Keshari and Ludhani - [2017] FamCAFC 248

FAMILY COURT OF AUSTRALIA

KESHARI & LUDHANI

[2017] FamCAFC 248

FAMILY LAW – APPEAL – Application to extend time within which to appeal – Delay in filing Notice of Appeal due to orders not being distributed promptly to parties – Father elected not to attend interim hearing – Family Law Magistrate entitled to make interim orders in father’s absence – Application dismissed.

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

APPLICANT:

Mr Keshari

RESPONDENT:

Ms Ludhani

FILE NUMBER:

PTW

3228

2017

APPEAL NUMBER:

2017

DATE DELIVERED:

21 November 2017

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

21 November 2017

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

5 July 2017

LOWER COURT MNC:

NA – Transcript of hearing

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

The application in an appeal filed 11 September 2017 be 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 Keshari & Ludhani 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 31 of 2017
File Number: PTW 3228 of 2017

Mr Keshari

Applicant

And

Ms Ludhani

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Mr Keshari (“the father”) has applied for an extension of time within which to appeal orders that Acting Family Law Magistrate De Maio made on 5 July 2017.
On 17 May 2017, Ms Ludhani (“the mother”) filed an application seeking parenting orders relating to the nine-year-old child of the parties (“the child”).
The matter came before the Acting Magistrate on 5 July 2017, at which time there was no attendance by the father, although there was on the Court file an affidavit confirming that the mother’s application and supporting affidavit were served on the father in town D on 7 June 2017.
The hearing proceeded in the absence of the father. The orders that were made provided that, until further order of the Court, the child should live with the mother and spend time with the father each alternate Sunday for two hours. The orders also provided, again until further order, that the mother have sole parental responsibility.
The orders further provided for the father to file a response within 28 days and the proceedings were adjourned to 17 October 2017 for directions. Personal service of the orders on the father was dispensed with, but no other form of service was directed.
The Court record reveals that the orders the subject of the proposed appeal were not posted to the parties until 7 August 2017, by which time the prescribed time in which to appeal had expired, as had the time in which the father was meant to file his responding documents. The father says he did not receive his copy of the orders until 13 August 2017.
The record further reveals that on 23 August 2017 the father wrote to the Court complaining that he “did not get any official information of the hearing, before the court on 5 July 2017 [sic]”. The father’s letter requested that the Court staff file the Notice of Appeal that accompanied his letter.
The proposed Notice of Appeal was properly rejected by the Appeals Registrar as being out of time. The Registrar’s letter to the father went on to explain how to seek an extension of time within which to appeal.
The application for an extension of time was filed on 11 September 2017.
On 10 October 2017, the father filed his responding documents in which he sought various interim and final orders, including shared parental responsibility and a shared care arrangement.
The proceedings came before Magistrate Martino on 17 October 2017, with both parties participating by telephone. At that time orders were made adjourning the proceedings to a Readiness Hearing on 20 April 2018, and requiring the parties to file documents in readiness for a trial.
The record does not indicate what occurred at the hearing other than that the proceedings were completed in less than 20 minutes and a note was made on the record asking court staff to provide copies of the father’s documents to him so that he could serve them on the mother. I have been informed this morning that the mother has now received those documents from the father.
I asked the father this morning whether he had requested the Magistrate on 17 October 2017 to set the matter down for an interim hearing, given that as yet there has not been a proper interim hearing of the parenting dispute. As best I can ascertain, no request was made to the Magistrate for an interim hearing because the father adopted the position that he had not been properly served with the documents originally, and I gather that he felt the appeal process was the better way to achieve his desired outcome.
In his affidavit sworn in support of today’s application, the father acknowledged that the mother’s initiating application and supporting affidavit had been served on him by what he described as security staff at the local courthouse. He went on to say (errors in original):
With financial hardship, in spite of my pelvis injury at workplace, I am self representing. My understanding was Family Court documents have to be served by post, email or process server. Hence I did not bother to communicate to attend hearing on 5 July 2017
The father’s application for an extension of time within which to appeal and his supporting affidavit were served on the mother on 31 October 2017. Ironically, the affidavit of service was sworn by the same person who served the father with the mother’s documents. I note the deponent describes his occupation on the affidavit as “bailiff”.
During the hearing today I explained to the father the difficulty he faces with his application. Being a self‑represented litigant, the father does not fully comprehend the way in which the system works, and understandably, but wrongly, thinks that there is something I might be able to do about his complaints. I will explain in a moment why this is not possible.
When a court is hearing an application for an extension of time in which to appeal, the court ordinarily considers the reasons for the delay and the potential merit in the proposed appeal. In this case, there is, of course, no need to consider the reason for the delay in the father filing his Notice of Appeal. As I have already explained, he was not at the hearing and by the time he received a copy of the Court orders, the time within which to appeal had expired. This is therefore a more than adequate explanation for the delay.
There is also no need to consider the father’s proposed Notice of Appeal and its potential merit, save to observe that the Grounds of Appeal take issue with the evidence on which the mother relied in seeking the orders that were made by the Acting Magistrate.
The problem with father’s application is that it is quite misconceived. The father elected not to attend the hearing before the Acting Magistrate even though he was properly served almost a month prior to the hearing. As a result, the Acting Magistrate was perfectly entitled to proceed on the basis of the evidence placed before her by the mother. In fact, the Acting Magistrate would have been in error had she proceeded on any other basis.
Furthermore, the orders made by the Acting Magistrate were expressed to be “until further order” and it was clearly anticipated that the father might come back to the Court to argue his case once he had filed his responding documents. The hearing on 17 October 2017 would have provided an opportunity for directions to be made for the listing of such an argument but, as I have said, the father by that stage had not even served his responding documents.
It appears the Magistrate on 17 October 2017 properly dealt with the matter as the father did not request an interim hearing and the Magistrate therefore did the only thing that was sensibly available to him, and that was to send the matter on for a trial in front of a judge or a magistrate.
I have attempted this morning to explain to the father that I do not wish to get caught up too much in the legalese and court processes but rather to focus on the most important issue here: what is to happen in relation to the father spending time with the child. I have pointed out to the father that the sensible course for him now is to write to the Court, asking for the Magistrate who now has the conduct of the matter to list his application seeking interim orders so that there can be proper consideration of arrangements prior to the trial, which is not likely to occur until late next year.
I have also explained to the father that it will be a matter for the presiding Magistrate to decide if and when a hearing is to be allocated. The Magistrate may take into account the fact that the father has had certainly one and perhaps two opportunities to have an interim hearing, and that it has been his decision not to take up those opportunities. If, upon receiving a request from the father as foreshadowed, the Magistrate is satisfied there should be an interim hearing then the parties will be notified of a hearing date.

Order

For those reasons, the father’s application will be dismissed.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Thackray J delivered on 21 November 2017.

Associate:

Date: 22/11/17