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 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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 JUDGMENT
AUSTIN 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…

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 Maniadis & Bruce

Details

AGLC: Maniadis & Bruce [2022] FedCFamC1A 183
Case: [2022] FedCFamC1A 183
Decision Date

CaseChat Overview and Summary

In Maniadis & Bruce, the father appealed against parenting orders made by the Magistrates Court of Western Australia in relation to his six-year-old daughter. The court dismissed the father's application for an extension of time to appeal these orders, finding that the proposed appeal did not expose any substantial issue requiring consideration. The father sought to appeal the amount of time the child was to spend with him, arguing that it did not fit well within the definition of "substantial and significant time" under the Family Law Act 1975 (Cth). However, the court found that the orders already fit within the definition and that the father's perception of the orders not being in the child's best interests did not reveal any appealable error. The court also noted that the father's unawareness of the limitation period was a misfortune rather than an advantage and that his delay in filing the application was unexplained.

The legal issues in this case centered around the principles governing applications to extend time to appeal and whether the proposed appeal raised a substantial issue requiring consideration. The court found that the proposed appeal did not expose any substantial issue, as it was based on the father's perception of the orders rather than any appealable error. The court also considered other discretionary factors, such as the extent of the delay and the explanation given for it, and found that the father's unawareness of the limitation period was a misfortune rather than an advantage. The father's delay in filing the application was also unexplained, and his motivation for the proposed appeal seemed to be based on something said to him by the mother about the child rather than his own dissatisfaction with the orders or the reasons given for them. The court dismissed the application, finding that it did not survive application of the legal principles.

The court's reasoning in this case was based on the legal principles governing applications to extend time to appeal, which require the applicant to demonstrate that there is a substantial issue to be raised in the appeal. The court found that the proposed appeal did not expose any substantial issue, as it was based on the father's perception of the orders rather than any appealable error. The court also considered other discretionary factors, such as the extent of the delay and the explanation given for it, and found that the father's unawareness of the limitation period was a misfortune rather than an advantage. The court dismissed the application, finding that it did not survive application of the legal principles. The court's outcome in this case was that the father's application for an extension of time to appeal the parenting orders was dismissed.

In conclusion, the Federal Circuit and Family Court of Australia dismissed the father's application for an extension of time to appeal parenting orders made by the Magistrates Court of Western Australia. The court found that the proposed appeal did not expose any substantial issue requiring consideration and that the father's unawareness of the limitation period was a misfortune rather than an advantage. The court also considered other discretionary factors, such as the extent of the delay and the explanation given for it, and found that the father's delay in filing the application was unexplained. The court dismissed the application, finding that it did not survive application of the legal principles.

Orders