Abraham v Attorney-General's Department

[2003] FCA 203

FEDERAL COURT OF AUSTRALIA

Abraham v Attorney-General’s Department

[2003] FCA 203

JEMAS ABRAHAM v ATTORNEY-GENERAL’S DEPARTMENT FAMILY LAW AND LEGAL ASSISTANCE DIVISION

NO S 247 OF 2002

SELWAY J
ADELAIDE
7 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 247 OF 2002

BETWEEN:	JEMAS ABRAHAM APPLICANT
AND:	ATTORNEY-GENERAL’S DEPARTMENT FAMILY LAW AND LEGAL ASSISTANCE DIVISION RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	7 MARCH 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

The application for an extension of time is refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 247 OF 2002

BETWEEN:	JEMAS ABRAHAM APPLICANT
AND:	ATTORNERY-GENERAL’S DEPARTMENT FAMILY LAW AND LEGAL ASSISTANCE DIVISION RESPONDENT

JUDGE:	SELWAY J
DATE:	7 MARCH 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The background to this matter appears to be as follows:

   (a)the applicant’s daughter was illegally removed from Australia and is now believed to be in Japan. The applicant instituted legal proceedings against the Commonwealth relating to its failure to prevent that removal. Those proceedings were settled in the applicant’s favour some time ago.

   (b)In addition, the Commonwealth, through the Attorney-General, may provide legal aid to those whose children have been removed, apparently for the purpose of enabling the parents to seek the return of the child. The aid is provided under the Overseas Custody (Child Removal) Cases Scheme.

   (c)Some initial funding was provided in 1998. In 2001, the applicant applied to the Department seeking $29,000 initially, which increased in August 2002 to a request for $52,000. The applicant sought that amount to enable him to institute and finalise proceedings in Japan. Apparently the amount included some amount for the applicant himself to fly to Japan and at least give evidence and maybe to instruct lawyers.

   (d)Although there were some preliminary skirmishes, including proceedings in this Court, the respondent did not reject the application completely. Instead, on 1 November 2002, it advised that it would make a grant of $13,000 for certain purposes, particularly the commencement of proceedings in Japan. The grant was subject to various conditions. As I understand it, that grant does not preclude further grants, even perhaps up to the full amount of $52,000 sought, but that would depend upon circumstances. It would seem, from my understanding, that the initial grant of $13,000 did not include any amount to enable the applicant himself to travel to Japan.

   (e)Following that determination, the applicant instituted new proceedings in this court seeking judicial review. Those proceedings initially came before von Doussa J. The proceedings before him are explained in the affidavit of Nerida Ware, filed herein on 14 February 2003. The proceedings were ultimately dismissed by consent. That order was made on 18 December 2002.

2. Any appeal was required to be instituted by 15 January 2003, after due allowance for the court vacation and so forth. In the result, the applicant was only one day late in seeking to institute his appeal. On 16 January 2003, the applicant sought an extension of time under O 53, r 7 of the Federal Court Rules. In favour of an extension is the fact that the delay was short, and there appears to have been no prejudice. Further, the applicant is unrepresented and some allowance must be made for that.

3. The applicant has informed me that his reason for delay was that he was trying to resolve the matter without going to court by discussing it with those in Canberra. This still does not explain why the proceedings were not instituted by 15 January 2003, though I give that very little weight, given that he is unrepresented.

4. On the other hand, the prospects of success on the appeal are, in my view, nil. On balance, I have come to the view that there is no benefit to anyone in this matter continuing. Consequently I order, firstly, the application for an extension of time to be refused. The respondent not seeking costs, I make no order as to costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway .

Associate:

Dated:             14 March 2003

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr D Williams
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 March 2003
Date of Judgment:	7 March 2003