DICKENS & DICKENS - [2015] FamCAFC 54

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS

[2015] FamCAFC 54

FAMILY LAW – APPEAL – Application to extend time to appeal – Application to adduce fresh evidence – Whether a refusal to extend time would act as an injustice to the applicant father – Whether the appeal is so devoid of merit that it would be futile to make the order sought – Where there is no satisfactory explanation of the applicant’s delay in appealing the orders – Where there are no merits in the proposed appeal – Where there would be prejudice to the respondent mother if the applications were allowed – Applications dismissed.

Family Law Act 1975 (Cth)

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
University of Wollongong v Metwally ( No 2) (1985) 59 ALJR 481

APPLICANT:

Mr Dickens

RESPONDENT:

Ms Dickens

FILE NUMBER:

SYC

739

2010

APPEAL NUMBERS:	EA	33	of	2015
EA	38	of	2015

DATE DELIVERED:

14 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

31 March 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

Not applicable

LOWER COURT MNC:

Not applicable

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Adams of Hamish Cumming Family Lawyers

Orders

The Application in Appeal EA 33 of 2015 filed by the applicant on 9 March 2015 to extend the time in which to file a Notice of Appeal against the orders of Rees J made on 7 June 2013 be dismissed.
The Application in Appeal EA 38 of 2015 filed by the applicant on 16 March 2015 to extend the time in which to file a Notice of Appeal against the orders of Johnston J made on 16 September 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Numbers: EA 33 of 2015

EA 38 of 2015

File Number: SYC 739 of 2010

Mr Dickens

Applicant

and

Ms Dickens

Respondent

REASONS FOR JUDGMENT

Mr Dickens (“the father”) brings two applications; in each case, he seeks an extension of time in which to appeal decisions of the Family Court.
The father and Ms Dickens (“the mother”) are parties to parenting proceedings relating to their two children, C, who was born in 2003 and B, who was born in 2001.
The parenting proceedings have been on foot for some time and there have been numerous applications filed and consequent court appearances. The children live with the mother and it is the time that the father spends with the children that has been contentious.
Relevantly, the father proposes, if leave be given, to appeal against orders made by Rees J on 7 June 2013 and against orders made by Johnston J on

16 September 2014.
It is necessary to provide…

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

AGLC: DICKENS & DICKENS [2015] FamCAFC 54
Case: [2015] FamCAFC 54
Decision Date: 14 April 2015

CaseChat Overview and Summary

The case involved an appeal by the father against certain family law orders made in the Federal Circuit Court of Australia. The primary dispute was the father's applications to extend the time in which to file a Notice of Appeal against orders made by two different judges in the Family Court. The first application, EA 33 of 2015, sought an extension of time to appeal the orders made by Rees J on 7 June 2013. The second application, EA 38 of 2015, sought an extension of time to appeal the orders made by Johnston J on 16 September 2014. Additionally, the father sought to adduce fresh evidence to support his applications.

The central legal issues before the court were whether the refusal to extend the time for appealing would constitute an injustice to the applicant father, whether the proposed appeals were devoid of merit, and whether allowing the applications would prejudice the respondent mother. The court was required to balance the need for procedural fairness and the principles of justice against the need to maintain the integrity of the legal process and avoid undue delay.

The court found that the applications to extend the time for appealing were not justified. The father had not provided a satisfactory explanation for his delay in appealing the orders. Furthermore, the court concluded that there were no merits in the proposed appeals, and allowing the applications would likely prejudice the respondent mother. The court emphasised the importance of adhering to time limits in legal proceedings and the potential for unfairness if such limits were to be disregarded. As a result, both applications were dismissed.

The court's final orders were that the application in appeal EA 33 of 2015, filed on 9 March 2015, to extend the time in which to file a Notice of Appeal against the orders of Rees J made on 7 June 2013, be dismissed. Similarly, the application in appeal EA 38 of 2015, filed on 16 March 2015, to extend the time in which to file a Notice of Appeal against the orders of Johnston J made on 16 September 2014, was also dismissed.

Orders

Orders of the court

The Application in Appeal EA 33 of 2015 filed by the applicant on 9 March 2015 to extend the time in which to file a Notice of Appeal against the orders of Rees J made on 7 June 2013 be dismissed.

The Application in Appeal EA 38 of 2015 filed by the applicant on 16 March 2015 to extend the time in which to file a Notice of Appeal against the orders of Johnston J made on 16 September 2014 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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