Harrelson & Harrelson

[2023] FedCFamC1A 31

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Harrelson & Harrelson [2023] FedCFamC1A 31

Appeal from:

Harrelson & Harrelson [2023] FCWAM 51

Appeal number:

NAA 42 of 2023

File number:

PTW 5026 of 2022

Judgment of:

AUSTIN J

Date of judgment:

22 March 2023

Catchwords:

FAMILY LAW – APPEAL – Application in an Appeal – Extension of time to file Notice of Appeal – Where the applicant seeks leave to appeal out of time against interim parenting orders made between the parties – Where the modest delay and reasonable explanation are not dispositive factors – Where it would be futile to grant an extension of time within which to appeal because the proposed grounds have no apparent merit – Leave to appeal refused – Application dismissed – No order as to costs.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46(2)

Cases cited:

Albert & Plowman [2020] FamCAFC 23

U v U (2002) 211 CLR 238; [2002] HCA 36

Whitmore & Whitmore [2022] FedCFamC1A 75

Number of paragraphs:

24

Date of hearing:

22 March 2023

Place:

Newcastle (via video link)

The Applicant:

Litigant in person

Counsel for the Respondent:

Mr Mansfield

Solicitor for the Respondent:

Paynes Lawyers

ORDERS

NAA 42 of 2023
PTW 5026 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HARRELSON

Applicant

AND:

MS HARRELSON

Respondent

order made by:	AUSTIN J
DATE OF ORDER:	22 March 2023

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 2 March 2023 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 25 January 2023, a magistrate of the Magistrate’s Court of Western Australia made interim parenting orders between the parties in respect of their four children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The applicant lost his legal representation after the judgment was delivered, but before the appeal limitation period expired. Acting without the benefit of legal representation, the applicant tried to file an appeal within time, but his Notice of Appeal was rejected by the appeal registrar for valid procedural reasons. The limitation period then expired on 22 February 2023.

3. On 2 March 2023, the applicant filed an Application in an Appeal seeking leave to extend time within which to file his appeal. That is the application now under consideration.

4. In support of the application, the applicant relied upon his affidavit filed on 2 March 2023, together with a draft Notice of Appeal he will file if permitted to do so.

5. For the following reasons, the application to extend time is dismissed.

   Legal principles

6. As was recently observed in Whitmore & Whitmore [2022] FedCFamC1A 75:

   17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.

   18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.

7. Those principles are applicable now.

   Consideration

8. The applicant’s delay in applying for an extension of time within which to appeal is relatively inconsequential. He was little more than a week late and had already tried unsuccessfully to appeal within time. No prejudice could conceivably flow to the respondent by reason only of such modest delay. But modest delay and a reasonable explanation for it are not dispositive factors.

9. The more salient consideration for present purposes is whether it would be futile to grant an extension of time within which to appeal, because the proposed grounds of appeal are either incompetent or evince so little ostensible merit that they lack reasonable prospects of success.

10. The applicant intends to appeal only from Orders 2, 3 and 20 made by the magistrate, which make provision for the manner in which the children will spend time and communicate with him. The orders supplement interim orders made consensually between the parties on 6 July 2022, by slightly expanding the level of the children’s interaction with the applicant. Both parties had proposed some level of expansion, but in quite different forms.

11. The magistrate found an elevated level of parental conflict, to which the children had been exposed (at [4] and [11]) and for which both parties should bear some blame (at [8]). Since July 2022, the children had lived with the respondent and any idea of splitting their residence between households was rejected (at [10] and [13]). The magistrate found the youngest child should gradually spend more time with the applicant (at [20]–[21]), but it was not in the best interests of the elder three children to expand their time with the applicant (at [19]), other than in school holiday periods (at [22]).

12. Evidently, the applicant believes the children’s interaction with him should have been expanded more generously than occurred, but therein lies an insight into the nature of this appeal. The applicant’s grievance with the appealed orders is not really that they are beset by legal, factual or discretionary error, but rather that he perceives them to be unsuitable.

13. The proposed grounds of appeal are pleaded in the draft Notice of Appeal in this way:

    1.Information given to the psychologist from respondent wasn't the full narrative of background so reports based on incorrect information supplied and misleading. This information wasn't available to myself until after the hearing due to only being able to contact the relevant professionals after the hearing.

