Esperanza and Gimenez
[2016] FamCAFC 16
•12 February 2016
FAMILY COURT OF AUSTRALIA
| ESPERANZA & GIMENEZ | [2016] FamCAFC 16 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks an extension of time to file an appeal – Where the application is opposed – Where there is no satisfactory explanation provided by the applicant for failing to file the appeal within time – Where the appeal has no merit and is doomed to fail – Application dismissed. |
| |||
| APPLICANT: | Ms Esperanza | ||
| RESPONDENT: | Mr Gimenez |
| FILE NUMBER: | MLC | 9229 | of | 2012 |
| APPEAL NUMBER: | SOA | 37 | of | 2014 |
| DATE DELIVERED: | 12 February 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 12 February 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2012 |
| LOWER COURT MNC: | [2012] FamCA 1102 |
REPRESENTATION
| THE APPLICANT: | In Person with interpreter |
| THE RESPONDENT: | In person |
Orders
The application in an appeal filed on 17 November 2016 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Esperanza & Gimenez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 37 of 2014
File Number: MLC 9229 of 2012
| Ms Esperanza |
Applicant
And
| Mr Gimenez |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
I have before me an application in an appeal filed by Ms Esperanza (“the applicant”) on 17 November 2015 seeking a number of orders but primarily, and in effect, an extension of time to file a Notice of Appeal against orders made by Cronin J on 20 December 2012.
There are other orders sought in the application, but apart from the order wherein the applicant seeks to be allowed to have a Spanish interpreter, those orders are not orders that either can be sought in such an application, or indeed be made by this court at this stage.
In relation to the issue of an interpreter, I note that the applicant has had the benefit of a Spanish interpreter. However, she has not called upon that interpreter to translate anything that I have said, and I have not needed to call upon the interpreter to translate anything that the applicant has put to this court. In any event, I appreciate that there may have been circumstances which could have arisen during this hearing which required the involvement of the interpreter.
It is relevant to set out the history of this matter as follows.
Cronin J delivered his reasons for judgment and made orders on 20 December 2012. Those orders were in effect orders which followed on from orders for property settlement made in October 2000, and crystallised payments to be made pursuant to those orders. The applicant, as is apparent, was clearly unhappy with the orders made by Cronin J, but she failed to file an appeal against those orders within the time allowed under the Family Law Rules 2004 (Cth) (“the Rules”), namely within 28 days. Indeed, it was not until 28 May 2014 that the applicant did anything about that. At that time she filed an application in an appeal seeking in effect an extension of time to file a Notice of Appeal. That application was supported by an affidavit of the same date, and by a draft Notice of Appeal, which was to be the Notice of Appeal relied upon in the event that the extension of time was granted.
That application was opposed by Mr Gimenez (“the respondent”).
The application in an appeal came before me for hearing on 4 July 2014, when I delivered reasons for judgment, and made an order dismissing the application.
The primary reasons for dismissing the application were, first that there was no adequate explanation, and no adequate reason, provided by the applicant for either the failure to file a Notice of Appeal within the time allowed, or, and equally as important, why it took approximately 16 months to file the application seeking an extension of time. Secondly, I found that in relation to the Notice of Appeal, and specifically the grounds of appeal relied upon, that the appeal had no merit, and in particular it was hopeless and doomed to fail. The applicant had simply not demonstrated that there was an arguable case on appeal. Indeed, I went further and concluded that on a close perusal of the reasons for judgment of the trial judge, there was no appealable error that emerged from those reasons for judgment.
I also observe that given the nature of the orders made by Cronin J, leave was necessary to appeal those orders. No leave was sought in the draft Notice of Appeal relied on by the applicant for the purposes of the hearing in July 2014, but as I set out in my reasons for judgment, I did not make that a reason for dismissing the application.
I note now, as I did in the reasons for judgment delivered in July 2014, that the applicant appears without legal representation. It is apparent that in the recent past the applicant has consulted solicitors, because there was an Address for Service filed in January 2016, but unfortunately a Notice of Ceasing to Act was filed not long thereafter. I take from that though that the applicant has at least been able to seek legal advice about this application.
Following my dismissal of the application in an appeal on 4 July 2014, on 5 August 2014, the applicant filed an application in the High Court of Australia, seeking special leave to appeal the order that I made. That application came before the High Court of Australia on 10 December 2014, and was dismissed. Their Honours in their reasons for judgment said, “[t]he application discloses no reason to doubt the correctness of either decision” (paragraph 5 of the High Court of Australia reasons for judgment), referring to the decision of Cronin J, and to my decision dismissing the application.
As can be seen the application before the court today is another application in an appeal seeking once again an extension of time to appeal the orders of Cronin J made on 20 December 2012. That application is supported by an affidavit of the same date, namely 17 November 2015.
I have carefully perused the application, the supporting affidavit, and the draft Notice of Appeal which has been lodged, and is relied upon as being the Notice of Appeal that would be pursued in the event that an extension of time was granted. In addition I have invited the applicant today to make submissions as to why the application should be allowed to proceed, and indeed why it should succeed, and I have listened carefully to the submissions that the applicant has made in that regard.
Unfortunately, having done that, there is nothing new in the documents which would persuade me to grant an extension of time to appeal. There is still no explanation proffered as to why a Notice of Appeal was not filed within the time allowed under the Rules, and no explanation as to why there was that delay of some 16 months before the initial application was filed.
In terms of the merits of the appeal, certainly in the draft Notice of Appeal leave to appeal is now sought, and there are matters set out in support of leave being granted, and there are grounds of appeal set out in the event that an extension of time is granted, and leave is granted. However, to repeat, there is nothing new in those grounds of appeal. They might be expressed differently in some respects, but as I said in my reasons for judgment on 4 July 2014, and it equally applies today, it is extremely difficult to discern from the grounds of appeal any challenge which could be treated as raising or identifying appealable errors by the trial judge.
Nor has that task been assisted by what the applicant has said to the court today. The applicant has in those submissions, which were of a similar nature to the oral submissions made to the court on 4 July 2014, talked about the hearing in 2012 before Cronin J being unfair, and his Honour’s orders not being fair, and she has made allegations about the respondent lying in those proceedings. The applicant has also made other allegations about the respondent which I do not need to repeat because they are not relevant to the hearing today. In a sense she summarised her position as being that she was here for justice.
However, none of that assists me in identifying in the grounds of appeal, or indeed in the facts presented in support of the application for leave to appeal, any basis for leave to be granted or any appealable error by the trial judge, and that is what I am referring to when I say that there is nothing new in this application.
As I have indicated to the applicant, I consider this to be a complete waste of time, and in particular a waste of this court’s time, this court being supported by taxpayer money. Of course it is also a waste of the respondent’s time in having to come to court and respond, in effect, to this application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 12 February 2016.
Associate:
Date: 22 February 2016
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