MALAK & MAIRIE - [2012] FamCAFC 155

FAMILY COURT OF AUSTRALIA

MALAK & MAIRIE

[2012] FamCAFC 155

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the applicant seeks an extension of time to file a Notice of Appeal against the interim order made on 24 November 2011 suspending telephone contact – where the application is opposed by the respondent – where the applicant is in prison awaiting sentencing for criminal charges to which he pleaded guilty in February 2012 – where those charges comprise sexual offences against his three year old child from his subsequent marriage – where there is an adequate explanation for the failure of the applicant to comply with the timeframe for the filing of a Notice of Appeal – where the grounds of appeal as set out in the applicant’s draft Notice of Appeal have no chance of success reasonable or otherwise – where there is no substantial issue to be determined on appeal – where each party will be prejudiced in some way depending on the result – where the justice of the case dictates that the application should be dismissed – application dismissed.

Family Law Act 1975 (Cth) s 94(1), (1A), (2D), (2E), (2F)
Family Law Rules 2004 (Cth) ch 22, rr 22.02, 22.03, 22.11

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Malak

RESPONDENT:

Ms Mairie

APPEAL FILE NUMBER:

SOA

2012

FILE NUMBER:

MLC

2355

2010

DATE DELIVERED:

20 September 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

18 June 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 November 2011

LOWER COURT MNC:

[2011] FamCA 891

REPRESENTATION

FOR THE APPLICANT:

In Person

FOR THE RESPONDENT:

In Person

Order

The application in an appeal filed by the father on 18 January 2012 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malak & Mairie 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 ADELAIDE

Appeal Number: SOA 7 of 2012
File Number: MLC 2355 of 2010

Mr Malak

Applicant

And

Ms Mairie

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an application in an appeal filed by the father on 18 January 2012 seeking in effect an extension of time to file a Notice of Appeal against one of a number of parenting orders made by Cronin J on 24 November 2011.
The application is opposed by the mother.
This application was first heard by me on 21 March 2012, when as a result of communication issues that arose between the Family Court of Australia Registry in Melbourne and a Correctional Centre, the application had to be adjourned to
2 April 2012. That issue is detailed in my ex tempore reasons for judgment delivered on 21 March 2012, and I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MALAK & MAIRIE

Details

AGLC: MALAK & MAIRIE [2012] FamCAFC 155
Case: [2012] FamCAFC 155
Decision Date: 20 September 2012

CaseChat Overview and Summary

In this case, Mr Malak sought an extension of time to file a Notice of Appeal against an interim order made by Cronin J on 24 November 2011, which suspended telephone contact between him and his children. The application was opposed by Ms Mairie. The matter was heard by Strickland J on 18 June 2012. The key legal issues that the court had to decide included whether there was an adequate explanation for the delay in filing the Notice of Appeal, whether there was a substantial issue to be raised on appeal, and the consequences for the parties of the grant or refusal of the application.

The court found that there was an adequate explanation for the delay in filing the Notice of Appeal, as the father was unable to comply with the timeframe due to a combination of factors including the time it took to provide him with a copy of the orders and reasons for judgment, the limitations of the criminal prison system, and the Christmas period. However, the court also found that the grounds of appeal set out in the father's draft Notice of Appeal had no chance of success, and there was no substantial issue to be determined on appeal. Furthermore, the court considered the consequences for both parties if the application was granted or refused, and concluded that the interests of justice dictated that the application should be dismissed.

In light of the above, the court dismissed the application for an extension of time to file a Notice of Appeal. This decision means that Mr Malak will not be able to pursue an appeal against the interim order, and Ms Mairie will not have to deal with an ongoing appeal process.

Orders