    2.Meaningful time with the children and in particular [the youngest child] as current orders allow limited time and that current limited time is heavily impacted by substantial travel which affects the three older children's limited time with the applicant. The current orders contravene the family law act rights of the child allowing meaningful frequent contact with both parents.

    3.Orders don't allow meaningful time with the children, especially [the youngest child] to create a bond as outlined in hearing by your honor, yet orders allow 12 days of no physical contact, which isn't in child's best interest and doesn't allow child to form attachment and bond, Goes against family consultants advise and recommendations as outlined by your honur in the hearing.

    4.Incorrect information supplied from respondent in relation to time spent previously with all children and particularly [the youngest child]

    5.Untested risk yet respondent lawyer contradicts themselves stating risk then states no risk. Evidence all iproven in court transcript

    5.Video calls changed to Skype but aren't working due to none compliance from respondent so having to revert back to WhatsApp

    6.Your honor and respondents lawyer [name] both agreed 12 days was too long, and also agreed: that my time with [the youngest child] was currently very limited for a child that age.

    7.Lot of substance was given to respondents evidence with regards mental health support worked and school chaplain who since spoken to and the narrative of information supplied to them from respondent is incorrect on many attributes which I have evidence of now which wasn't available at time of hearing as wasn't made aware of the chaplains and childrens mental health support workers contact information. I have sought extensive legal advice before lodging this appeal despite no longer having leagal reprentation.

    (As per the original)

14. Ground 1 is a complaint about the accuracy of background information given by the respondent to a psychologist; not a complaint of any appealable error made by the magistrate.

15. Grounds 2 and 3 are simply statements of belief by the applicant to the effect that the children do not see him regularly enough or for long enough. They do not identify any appealable error allegedly made by the magistrate.

16. Ground 3 additionally asserts that the orders do not correlate with evidence given by the family consultants, but no judicial officer is bound to accept and then act upon expert opinion evidence (U v U (2002) 211 CLR 238 at 261; Albert & Plowman [2020] FamCAFC 23 at [19]–[22]). The ground does not identify the nature of any appealable error which is manifest merely from the magistrate making orders which do not align with the opinions of the family consultant, even if such disparity really exists.

17. Ground 4 complains of “incorrect information” given by the respondent, but it is not revealed to whom the incorrect “information” was given. It is unclear whether the applicant means representations made by the respondent to another witness (much like the complaint within Ground 1) or the evidence she gave in the hearing. Regardless, the magistrate was entitled to act upon the evidence adduced at hearing by the respondent and other witnesses despite the applicant’s belief in the inaccuracy of the evidence. The ground does not reveal any appealable error by the magistrate.

18. The first Ground 5 complains about contradictory submissions made by the respondent’s lawyer, which complaint is entirely immaterial. The reasons for judgment delivered by the magistrate explain the orders made. Any appealable error must be identified in such reasons, not in the submissions made by a lawyer, which may not have even been accepted by the magistrate.

19. The second Ground 5 appears to be a complaint about the operation of the orders regulating the applicant’s communication with the children. If he considers such orders are not being properly implemented, he is free to bring proceedings to enforce them. The ground does not evince any appealable error by the magistrate in making an order which is being flouted.

20. Ground 6 is simply the applicant’s summary of what he believes he heard said by the magistrate and the respondent’s lawyer during the hearing. Even if the particulars of this ground are a reasonably accurate summary of what was actually said in Court as the hearing unfolded, it does not follow that the magistrate fell into appealable error by making such observations. The magistrate might only have been testing the validity of submissions made by the lawyers but, even if the remarks appeared to be statements of actual intent, the magistrate might have had cause to re-consider such provisional remarks once judgment was reserved. The regularity and duration of the children’s visits with the applicant are explained by the reasons for judgment. The orders are not impeached by demonstrating the magistrate made remarks which are prone to imply his Honour prevaricated over the result before making a final decision and then pronouncing it.

21. Without intending disrespect, Ground 7 is meaningless.

22. As the proposed grounds of appeal have no apparent merit, leave to appeal out of time should be refused. It would be pointless extending the time to appeal because the Notice of Appeal would then be promptly amenable to summary dismissal for absence of any reasonable prospect of success (s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).

    Disposition

23. The Application in an Appeal filed on 2 March 2023 is dismissed.

24. The respondent did not seek costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       24 March 2023