DUKAS & SOMMER
[2021] FamCAFC 51
•12 April 2021
FAMILY COURT OF AUSTRALIA
| DUKAS & SOMMER | [2021] FamCAFC 51 |
| FAMILY LAW – APPEAL – Extension of time – Where the applicant seeks to extend the time in which to file a Notice of Appeal – Where there is no satisfactory explanation for the failure to file the Notice of Appeal within time – Where none of the so-called grounds of appeal have any chance of success and the appeal is without merit – Where there is no prejudice to the applicant if the application is dismissed because the appeal is without merit – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 |
| APPLICANT: | Ms Dukas |
| RESPONDENT: | Ms Sommer |
| FILE NUMBER: | ADC | 4351 | of | 2018 |
| APPEAL NUMBER: | SOA | 95 | of | 2020 |
| DATE DELIVERED: | 12 April 2021 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 12 April 2021 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | No appearance |
Orders
The Application in an Appeal filed on 30 November 2020 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dukas & Sommer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
File Number: ADC 4351 of 2018
Appeal Number: SOA 95 of2020
| Ms Dukas |
Applicant
And
| Ms Sommer |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the court today is an Application in an Appeal filed on 30 November 2020 by Ms Dukas (“the applicant”), seeking an extension of time to file a Notice of Appeal against an order made by a Judge of the Federal Circuit Court of Australia on 26 October 2018.
That application first came before this Court on 22 February 2021, and just prior to that hearing the applicant filed an Application in an Appeal seeking an adjournment of the application, to enable her to obtain legal advice and legal representation through the Legal Services Commission of South Australia. At the hearing the applicant informed me that she had made a formal application for legal assistance, that that application would take four to six weeks to process, and that was the period of the adjournment she sought.
I indicated to the applicant, that having read the documents, there was no basis for an extension of time to be granted to file a Notice of Appeal, because the appeal simply could not succeed. Thus, even if an extension of time was granted and the appeal proceeded, it would almost immediately have to be dismissed because it had no merit. Despite that, I agreed to the adjournment sought in the hope that the applicant would obtain some legal assistance, and the advice she received would be to discontinue the application.
The applicant again appears in person today. She tells me that her application for legal assistance was refused, and thus, she sought a further adjournment. The applicant says she has spoken to one or two lawyers, she has other proceedings in another court, and she wants to further consider this matter. However, I am not prepared to grant an adjournment. It is a waste of this Court’s time, and a waste of taxpayers’ money for this matter to proceed beyond today.
I propose to dismiss the application, and because there is no point of principle involved, I propose to deliver short reasons.
The Application in an Appeal was filed on 30 November 2020 and, to repeat, it seeks an order extending the time to file a Notice of Appeal against an order made by a Judge of the Federal Circuit Court of Australia on 26 October 2018.
The Family Law Rules 2004 (Cth) (“the Rules”) provide for a Notice of Appeal to be filed within 28 days of the order sought to be appealed against being made. Clearly, that 28-day period has well and truly expired and, as a result, the only course for the applicant was to file an Application in an Appeal seeking an extension of time, which she did over two years after the order was made.
The order which is sought to be appealed against is an order dismissing the applicant’s application that was before the court at that time. The applicant was represented on that occasion, and the order dismissing the application was made by consent. The application referred to sought, for want of a better description, an order effectively seeking the recovery from Ms Sommer (“the respondent”), of the three children of whom the applicant is the grandmother.
As for the respondent, who is the mother of the three children, she has not appeared today, and nor did she appear when the matter was last before this Court. However, that is not a matter which causes me any difficulty in finalising the application today.
According to the transcript, and in which the reasons for judgment are contained, it was the applicant’s own counsel who sought that the application before the court be discontinued, and that was as a result of there being proceedings in the Children’s Court in relation to the three children. Indeed, as is deposed to in the affidavit filed by the applicant in support of the application before the court today, at the time that order was made, the children were already back with the applicant.
The relevant legal principles
The principles applicable to applications such as this are well settled and, for example, there is the oft-cited quote of McHugh J in the High Court decision of Gallo v Dawson (1990) 93 ALR 479 at 480 – 481 as follows:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
(Citations omitted)
Thus the relevant principle is that the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, and that is informed by a consideration of a number of factors, three of which are most important. First, the reasons for the failure to comply with the timeframe provided for in the Rules, secondly, the merits of the appeal and, thirdly, any prejudice to the parties depending upon the outcome of the application.
The failure to comply with the relevant timeframe
Those reasons for that failure are contained in the affidavit filed by the applicant in support of the application before the court today and, in summary, the applicant suggests that she was unaware that she was able to appeal. She became concerned about the order that was made when a similar circumstance arose in 2020, and she then made the decision that she wished to pursue an appeal against the order made on 26 October 2018.
For my part, those reasons do not provide a satisfactory explanation for the failure to comply with the timeframe set out in the Rules.
The merits of the proposed appeal
As I have indicated earlier, the view I formed upon reading the documents, was that there was no merit whatsoever in the proposed appeal and, having revisited the relevant documents, that view has been confirmed. There is no error identified on behalf of the primary Judge in the so-called grounds of appeal contained in the Notice of Appeal and, in any event, having read the reasons of the primary Judge, and appreciated the circumstances in which the order was made, I can find no appealable error by his Honour.
The prejudice to the parties depending on the outcome
The only relevant prejudice is to the applicant, given that there is no appearance by the respondent.
Plainly, if the application is dismissed, the applicant will not be able to pursue an appeal. However, that is no prejudice, because there is no merit in the appeal and, as I said earlier and I repeat, even if an extension of time was granted and the appeal proceeded, it would immediately be dismissed as a result of there being no merit in the appeal. Thus, plainly, the justice of the case demands that this application be dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 12 April 2021.
Associate:
Date: 21 April 2021
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