LUO & LIEW - [2015] FamCAFC 129

FAMILY COURT OF AUSTRALIA

LUO & LIEW

[2015] FamCAFC 129

FAMILY LAW – APPEAL – Application to extend time to appeal – Where the registry received the mother’s Draft Notice of Appeal one day late – Where there is a reasonable explanation for the delay – Where there is sufficient merit in the appeal that granting an extension of time would not be futile – Whether the father would be prejudiced if leave is granted – Application allowed.

GallovDawson (1990) 93 ALR 479

APPLICANT:

Ms Luo

RESPONDENT:

Mr Liew

FILE NUMBER:

PAC

743

2008

APPEAL NUMBER:

2015

DATE DELIVERED:

4 June 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

4 June 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

30 March 2015

LOWER COURT MNC:

[2015] FCCA 624

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Liew in person

SOLICITOR FOR THE RESPONDENT:

James Papas Solicitors

Orders

The Applicant is granted an extension of time in which to file a Notice of Appeal against the orders of Judge Dunkley of 30 March 2015 and is to be filed by no later than 4:00 pm on 18 June 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Luo & Liew has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 62 of 2015
File Number: PAC 743 of 2008

Ms Luo

Applicant

And

Mr Liew

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 1 May 2015, Ms Luo (“the mother”) seeks an order extending time in which to file a Notice of Appeal.
On 30 March 2015, Judge Dunkley made final parenting orders in proceedings between the mother and Mr Liew (“the father”). Judge Dunkley ordered that the mother’s application to vary the existing parenting orders concerning their son (“the child”), aged 12, be dismissed. The effect of that order is that the child will continue to live with his father in Sydney, and spend time with his mother, who lives in Melbourne, as agreed, or in absence of agreement, for the first half of each school holiday period.
Any Notice of Appeal from that decision should have been filed within 28 days of 30 March 2015, namely, by 28 April 2015. On 24 April 2015, the mother sent the Draft Notice of Appeal to the appeals registry in Sydney by express post from the post office at Suburb W. It was received by the registry on the 29^th day after the judgment. That is just one day late. The father opposes the extension of time sought, pointing not so much to the delay, but pointing to what he submitted, were deficiencies in the grounds of appeal.
The parties married in 2001, separated in 2004 and divorced in 2007. On 15 February 2008, the father filed an Initiating Application seeking orders for equal shared parental responsibility for the child, that the child live with the mother and spend time with the father. At this time, the parties were both living in Sydney. By the time the matter came on for hearing, the mother had moved to Melbourne. For a period, the child lived with her, but by 13 October 2009, the date of the hearing, the child had returned to Sydney and was living with his father. The mother did not appear at the hearing, but did file an affidavit, which was taken into account by the trial judge.
In 2009, the trial judge then ordered the parties to have equal shared parental responsibility for the child, that the child live with his father and spend time with the mother. At the hearing in January 2015, the trial judge considered that a number of changes had occurred since October 2009, including the child progressing from being a child to being a teenager. Those changes warranted the decision as to what was in the child’s best interests being determined on all of the evidence after a full hearing.
The trial judge noted the mother’s concerns about the child’s health and especially his weight. The trial judge found that the child had adjusted to his father remarrying and the birth of his two half-siblings, who he loves. The child’s greatest desire was found to be that he wished his mother to return to Sydney so that he could spend more time with her. The mother has a house in Melbourne and is studying there. She will not return to Sydney. Thus, if the orders sought by her were made, the child would need to move to Melbourne.
The trial judge found that living in Sydney with his father would be in the child’s best interests. This would maintain his relationships with his maternal grandmother, his half-siblings and school peers, all of which were important to him. Any change to his present circumstances was to be avoided unless the change was found to be overwhelmingly beneficial. His Honour found that any change occasioned by moving to live with his mother would be neither better nor worse for the child, therefore he dismissed the mother’s application.
The principles to be applied in an application for an extension of time are set out in GallovDawson (1990) 93 ALR 479. An extension of time is not automatic and involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave, and the merits of the appeal.
The delay in filing the Draft Notice of Appeal was but one day. Whilst the father opposed the extension of time, he did not point to any prejudice that flowed from that delay and did not properly address any submissions to that issue. The explanation given by the mother as to why the Draft Notice of Appeal was not filed within the prescribed time is reasonable. Ordinarily, a letter posted in Suburb W on 24 April 2015 by express post would have reached the registry on or before 28 April 2015. The mother acted promptly in bringing the present application.
The mother challenges the trial judge’s exercise of discretion. As far as can be seen from the Draft Notice of Appeal, there is no challenge to his Honour’s findings of fact or application of principle. The challenge to the judgment must, therefore, pass a high hurdle. The consideration of the merits of an appeal on this application is necessarily truncated by the limited documents presently available to the court. The father submits that the documents filed by the mother disclose no grounds in relation to the orders made by Judge Dunkley, and that the father ought not be put to further costs and expense in responding to the appeal.
The Draft Notice of Appeal, under the heading ‘grounds of appeal’, simply contains a reference to the orders sought. The final orders sought clearly identify the orders that the mother seeks, namely, that the child live with her and spend time with the father as specified. It follows necessarily from that, that the only challenge identified to the judgment is the overall exercise of his Honour’s discretion, which, as I have said, must pass a high hurdle. There is force in the father’s submissions, but accepting that the applicant prepared the Draft Notice of Appeal herself, the deficiency in the Draft Notice of Appeal is not fatal.
An applicant should not be denied the right to have an appeal heard unless it is clear that the appeal must fail. I am not satisfied that the proposed appeal is so lacking in the merit that the appeal must fail, notwithstanding that, at present, the grounds are not clearly identified.
There is, of course, a general prejudice suffered by the father if any extension of time is granted.
Taking these matters into account, it is appropriate for the application to be granted. As I have said, the Draft Notice of Appeal does not identify the grounds. That is something that should be rectified prior to the filing, and, as the applicant is acting for herself, a slightly longer time for filing of the Notice of Appeal will be allowed.
Accordingly, I will order that the applicant is granted an extension of time in which to file a Notice of Appeal against the orders of Judge Dunkley of 30 March 2015 which is to be filed by no later than 4:00 pm on 18 June 2015.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 4 June 2015.

Associate:

Date: 30 June 2015