JB & BW (APPLICATION TO EXTEND TIME TO APPEAL)

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FAMILY COURT OF AUSTRALIA

JB & BW (APPLICATION TO EXTEND TIME TO APPEAL) [2010] FamCAFC 144

FAMILY LAW – PROPERTY – APPLICATION TO EXTEND TIME TO APPEAL –
Where appellant sought to appeal enforcement and contravention proceedings some 10 years after orders made – Where appellant sought to argue that jurisdiction was not available to trial judge (who dealt with the enforcement and contravention proceedings) to make orders by virtue of proceedings being stayed by the Bankruptcy Act 1966 (Cth) (in operation at the relevant time) because of the appellant’s bankruptcy – Trial judge could make such orders because the wife was a secured creditor on the terms of the orders made by the trial judge (who dealt with the substantive property proceedings initially)

FAMILY LAW - CONSTITUTIONAL INTERPRETATION – Where appellant sought to question the constitutional validity of the Family Law Act 1975 (Cth) and the jurisdiction of the Family Court of Australia – Where appellant alleged that the judges of the Family Court of Australia did not act in accordance with their constitutional duties pursuant to Chapter III of the Australian Constitution – Assertions rejected

FAMILY LAW - AUTHORITY OF THE FAMILY COURT OF AUSTRALIA – Where appellant sought to quash or appeal orders of the Full Court of the Family Court – No power to perfect orders entered on the record by the Full Court of the Family Court – Application of DJL v The Central Authority (2000) 201 CLR 226 – A trial judge of the Family Court may ascertain jurisdiction to hear a matter – The Full Court of the Family Court may set aside final and binding orders of a trial judge of the Family Court – Application of Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor (2004) 219 CLR 365 – Assertions rejected

INTERNATIONAL LAW AND COMMON LAW – Application of principles of international human rights law  – Where appellant alleged breach of right to a fair trial by virtue of not being legally represented – Consideration of Dietrich v The Queen (1992) 177 CLR 292 – No right to legal representation in civil proceedings at the public expense – Assertion rejected

FAMILY LAW – APPEAL - APPLICATION OF Gallo & Dawson (1990) 93 ALR 479 – No substantive grounds of appeal raised warranting extension of time being granted – No prospects of a successful appeal – Application dismissed

Australian Constitution: s 51, Chapter III, s 73(ii), s 75(v)
Bankruptcy Act 1966 (Cth) (point in time): s 58, s 59, s 60
Corporations Act 2001 (Cth): s 232, s 436A, s 588G, s 596
Family Law Act 1975 (Cth): s 26, s 43, s 61C, s 75, s 79, s 94(1), s 94(2D), s 112AD, s 118(1)
Family Law Rules 2004: R 1.14, R 22.03
Judiciary Act 1903 (Cth): s 78, s 79, s 80

International Covenant on Civil and Political Rights, opened for signature, ratification and accession on 16 December 1966, 999 UNTS 171 (entered into…

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Details
Case
[2010] FamCAFC 144
Decision Date

CaseChat Overview and Summary

The case involves an appellant who sought to appeal enforcement and contravention proceedings initiated some ten years prior. The appellant challenged the orders made by Justice Guest on multiple grounds, including the jurisdiction of the trial judge and the constitutionality of the Family Law Act 1975 (Cth). The appellant also questioned the authority of the Full Court of the Family Court of Australia and alleged a breach of their right to a fair trial due to the absence of legal representation. The court had to decide whether the appellant's application to extend the time to appeal should be granted and whether the appellant's arguments concerning jurisdiction, constitutionality, authority, and fair trial rights were valid.

The court began by addressing the appellant's jurisdictional argument, noting that the trial judge had the authority to make the orders because the wife was a secured creditor. The court rejected the appellant's claim that the trial judge lacked jurisdiction due to the Bankruptcy Act 1966 (Cth). Regarding the constitutionality of the Family Law Act and the jurisdiction of the Family Court of Australia, the court dismissed the appellant's assertions, holding that the judges of the Family Court of Australia acted in accordance with their constitutional duties. The court also found that the Full Court of the Family Court had the power to set aside final and binding orders of a trial judge and that there was no power to perfect orders entered on the record by the Full Court. The court dismissed the appellant's argument about the right to legal representation in civil proceedings, stating there was no such right at public expense.

The court concluded that the appellant's application to extend the time to appeal should be dismissed as there were no substantive grounds warranting such an extension. The court found that the appellant had no prospects of a successful appeal and therefore rejected the application. The court further ordered that the application filed on 23 January 2009 be dismissed, along with any further applications related to this matter in either the original or appellate jurisdiction of the Family Court of Australia. The matter was removed from the pending cases inventory, and a judge was appointed to manage any further applications by the appellant.

Orders

Orders of the court

IT IS ORDERED THAT:

1.

The Application in a Case (so relied upon incorrectly as to form by the appellant) filed on 23 January 2009 is dismissed, and the application to extend time in which to appeal against the orders of Justice Guest of 26 May 1999, 21 October 1999 and 10 November 1999 is dismissed.

2.

A Judge be appointed to manage any further application filed by the appellant either in the original jurisdiction or appellate jurisdiction of the Family Court of Australia, and that Judge be Deputy Chief Justice Faulks, if he is reasonably available.

3.

All extant applications in either the Original or Appellate jurisdiction of the Family Court of Australia in relation to this matter are dismissed.

4.

The matter is removed from the pending cases inventory.

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

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