Ivanson and Morwick
[2014] FamCAFC 211
•20 October 2014
FAMILY COURT OF AUSTRALIA
| IVANSON & MORWICK | [2014] FamCAFC 211 |
| FAMILY LAW – APPEAL – Application in an Appeal for an extension of time to file a Notice of Appeal – Where the application provides no explanation for the failure to file a Notice of Appeal on time – Where the proposed appeal concerns orders made in the absence of the appellant– Where the primary judge made an additional order pursuant to r 16.05(2) of the Federal Circuit Court Rules 2001 that the appellant could apply to set aside, vary, suspend or stay the orders – Where refusing an extension of time would occasion no injustice in circumstances where the appellant has been given an additional period within which to apply to set aside the orders – Application dismissed |
| Family Law Act 1975 (Cth): s 70NEB(1) Family Law Rules 2004 (Cth): r 22.38 Federal Circuit Court Rules 2001 (Cth): r 16.05(2) |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Ivanson |
| RESPONDENT: | Mr Morwick |
| FILE NUMBER: | PAC | 5042 | of | 2010 |
| APPEAL NUMBER: | EA | 126 | of | 2014 |
| DATE DELIVERED: | 20 October 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 20 October 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 23 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1796 |
REPRESENTATION
| FOR THE APPLICANT: | No appearance for or on behalf of the applicant |
| FOR THE RESPONDENT: | No appearance for or on behalf of the respondent |
Orders
The Application in an Appeal by Ms Ivanson filed on 5 September 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ivanson & Morwick 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 SYDNEY |
Appeal Number: EA 126 of 2014
File Number: PAC 5042 of 2010
| Ms Ivanson |
Applicant
And
| Mr Morwick |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were delivered orally.
This is an application by Ms Ivanson (“the mother”) for an extension of time to file a Notice of Appeal against orders made by Judge Halligan on
23 July 2014. The proposed appeal concerns orders made pursuant to s 70NEB(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) against the mother. The mother was found to have contravened interim parenting orders, which had been made by consent, in that on the five occasions identified in the orders she failed to allow Mr Morwick (“the father”) to spend time with their child, X (“the child”). The child self-evidently lives with the mother.
The effect of the orders made on 23 July 2014 was that, by way of compensatory time, the child would spend time with the father on four consecutive Saturdays. In addition, the mother was ordered to pay the father’s costs in the amount of $2,685.
If permitted to proceed with an appeal, the mother would ask that the orders for compensatory time and the order for costs be set aside. In addition, she would apply to vary the interim orders albeit the basis on which she could do so is unclear.
The father has not filed a response to the mother’s application and is not in attendance today. In the mother’s Application in an Appeal filed on
5 September 2014, she asked that her application be dealt with in accordance with r 22.38 and Part 5.4 of the Family Law Rules 2004 (Cth) (“the rules”).
The mother’s application was referred to chambers following which, it was directed that the matter be listed for hearing today at 11.00 am. The parties were not excused but, nonetheless, neither has attended. The hearing was called at 11.00 am and there was no appearance. For an abundance of caution, it was stood down and called again at 11.20 am. Again there was no appearance.
It is appropriate in these circumstances that I proceed to determine the application on the basis of the material filed and, of necessity, by reference to some of the material contained in the first instance file. To the extent that regard is had to the first instance file that will be apparent from the reasons that follow.
Background facts
On 11 October 2013 the father filed a contravention of parenting orders application against the mother. That application alleged three contraventions of interim orders made by consent on 22 July 2013.
The father filed a further contravention of parenting orders application on 13 June 2014.
The orders which are the subject of the contravention application provide that the parties have equal shared parental responsibility for the child, that the child live with the mother and spend time with the father each Sunday for eight hours. Changeovers take place at a police station in Greater Western Sydney, in relation to which the mother is required to present the child but remain no more than five minutes following the arrival of the father. The contraventions variously assert that the mother failed to deliver the child to the police station, and on other occasions remained longer than five minutes, and on at least one of those occasions then left with the child.
The mother did not attend on 23 July 2014 when the contravention applications were listed. His Honour’s reasons indicate that the father’s counsel informed the court they had received an email that morning from the mother’s solicitor indicating that, whilst they acted for her in the pending parenting proceedings, there was no grant of legal aid for them to assist her with the contravention proceedings. There had been contact with the mother and his Honour was informed, as I apprehend it, although it is not entirely clear, that the mother and all of her children were unwell, as a consequence of which the mother would not be able to attend court.
Nonetheless, his Honour determined to proceed with the hearing on an undefended basis. In so doing, he was apparently satisfied the mother was aware that the matter was listed and observed that she could have made an appearance by telephone or asked for an adjournment. Her failure to do so was persuasive of his Honour proceeding to a hearing in the mother’s absence.
Having heard the matter, his Honour made orders and delivered his reasons which, if permitted to appeal, are the orders which the mother would challenge.
The mother filed her application for an extension of time within which to appeal on 5 September 2014.
An examination of the first instance file reveals that on 22 September 2014,
his Honour varied the orders made on 23 July 2014 by inserting an additional order as follows:
The mother may apply to set aside, vary, suspend or stay the above orders within 28 days after service on her of a sealed copy of these orders.
That order was made pursuant to r 16.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (“FCCR”). The effect of his Honour’s order is that the mother has 28 days from the date of service of the orders made on 22 September 2014 within which to activate the process referred to in r 16.05(2)(c) of the FCCR. Those rules, relevantly, enable the Federal Circuit Court to set aside, vary, suspend or stay orders that have been made in the absence of a party without that party needing to demonstrate an error of law of the type that would be required for a successful appeal.
The applicable rules and principles
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. The 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 and the consequences for the parties of the grant or refusal of leave.
Conclusion
In circumstances where the mother has been given an additional period within which to apply to set aside and/or vary the orders made by the primary judge pursuant to the FCCR, I can see no basis upon which it could be said that refusing her an extension of time would occasion an injustice. She provides little evidence in support of her application beyond that to which I have already made reference. Notably she provides no explanation for her failure to file a Notice of Appeal within time.
It is abundantly clear that provision has been made for her to activate the appropriate mechanism to make the challenge she wishes to make to the orders made by the primary judge. I am not persuaded that an extension of time should be given.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on
20 October 2014.
Associate:
Date: 3 November 2014
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