Fraser and Bancroft
[2016] FamCAFC 51
•23 March 2016
FAMILY COURT OF AUSTRALIA
| FRASER & BANCROFT | [2016] FamCAFC 51 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the husband seeks an extension of time to appeal against an order listing an application for interim property orders for hearing and issue of subpoena – Application refused. |
| Family Law Act 1975 (Cth): ss 94AA Family Law Rules 2004 (Cth): rr 22.02, 22.03, 22.12 |
| Gallo v Dawson (1990) 93 ALR 479 Medlow & Medlow [2016] FamCAFC 34 |
| APPLICANT: | Mr Fraser |
| RESPONDENT: | Ms Bancroft |
| FILE NUMBER: | SYC | 916 | of | 2015 |
| APPEAL NUMBER: | EA | 190 | of | 2015 |
| DATE DELIVERED: | 23 March 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 23 March 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS MADE: | 25 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Ryan (direct brief) (appearing by telephone link) |
| FOR THE RESPONDENT: | No appearance for or on behalf of the respondent |
Orders
That the Application in an Appeal filed 4 December 2015 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fraser & Bancroft has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPEALLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 190 of 2015
File Number: SYC 916 of 2015
| Mr Fraser |
Applicant
And
| Ms Bancroft |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the Court is an Application in an Appeal and supporting affidavit filed on 4 December 2015 by Mr Fraser (“the husband”) seeking an extension of time to appeal Orders 1 and 4 made by Judge Henderson on 25 September 2015. Those orders listed the wife’s application for interim property orders for hearing on 7 December 2015 (Order 1) and gave all parties leave to issue as many subpoenas as they deemed necessary (Order 4). The orders are procedural or interlocutory orders, and thus not only is leave required because an extension of time is sought, but also because it would be an appeal against orders of that type.
By his draft Notice of Appeal the husband seeks orders that the interim property hearing listed on 7 December 2015 be vacated; that the order granting the parties leave to issue as many subpoenas as they deem necessary be set aside; and that the substantive property proceedings be transferred to the Newcastle Registry of this Court. I pause to observe that remarks made this morning by counsel who appeared for the husband suggest that the proceedings have been transferred to the Family Court.
It is to be noted that following the filing of the husband’s Application in an Appeal the interim hearing took place on 7 December 2015. That hearing related to an application for the sale of a property owned by the husband and his former wife, Ms Bancroft (“the wife”).
I also pause to express my amazement that counsel for the husband did not concede that the proposed appeal against the order listing that application for hearing in December 2015 was now otiose. The arguments made in support of the proposition that somehow there is utility in this aspect of the appeal, with the greatest respect to counsel who appeared for the husband today, are nonsensical.
The application to extend time to appeal
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Family Law Rules”) deals with appeals.
Rule 22.02 provides that an appeal is to be commenced by filing a Notice of Appeal.
Rule 22.03 sets out the timeframe within which an appeal is to be filed: namely 28 days. In this case, the last day for filing a Notice of Appeal was 23 October 2015.
The principles relating to applications for an extension of time to file an appeal are set out Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. Discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation, the consequences for the parties of the grant or refusal of leave and the explanation for the delay proffered by the husband for leave.
In order to determine whether or not compliance with the times fixed by the rules would have the rules become instruments of injustice, it is necessary to consider the possible merits of the appeal. The point being, refusal of an application to extend time for an unmeritorious appeal would not work an injustice.
Again, with the greatest respect to counsel who appeared for the husband and argued the application today, the submissions did not come close to addressing the matters just referred to.
Discussion
The reasons for the husband’s delay are listed at [7] of his affidavit filed on 4 December 2015. The husband referred to the fact that he is self-represented in these proceedings (and other proceedings in both this Court and the District Court of NSW concerning himself and the wife); delays in the provision of transcript; and his ailing health as reasons for his delay in filing this application.
More critical to my consideration of this application, however, is the nature of the orders, that is, they are interlocutory orders and the merits of the proposed appeal itself.
In the recent Full Court decision of Medlow & Medlow [2016] FamCAFC 34, the Full Court adopted a new test to be applied in applications for leave to appeal under s 94AA of the Family Law Act 1975 (Cth) (“the Act”), which test is set out as follows:
57.We are of the opinion that, subject to the caveat just discussed, the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
(Original emphasis)
Applying such a test to the present case, it cannot be said that the decision of Judge Henderson to list the wife’s application for interim hearing (Order 1) is attended by sufficient doubt to warrant it being reconsidered by the Full Court. Further, and particularly in light of the fact that the interim hearing has already taken place, it cannot be said that the listing order occasioned a substantial injustice.
The same must be said in relation to the challenge to her Honour’s Order 4, being the subpoena order. Counsel first mounted her argument in support of leave concerning the subpoena order by reference to the Family Law Rules. These were proceedings conducted in the Federal Circuit Court, and the Family Law Rules had nothing to do with the matter at hand.
Reference was then made to rules in relation to appeals which again had nothing to do with the matter at hand. Counsel was eventually directed by the Court to r 15A.05(1) of the Federal Circuit Court Rules 2001 (Cth) which provides that unless the Court directs otherwise a party or Independent Children’s Lawyer must not request the issue of more than five subpoenas in a proceeding. In support of this challenge, counsel argued that the Court would only permit the issue of more than five subpoenas in proceedings in exceptional circumstances. Counsel was unable to take me to any provisions in the rules, or authority, in support of that proposition, and it is rejected.
Her Honour has done no more than facilitate the issue of a subpoena without the Court being required to constantly oversee whether the subpoena should be issued. Her Honour said nothing which would restrict the need for any subpoena to have a legitimate forensic purpose. The argument advanced in support of this challenge did not address the question of whether the order is itself attended by sufficient doubt and would cause substantial injustice if leave were refused.
I am strongly of the view that the proposed appeal is entirely unmeritorious and the application should never have been pursued. The husband should be relieved that the wife would seem not to have incurred legal expenses in resisting the application. It is dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 23 March 2016.
Associate:
Date: 13 April 2016
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