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Family Law

Out of time and out of luck – Family Law deadlines are important!

By October 27, 2015No Comments

Deadlines in family law cases need to be treated seriously. Sometimes they are very long (commencing a case 2 years after the end of a de facto relationship), sometimes they are very short (28 days to lodge an appeal after an order has been made). Consider the following case, in which an appeal was not allowed due to the father’s late lodgement, disregarding the Family Law deadlines:

A father has had his application to reinstate an appeal relating to parenting orders dismissed due to his ‘tardiness’.  He had argued that a delay in serving his appeal books was due to his former solicitors not releasing his file to him after a dispute over costs. That dispute was eventually resolved, but by then his appeal had lapsed, and the mother would not agree to it being reinstated. After allowing another nine weeks to pass, the father filed his application for reinstatement of the appeal.

The court accepted that the father would have found preparing for his appeal difficult without his former lawyers’ file, however the judge pointed out that the father could have made copies of relevant documents from the court file, and that the father had made no explanation for not doing this. Although the father had retained new solicitors, it is unclear from the judgment why they did not assist the father in obtaining copies of his file, nor why they enabled him to allow nine weeks to pass before filing his application.

Also working against the father was the fact that he provided no explanation to the court for the nine week delay in filing his application to reinstate the appeal.

The takeaway from this case is how important it is to be aware of the time limitations for all aspects of your case. If you come to us having previously retained another solicitor, and find you are having difficulties obtaining your file for whatever reason, we will arrange obtaining copies from the court files for you. We will certainly not allow your matter to lapse out of time. Alliance Family Law has procedures in place to get a handle on files immediately, whether it’s getting solicitor access to the electronic court portal, physically attending court to read the court file, or making arrangements to obtain your file from your former lawyers, we take all appropriate steps to ensure you don’t miss out. We can also take steps such as ordering a transcript of your oral hearing, to read it and try to learn whether you have prospects of winning your appeal, before written reasons have even been formally sent out.

If you find that your case will be subject to delays that may have a reasonable explanation (such as factors beyond your control), we will work with you to ensure that the court is made fully aware of such reasons. We are experienced in drafting appropriate affidavits explaining delay and also advising on what warrants an inexcusable or unreasonable delay compared to what may be adequately explained. We aim to give you the best chance of success despite any delay.

The court does have discretion to allow extensions of time in some cases for the sole purpose of enabling the court to do justice—in other words, if strict compliance with the rules will cause an injustice to occur. However, this does not apply if a case is regarded as ‘doomed to fail’. Unfortunately for the father in the above case, his case was ultimately regarded as lacking merit.  It was found that disallowing the appeal did not represent an injustice being carried out, and the application to reinstate the appeal was dismissed with costs.

When considering lodging an appeal, whether on time or otherwise, our experienced lawyers can talk to you about the process, the costs and your likely prospects of success before you spend any more money. “Winning” on an appeal doesn’t mean the other side pays your costs. You can find yourself spending $20,000 on an appeal, to find the Full Court sets aside the orders made due to error by your first judge, in which case you may only receive about $4,000 from the Attorney-General’s Department.

If issues relating to an appeal are relevant to your matter, please contact our Principal Solicitor Cristina Huesch or one of our experienced solicitors here at Alliance Family Law namely Sharla Stevens or Angela Li on (02) 6223 2400 to discuss your case as soon as possible.

Case referred to: Delamarre & Asprey (2015) FLC. http://www.austlii.edu.au/au/cases/cth/FamCAFC/2015/159.html

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