JABBAR & GADE
[2017] FamCAFC 273
•14 March 2017
FAMILY COURT OF AUSTRALIA
| JABBAR & GADE | [2017] FamCAFC 273 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time – Where the applicant filed a Notice of Appeal out of time – Where the applicant seeks to appeal interim parenting and property orders – Where an appeal against the parenting order would lack utility – Where an appeal against the interim property orders would require leave to appeal – Where such an appeal would be futile – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Jabbar |
| RESPONDENT: | Mr Gade |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2265 | of | 2015 |
| APPEAL NUMBER: | EA | 18 | of | 2017 |
| DATE DELIVERED: | 14 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 14 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2016 |
| LOWER COURT MNC: | [2016] FCCA 3418 |
REPRESENTATION
THE APPLICANT: | In person |
| THE RESPONDENT: | No appearance by or on behalf of the respondent |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Presker (by telephone) |
Orders
The application for an extension of time in which to appeal the orders of Judge Terry made on 20 December 2016 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jabbar & Gade has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 18 of 2017
File Number: NCC 2265 of 2015
| Ms Jabbar |
Applicant
and
| Mr Gade |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ms Jabbar (“the applicant”) seeks to appeal against interim parenting and property orders made by Judge Terry on 20 December 2016. The parenting order concerns the child of the applicant and Mr Gade (“the respondent”) who was born in 2012.
The appeal was sought to be filed out of time and the applicant requires an extension of time in which to do so. Rule 22.03 of the Family Law Rules 2004 (Cth) provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. The applicant sought to file the appeal one week out of time.
By Application in an Appeal filed on 24 January 2017 the applicant sought an extension of time in which to appeal.
The principles governing an extension of time in which to appeal are well known. The granting of leave is not automatic but 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 parties of the grant or refusal of leave to extend time (see Gallo v Dawson (1990) 93 ALR 479).
In reasons delivered on 20 December 2016, the trial judge dealt with interim parenting and property orders, including the application that the applicant be permitted to attend the child’s first day at school. That application was dismissed and the balance of the parenting issues were adjourned to 31 January 2017 for further consideration. The Independent Children's Lawyer informed the Court that since that date there has been a further mention and the parenting matter is listed on 23 March 2017, on which date it is expected that an expert report on the parenting issues will be available. When that report is to hand, the Independent Children's Lawyer indicated that her Honour intended to list the mother’s applications for hearing.
Thus, there is only one parenting order made by her Honour on 20 December 2016 to consider, that dismissing the application that the applicant be permitted to attend the child’s first day at school.
On 20 December 2016 her Honour also made interim orders relating to the parties’ property. These provided that the applicant was to have sole occupancy of one property on the condition that she pay the outgoings on that property, and that the respondent was entitled to lease another property, again on the basis that he pay the outgoings on that property if there was a shortfall between any rental income and the amount of the outgoings. It is not apparent when her Honour will conduct a final hearing in relation to the property orders.
The applicant’s proposed appeal challenges both the interim property orders and the parenting order.
The applicant appears for herself. Her affidavit in support of the application for extension of time does not assist in determining the issues necessary to this application. She said that while she attempted to file the Notice of Appeal in late December 2016, there were “technical difficulties”, in part due to the shutdown of the Registry over Christmas, and thus time expired.
The delay and the reason for it have been satisfactorily explained. However, that is not the end of the consideration of this application.
It is necessary to consider the merits of any proposed appeal. That is, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought.
The parenting order that the applicant seeks to challenge is her Honour’s dismissal of the application that she attend the child’s first day of school. That day has come and gone and thus there is no merit in the appeal and to grant an extension of time to appeal against it would be futile. While the applicant acknowledged that the day had passed, she contended that despite filing an application seeking parenting orders, and in particular seeking additional time with her children, the application had not been determined. While the delay is clearly a matter of distress for the applicant, to give leave to appeal against the parenting order of 20 December 2016 would be futile. The application for extension of time in which to appeal the parenting orders will be refused.
The proposed ground of appeal in relation to the interim property orders challenges her Honour’s order that the respondent be entitled to cause one of the parties’ properties to be rented. The challenge does not assert error but contends that if the applicant rather than the respondent is entitled to rent out the property, it would help to improve her financial situation in the future. The affidavit in support of the application asserts that the applicant holds a “Cert IV” [from TAFE] and continues:
12. I am able to rent out [C] Property and mange [sic] some money for my daily expenses.
13. It may be helpful for me in future to work in [industry].
Even if an extension of time to appeal the interim property orders is granted, an appeal against an interim property order requires leave to appeal. Nothing put by the applicant satisfies the requirements of leave and so it would also be futile to extend the time in which to bring an appeal against the interim property orders.
The application will be dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
14 March 2017.
Associate:
Date: 14 March 2017