise proper grounds for appeal. For example, that his Honour wrongly approached the matter as though the mother was the primary caregiver; that his Honour did not pay attention sufficiently to what was the arrangement at the time of hearing for the child and that in doing so, his Honour was almost dismissive of the stable environment in which the child had been raised. 
6.	It is intended in the notice of appeal to ask that there be a return to equal shared parenting and time in relation to this child, and that the child remain living in B, where apparently he had previously been living.
7.	The orders made by his Honour were quite a departure, it seems, from the situation at the time of trial. It was ordered that the child spend time with the father during the school term from 5:00pm Friday to 4:00pm Sunday during two out of three weekends and for half of each school holidays. 
8.	It is intended that there also be an appeal in relation to the property settlement matters. That, to some extent, is dependent on a change of orders in relation to the circumstances of the child. Mr Laws tells me that he will pay attention to the drafting of the notice of appeal and it will be carefully drafted.
9.	In the circumstances, it seems that there is very little prejudice to the respondents, being the respondent wife and the Independent Children’s Lawyer. In particular, the application was filed only a few days out of time. There does seem to be, at least on the face of it, some proper arguments to be raised before the Full Court.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May. 

Associate: 

Date:  9 April 2010