Chranley & Smart - [2008] FamCAFC 174

FAMILY COURT OF AUSTRALIA

CHRANLEY & SMART

[2008] FamCAFC 174

FAMILY LAW - APPEAL – application seeking extension of time to appeal decision of Federal Magistrate – where applicant claims ill health prevented appeal within time – no adequate explanation for delay – no substantial issue to be raised on appeal – not necessary to grant extension of time to enable court to do justice between parties – application dismissed.

McMahon v McMahon ( (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392
Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Chranley

RESPONDENT:

Ms Smart

FILE NUMBER:

ADM

883

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

30 May 2008

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

30 May 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 January 2008

LOWER COURT MNC:

[2008] FMCAfam 37

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

That the Application in a Case filed by the father on 15 April 2008 be dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Chranley and Smart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 31 of 2008
File Number: ADM 883 of 2006

Mr Chranley

Applicant

And

Ms Smart

Respondent

EX TEMPORE REASONS

I have before me an Application in a case filed by the applicant on 15 April 2008 in which he seeks an extension of time, it says to file “applications” but it is perfectly clear that what he is seeking is an extension of time to file a Notice of Appeal.
The applicant is wanting to appeal against an order made by Federal Magistrate Brown on 30 January 2008, when the learned Federal Magistrate dismissed the application of the applicant filed on 18 December 2006 and the Amended Application filed on 7 February 2007.
To repeat the order was made on 30 January. As the applicant is aware, and as is the position, there is a 28-day time period in which to file a Notice of Appeal. He did not do so. Thus he was obliged to file this application that is now before me.
There are two affidavits that the applicant has filed in the same matter, ostensibly in support of his application. Both affidavits were filed on 15 April 2008. The primary affidavit is an affidavit where the applicant deposes that he has suffered from ill health over the past two months. Bearing in mind this was an affidavit that was sworn on 11 April 2008, the applicant is saying that he suffered from ill health over the two months prior to that, which would take it back to within a time frame of the 28 days after the order made by the Federal Magistrate.
The second affidavit says simply:
“I seek to rely on the affidavit filed on 11 April 2008 in all matters.”
The applicant has confirmed, though, that the affidavit in support of his application is the primary one that I have just referred to, where he in effect puts forward as his excuse and reason for not filing his notice of appeal within time that he suffered from ill health.
The application itself and the supporting affidavits were in the form of documents used in the Federal Magistrates Court. That is of no consequence though and I am not going to allow that to hold up concluding this matter. Ultimately those documents found their way to the correct Registry, namely, the Southern Regional Appeal Registry, where they were filed, and they have been acted upon, and the matter has been placed before me for hearing today.
The next matter I should mention by way of a preliminary point is that the applicant, as he is obliged to, has annexed to his application a draft Notice of Appeal. In that draft Notice of Appeal there are two grounds of appeal. One is that Federal Magistrate Brown failed to consider all the information in relation to the application and the second ground is, to use the applicant’s words, "Magistrate Brown denied me my civil liberties."
The orders sought in this draft Notice of Appeal are that the applicant seeks that the Amended Application filed on 7 February 2007 do stand. I take that to mean he wishes that application to proceed to a hearing in the Federal Magistrates Court.
When this matter was called on today, the applicant appeared. However, there was no appearance by or on behalf of the respondent. Fortuitously we have been able to contact the respondent and she has been available on a telephone. There is an issue about whether she has received documents or not. However, I am not concerned about that. She is now comfortable to have the matter heard. I have explained to her what it is about. I have read out to her the detail of the applicant’s application and the supporting affidavit, and she has now made submissions in opposition of the application. Thus there is no reason why the matter cannot proceed and be finalised by me, today.
The law in relation to applications for an extension of time to appeal is well settled. There have been a number of Full Court decisions of this court and also a number of High Court decisions, which are often referred to when these applications are being dealt with. For example, in this Court there are the cases of McMahon v McMahon (1976) FLC 90-038 and the case of Tormsen v Tormsen (1993) FLC 92-392. Then in the High Court there is the case of Gallo v Dawson (1990) 93 ALR 479.
The principles that can be gleaned from these cases are:
(a)there should be adequate reasons explaining the delay;
(b)there should be a substantial issue to be raised on the appeal;
(c)there should be neither hardship nor injustice to the respondent, which cannot be compensated by orders as to costs or otherwise; and
(d)the fundamental issue is whether the granting of an extension of time for leave to appeal out of time is necessary to enable the court to do justice between the parties.
They are the principles which I propose to refer to in exercising my discretion in deciding this application. Looking firstly at the question of adequate reasons, the applicant puts forward the excuse that he has suffered from ill health. However, there is no further information provided in his affidavit. There is no medical report or certificate annexed to that affidavit. There is simply no evidence whatsoever in support of his claim, other than the applicant’s bald assertion that he has suffered ill health for a period of two months prior to him filing the application. He does not say it in so many words, but I take it that he is saying that because of his ill health he was unable to file the Notice of Appeal within time.
In submissions, the applicant has elaborated on his ill health to the extent that he says he suffers from migraines, he has a shoulder injury, he is on WorkCover, and he says he has been bedridden.
In my view the applicant has simply not satisfied me that there is any adequate explanation or reason for the delay in filing his application. There is no specific reason put as to why he was unable to file a Notice of Appeal within 28 days of the order being made by the Federal Magistrate.
Next, there should be a substantial issue to be raised on the appeal. Again, in my view the applicant has failed to satisfy that requirement. I have read the reasons for judgment delivered by Federal Magistrate Brown on 30 January 2008. His Honour dismissed the application because he found that he had no jurisdiction to undertake a judicial review as sought by the applicant. Federal Magistrate Brown did not leave it there though; his Honour went on to look at whether there was another way that he could assist the applicant in the action and allow the matter to proceed.
The learned Federal Magistrate addressed the issue as to whether he could make an order for departure. He found that he could not. His Honour said that on the basis of the material before him he was not persuaded that it would be either just and equitable or otherwise proper for there to be a departure from the administrative assessment of child support made by the relevant officer or indeed any other of the child support assessments to which the learned Federal Magistrate had been referred, “(p)articularly in the absence of any articulated grounds under section 117(2) from Mr [Chranley].”
In his draft Notice of Appeal, the applicant puts forward two grounds, one being that the learned Federal Magistrate failed to consider all the information in relation to the application. I inquired of the applicant as to whether he could give me an example of such information and he could not. Indeed, his response was totally in relation to what seems to be the second ground of appeal, namely - and reading from the draft notice of appeal, "Magistrate Brown denied me my civil liberties."
In responding to my question, the applicant suggested that Federal Magistrate Brown was biased towards him because of how he accommodated the respondent during the course of the proceedings and how there are other matters that he, the applicant, has in the Federal Magistrates Court and how he says there is some sort of history between him and Federal Magistrate Brown in terms of applications that the Federal Magistrate has heard. He tells me that he has an application for Federal Magistrate Brown to disqualify himself and he says there are other appeals which he has lodged which he is proceeding with.
I am not satisfied on anything that the applicant has either put in his affidavit material or put to me in submissions, that there is anything like a substantial issue to be raised on appeal. However, that said, the fundamental issue still is whether the granting of an extension of time for leave to appeal out of time is necessary to enable the court to do justice between the parties. Having read the reasons for judgment of the learned Federal Magistrate, having read the documents that the applicant has now filed, and having heard his submissions, in my view it is not necessary to grant an extension of time to enable the court to do justice between these parties
Thus, for all those reasons I dismiss the application and remove it from the active pending list.

I certify that the preceding 21 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 30 May 2008.

Associate