Cannon & Cannon - [2023] FedCFamC1A 39

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cannon & Cannon [2023] FedCFamC1A 39

Appeal from: Order dated 6 September 2022

Appeal number(s): NAA 256 of 2022

File number(s): BRC 17729 of 2020

Judgment of: ALDRIDGE J

Date of judgment: 31 March 2023

Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Review of appeal judicial registrar’s decision refusing to grant an extension of time to appeal against parenting orders – Lack of any prospects of success on the appeal – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 65D, 79A

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Melville and Melville (2020) FLC 93-985; [2020] FamCAFC 231

Robinson and Willis (1982) FLC 91-215

Number of paragraphs: 21

Date of hearing: 10 February 2023

Place: Sydney

The Applicant: Self-represented litigant

Counsel for the First Respondent: Ms Murphy

Solicitor for the First Respondent: Cherry Family Law

The Second Respondent: Did not participate

Solicitor for the Independent Children’s Lawyer: Bridges Family Law
ORDERS

NAA 256 of 2022
BRC 17729 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS CANNON

Applicant

AND:
MR CANNON

First Respondent

MR GLYNN

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

ALDRIDGE J

DATE OF ORDER:

31 march 2023

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 30 December 2022 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cannon & Cannon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION

On 25 November 2022, Ms Cannon (“the applicant”) filed an Application in an Appeal seeking an extension of time to appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 6 September 2022 with the consent of the parties. The application was dismissed by an appeal judicial registrar on 21 December 2022.
On 30 December 2022, the applicant filed an Application in an Appeal seeking a review of the appeal judicial registrar’s decision. Such a review is a hearing de novo and the discretion to extend or not is to be exercised afresh.
The application replied upon two affidavits sworn by her 25 November 2022 and 30 December 2022.
The principles to be applied on such an application were stated by McHugh…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC1A 39
Decision Date

CaseChat Overview and Summary

The appeal in Cannon & Cannon was brought by Ms Cannon, who sought an extension of time to appeal against certain parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2). The appeal was dismissed by an appeal judicial registrar, and Ms Cannon subsequently sought a review of that decision. The court had to determine whether there were any grounds to grant an extension of time for Ms Cannon to appeal the parenting orders.

The primary issue before the court was whether the applicant had demonstrated reasonable grounds for the extension of time to appeal the parenting orders. The court considered the principles governing such applications, including the need to show that strict compliance with the rules would result in an injustice and to assess the prospects of success on the appeal. The applicant, who was self-represented, needed to provide a convincing explanation for the delay in filing the application and demonstrate reasonable grounds for the appeal. The court also had to consider the nature of the litigation and the consequences for the parties if the application were to be granted.

The court held that Ms Cannon had not provided a convincing explanation for the delay in filing the application for an extension of time. Although she claimed to have been unaware of the time limit for filing a Notice of Appeal, this was not supported by any evidence. The applicant also did not seek any legal advice about an appeal and failed to explain when she became aware of the time limit. The court noted that being an unrepresented litigant did not exempt the applicant from the constraints of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The proposed grounds of appeal were largely particulars of the first ground, which related to the applicant's claim that her consent to the consent orders was given under duress from her legal representative. However, the court found that such a claim did not necessarily impugn the orders and would likely not succeed on appeal.

In light of these findings, the court was not satisfied that there should be an extension of time for Ms Cannon to appeal the parenting orders. The application for a review of the registrar's decision was dismissed, and the court upheld the original decision not to grant an extension of time.

The court dismissed the application for a review of the appeal judicial registrar's decision, upholding the original decision not to grant an extension of time for Ms Cannon to appeal the parenting orders.

Orders