Maniadis & Bruce
[2022] FedCFamC1A 183
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Maniadis & Bruce [2022] FedCFamC1A 183
Appeal from: Orders dated 23 August 2022 Appeal number: NAA 242 of 2022 File number: PTW 1560 of 2018 Judgment of: AUSTIN J Date of judgment: 11 November 2022 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Application in an Appeal – Extension of time to file Notice of Appeal – Where the father seeks leave to appeal out of time against orders made in respect of the parties’ child – Where the father’s proposed appeal does not expose any substantial issue requiring consideration – Where the father’s unawareness of the limitation period is a misfortune not an advantage – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 65DAA Cases cited: Whitmore & Whitmore [2022] FedCFamC1A 75 Number of paragraphs: 13 Date of hearing: 11 November 2022 Place: Newcastle (via video link) The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 242 of 2022
PTW 1560 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MANIADIS
Applicant
AND: MS BRUCE
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
11 November 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 4 November 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maniadis & Bruce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 23 August 2022, a magistrate of the Magistrates Court of Western Australia made parenting orders between the applicant father and the respondent mother in respect of their only child, a daughter now aged six years. The orders were later amended under the slip rule on 7 September 2022, but not in a way which affects the current application.
Relevantly, the orders provide for the child to live with the mother and to spend substantial time with the father during school terms, in school holiday periods, and on other special occasions.
The time within which to appeal from the orders expired on 20 September 2022.
More than six weeks later, on 4 November 2022, the father filed an Application in an Appeal seeking leave to bring an appeal from the orders out of time. The application is articulated to be for an extension of time “to file documents including a Notice of Appeal”, but aside from the Notice of Appeal there is nothing else to file.
If permitted, the father intends to appeal only from the order specifying the amount of time the child is to spend with him, notwithstanding the time already fits well within the definition of “substantial and significant time” within s 65DAA(3) of the Family Law Act 1975 (Cth).
Legal principles
The legal principles by which an application to extend time to appeal is determined have been recited many times, but recently in Whitmore & Whitmore [2022] FedCFamC1A 75 in these summarised terms:
17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
As can be seen, the first inquiry is whether or not the proposed appeal will raise a substantial issue. If not, time will not be extended. If so, the grant of an extension of time depends upon other discretionary considerations, like the extent of the delay and the explanation given for it.
Disposition
In support of the application, the father relied upon his affidavit filed on 4 November 2022 and a draft Notice of Appeal dated 3 November 2022 (but accepted on 8 November 2022).
It is instructive to first go to the gravamen of the intended appeal. The draft Notice of Appeal contains 10 separate grounds of appeal, but nine of them are directed to the single proposition that the subject orders do not, in the father’s perception, provide for the child to spend time with him frequently enough. He is perturbed by the child not seeing him for more than four days at any one time, which regime differs from historical arrangements. The same complaint is articulated in the father’s affidavit. But no appealable error in the judgment is revealed simply because the orders change a pre-existing regime of interaction between the child and the father, nor because the father perceives the new arrangement to not be in the child’s best interests.
The tenth ground of appeal is simply a statement of the father’s confusion about the child’s fortnightly rotations at the commencement of each new school term and does not reveal any appealable error. The orders do not reasonably admit of such ambiguity. During school terms, in alternating weeks, the child spends designated time with the father in the first and second weeks. That cycle begins afresh each new school term.
The proposed appeal plainly does not expose any substantial issue requiring consideration. That is enough to dismiss the application, but there was little else to recommend it either. In respect of the delay and the explanation for it, the father deposed:
1.I sent a letter to the Family Court asking for an extension of time to file an appeal on the 7th of October. This was declined so i needed to facilitate developing the list of documents as soon as i could. This was executed three days later the 10th of October.
2.I was not aware there was a 28-day clause. During this time there was the school holiday period where these findings noted below where revealed. I was told by [the mother] on the 2nd of October that [the child] felt the way she did about coming to dad's as mentioned below. I decided to appeal the current orders once i digested the way [the child] had told her mother she felt.
…
7.… This happened on the September/October school holidays (just passed). [Name] the mother advised me on the day she dropped [the child] off that [the child] was really upset that she was going to stay with myself for eight consecutive nights. …
(Emphasis added)
The father’s unawareness of the limitation period is a misfortune rather than an advantage. When he first contemplated an appeal on or just before 7 October 2022, he was already more than two weeks out of time. His delay of another month in filing the application is entirely unexplained. It would seem his motivation for the proposed appeal is only something said to him by the mother about the child on 2 October 2022 during the most recent school holidays; not his own dissatisfaction with the orders or the reasons given for them.
The application does not survive application of the legal principles cited earlier and must be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 11 November 2022
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