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:

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”).
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.
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…

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.

Continue reading Harrelson & Harrelson

Details

AGLC: Harrelson & Harrelson [2023] FedCFamC1A 31
Case: [2023] FedCFamC1A 31
Decision Date

CaseChat Overview and Summary

In the case of Harrelson & Harrelson, the applicant sought an extension of time to appeal from orders made by a magistrate concerning the arrangements for the children to spend time with and communicate with him. The applicant argued that the orders were unsuitable and did not adequately allow for meaningful time with the children, particularly the youngest child. The legal issues before the court were whether the applicant's delay in applying for an extension of time was inconsequential and whether the proposed grounds of appeal had reasonable prospects of success.

The court found that the applicant's delay in applying for an extension of time was relatively inconsequential, as he was only a week late and had already tried unsuccessfully to appeal within time. The court also found that no prejudice could conceivably flow to the respondent by reason only of such modest delay. However, the court noted that modest delay and a reasonable explanation for it were not dispositive factors. The more salient consideration was whether it would be futile to grant an extension of time within which to appeal, because the proposed grounds of appeal were either incompetent or evinced so little ostensible merit that they lacked reasonable prospects of success. The court found that the applicant's grievance with the appealed orders was not that they were beset by legal, factual or discretionary error, but rather that he perceived them to be unsuitable. The proposed grounds of appeal were largely based on the applicant's perception that the orders did not allow for meaningful time with the children and that the information provided to the psychologist was incomplete. However, the court found that these grounds were either incompetent or lacked reasonable prospects of success.

Ultimately, the court found that it would be futile to grant an extension of time within which to appeal, because the proposed grounds of appeal were either incompetent or evinced so little ostensible merit that they lacked reasonable prospects of success. The court dismissed the application for an extension of time.

Orders

Orders of the court

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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

Those principles are applicable now.Consideration 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. 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. 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. 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]). 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. 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 transcript5.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)

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

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

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