Delay in providing reasons for judgment
12 May 2008
In Besser and McCoy (2008) FLC93-361 the father appealed against interlocutory parenting orders made by a federal magistrate, the jurisdiction on appeal being exercised by a single judge.
The federal magistrate had dismissed the father's application for a recovery order and ordered that the child live with the mother and spend substantial and significant time with the father. The federal magistrate published his reasons for judgment some 35 days after making the orders.
The practical effect of the delay was to preclude the father from filing an appeal within time with knowledge of the prospects of success and from successfully seeking a stay.
The father's submissions included that the federal magistrate erred in not providing the reasons at the time of the making of the order and that the delay in publishing the reasons significantly prejudiced him and gave rise to errors.
On appeal, Coleman J found that the provisions of the Federal Magistrates Act 1999 (Cth) and the Federal Magistrates Court Rules 2001 (Cth) did not provide a mandate for the publication of reasons for judgment at a later date than the making of orders.
However, no evidence before the court established that the federal magistrate was required to publish his Reasons for Judgment at the time he made the orders.
The common law position was that set out in Palmer & Others v Clarke & Others (1989) 19 NSWLR 158, summarised by Kirby P:
"Reasons and judgments of judges of courts such as the District Court should either be stated in open court in the presence of the parties or, where in writing, should be provided very soon after the orders and judgments are pronounced" (at 173).
In the circumstances of this case, the delay in publishing the reasons significantly prejudiced the father's rights and the appeal was allowed.
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Delay in providing reasons for judgment. Appeal allowed
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