JARRAH & FADEL
[2015] FamCAFC 47
•27 March 2015
FAMILY COURT OF AUSTRALIA
| JARRAH & FADEL | [2015] FamCAFC 47 |
| FAMILY LAW – APPEAL – Application in an appeal for an extension of time in which to file an appeal against divorce order – Where the divorce order has taken effect – Application dismissed. |
| Family Law Act 1975 (Cth) ss 93, 94 Family Law Rules 2004 (Cth) rr 22.03, |
| Gallo v Dawson (1990) 93 ALR 479 Price & Underwood (Divorce Appeal) [2009] FamCAFC 127 |
| APPLICANT: | Mr Jarrah |
| RESPONDENT: | Ms Fadel |
| FILE NUMBER: | PAC | 2015 | of | 2011 |
| APPEAL NUMBER: | EA | 23 | of | 2015 |
| DATE DELIVERED: | 27 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 24 March 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 3 November 2014 |
| LOWER COURT MNC: | [2014] FCCA 2313 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms L Beach as amicus curiae |
Orders made 24 March 2015
The Application in an Appeal filed by the father on 26 February 2015 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarrah & Fadel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 23 of 2015
File Number: PAC 2015 of 2011
| Mr Jarrah |
Applicant
and
| Ms Fadel |
Respondent
REASONS FOR JUDGMENT
By an application in an appeal filed 26 February 2015 Mr Jarrah (“the husband”) seeks an extension of time in which to file an appeal against the divorce order of Judge Dunkley made on 3 November 2014.
Ms Fadel (“the wife”) opposes the husband’s application.
Background
Proceedings between the husband and the wife have been on foot for many years, having been commenced in May 2011 when the wife sought parenting orders in relation to the parties’ three children. The children, E (born
2002), J (born 2003) and F (born 2006) have not seen the father for some years.
The husband is no stranger to the appeal process. He has filed appeals against a number of decisions of judges of the Family Court in relation to parenting orders. Three appeals filed by him are yet to be finalised. It appears that the husband has almost always appeared for himself both at first instance and on appeals. He has also, it seems, prepared his own Notices of Appeal.
On 20 February 2014 the wife filed an application for a divorce order in relation to the parties marriage which she asserted was solemnised in Egypt on 12 January 2002 in a religious ceremony that was then civilly registered with the Egyptian authorities on 16 January 2002.
On 27 June 2014 the husband filed a response opposing the making of a divorce order.
The proceedings were heard by Judge Dunkley on 7 October 2014 and his Honour made the order for divorce of the parties on 3 November 2014. The order was expressed to take effect and thus terminate the marriage on
4 December 2014.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals and Rule 22.03 prescribes the time within which an appeal is to be filed, namely 28 days from the making of the orders sought to be impugned.
The husband’s application seeking an extension of time in which to lodge an appeal against his Honour’s orders was filed on 26 February 2015. The affidavit in support of the application states:
The appellant was overseas and came back the 30 of January 2015, so that the time was extended to him to appeal that decisin (sic) was made on 3/11/2015 (sic), in 28 days since he got back to Australia.
Exhibited to the affidavit and marked “A” is an air ticket for the husband from Cairo to Sydney with an arrival date of 30 January 2015.
No explanation was given for the delay between the husband’s return to Australia and the filing of the application for extension of time.
The relevant principles to be applied in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990)
93 ALR 479. 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 the leave.
However, a discussion about the grounds and the merit of the proposed appeal is rendered unnecessary by the provision of s 93 of the Family Law Act 1975 (Cth) (“the Act”).
Section 93 provides:
An appeal does not lie from a divorce order after the order has taken effect.
This section has been the subject of discussion in a number of cases. In Price & Underwood (Divorce Appeal) [2009] FamCAFC 127 Boland and Ryan JJ concluded that once a divorce order has taken effect, it cannot be the subject of an appeal. In any event, the authorities are entirely clear; no appeal lies from the divorce order once it has taken effect. Any challenge that the husband would make does not lie in an appeal brought pursuant to s 94 of the Act.
Thus the husband’s contended appeal is incompetent and it would be futile to grant an extension of time in which to appeal the order.
While unnecessary, I note that even without the provision of s 93 of the Act, I would not have granted an extension of time in which to bring an appeal.
First, the explanation for the delay in bringing the appeal is wholly unsatisfactory. The husband’s contention, as can be seen from the application is that the rules which apply to others ought not apply to him and instead he should be entitled to bring an application at a time of his choosing.
The wife is entitled to the certainty and indeed the legal consequences of the divorce order taking effect. It is a judgment in rem, that is, once having taken effect, it affects the status of parties. Ms Fadel is entitled to marry again should she wish. There is a significant prejudice to her if the extension of time was given.
Thus, I will dismiss the husband’s application.
Costs
Although the wife was represented on the appeal, the solicitor appeared amicus curiae and thus no costs were sought.
I certify that the preceding twenty one (21) paragraphs are a true copy of the
reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
27 March 2015.
Associate:
Date: 27 March 2015
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