Jeffers and Jeffers - [2018] FamCAFC 57

FAMILY COURT OF AUSTRALIA

JEFFERS & JEFFERS

[2018] FamCAFC 57

FAMILY LAW – APPEAL – Application to extend time to appeal – With whom a child lives – Applicant seeks to appeal orders made for the children to live with the respondent and spend time with the applicant – Gallo v Dawson (1990) 93 ALR 479 and Joshua & Joshua (1997) FLC 92-767 considered – No mandatory requirement for the court to impose an equal time regime for children – Held no substantial issue to be determined on appeal – Delay greater than eight months with no adequate explanation – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31

APPLICANT:

Mr Jeffers

RESPONDENT:

Ms Jeffers

FILE NUMBER:

PTW

1659

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

28 March 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Moncrieff J

HEARING DATE:

28 March 2018

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

10 February 2017

LOWER COURT MNC:

[2017] FCWAM 37

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

The Application in an Appeal filed 30 November 2017 be dismissed.
There be no order as to costs.

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 Jeffers & Jeffers 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 PERTH

Appeal Number: WA 43 of 2017
File Number: PTW 1659 of 2015

Mr Jeffers

Applicant

And

Ms Jeffers

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The Court is asked to consider an application brought by Mr Jeffers (“the applicant”), the father of the parties’ two children, J and U, who are subject to orders made by Magistrate Tyson on 10 February 2017. The orders that are sought today are leave to extend the time in which the applicant has to file an appeal from the orders made by Magistrate Tyson to which I have referred.
The orders were pronounced on 10 February 2017. Her Honour gave detailed reasons for the orders that she made. The time for an appeal from those orders expired in March 2017. The application to extend the time for filing the appeal was filed on 30 November 2017, some eight months beyond the prescribed time in which the applicant had to lodge an appeal. The orders made by Magistrate Tyson are comprehensive.
In considering an application such as this there is a body of authority that must be considered. In particular, the decision of the High Court in Gallo v Dawson (1990) 93 ALR 479 and the judgment of McHugh J, which is frequently referred to in the context of applications such as this. Although it is a lengthy passage, I read the same out for the benefit of the parties. His Honour said at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
As I said, his Honour’s remarks have been frequently quoted and, in particular, paraphrased thus in Joshua & Joshua (1997) FLC 92-767 at 84, 440, where Lindenmayer J, after citing his Honour in Gallo & Dawson, said:
Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation.
So I turn to consider whether there is a substantial issue to be raised on appeal. In the proposed notice of appeal, the applicant’s ground of appeal is singular. He says “[T]he law was not applied in our case, specifically Shared Care - 2006”.
As I indicated to the applicant during the course of argument this morning, there is no mandatory requirement upon the court to impose a regime that children spend equal time with each parent. In the judgment delivered by her Honour, she took great care to properly identify and apply the principles to be applied in the determination of the dispute before her and to relate it to the care and time spent of the parties’ two children with each of them respectively.
Her Honour set out, in detail, the applicable law. In particular, her Honour applied the presumption provided under the Family Law Act 1975 (Cth) (“the Act”), pursuant to s 61DA, which she set out in her judgment. She defined precisely, in the judgment, and correctly, major long-term issues as contemplated by equal shared parental responsibility. Her Honour then went on to consider and identify that if she was satisfied that she should make an order for equal shared parental responsibility then she must consider the obligations placed upon her by s 65DAA of the Act which requires her, as she identified, “to then consider whether the child should spend equal time or substantial and significant time with each parent”.
Her Honour then went through detailed application of the considerations of what is in a child’s best interests and how the court determines it, and then gave a detailed consideration of the orders providing for the children to spend time with each of the parents, identifying her consideration as being pursuant to s 65AA given that she had made an order for equal shared parental responsibility.
Whilst I recognise that the threshold for the grant of such an application as this is relatively low, I am not satisfied that there is an identifiable substantial issue of law to be determined on appeal. Whilst it may be that there are matters arising from those orders that may require adjustment or, from time to time, review, that remains a matter that is firmly within the province of her Honour, particularly in terms of interpreting the orders upon the application of parties in the event they are unable to agree. In the event that it is appropriate that there be a review of the parenting orders in time due to a change of circumstance then, of course, the jurisdiction of the court is preserved.
However, even if I am wrong in this and there is a substantial issue of law to be determined on appeal, I have concerns about exercising the discretion in favour of the applicant for other reasons.
As I have identified, there was a delay of greater than eight months beyond the prescribed time in which the applicant had to appeal. His explanation for the delay is, with great respect, entirely unsatisfactory and is dealt with in a singular paragraph of his affidavit.
Whilst I do not doubt for one moment the genuineness of the issues that the applicant feels aggrieved by in terms of his concern for the parties’ children, I am not satisfied that the threshold requirements for the grant of the application has been met. Nor am I satisfied that even if I had been so satisfied, that I should exercise my discretion in his favour and, accordingly, the application will stand dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Moncrieff J delivered on 28 March 2018.

Associate:

Date: 30 April 2018