Noack &Noack
[2018] FamCAFC 221
•19 November 2018
FAMILY COURT OF AUSTRALIA
| NOACK &NOACK | [2018] FamCAFC 221 |
| FAMILY LAW – APPLICATIONS IN AN APPEAL – EXTENSIONS OF TIME – Where the applicant seeks extensions of time to file Notices of Appeal – Where the applications are opposed – Where there is no satisfactory explanation provided by the applicant for failing to file Notices of Appeal within time – Where none of the proposed appeals have merit – Where there is prejudice to both parties depending on the result – Where the interests of justice require that the Applications in an Appeal be dismissed – Applications dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479 McMahon and McMahon (1976) FLC 90-038 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Noack |
| RESPONDENT: | Ms Noack |
| INDEPENDENT CHILDREN’S LAWYER: | Wayne Dunstan |
| FILE NUMBER: | MLC | 3650 | of | 2013 |
| APPEAL NUMBERS: | SOA | 51 | of | 2018 |
| SOA | 53 | of | 2018 | |
| SOA | 54 | of | 2018 | |
| SOA | 78 | of | 2018 |
| DATE DELIVERED: | 19 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 15 November 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 3 May 2018 25 September 2017 |
| LOWER COURT MNC: | [2018] FCCA 1390 NA – Transcript only NA – Transcript only NA – Transcript only |
REPRESENTATION
| THE APPELLANT: | In Person |
| THE RESPONDENT: | No appearance |
| INDEPENDENT CHILDREN’S LAWYER | No appearance |
Orders
The Amended Application in an Appeal filed on 2 August 2018 in appeal no. SOA 51 of 2018 be dismissed.
The Application in an Appeal filed on 2 August 2018 in appeal no. SOA 53 of 2018 be dismissed.
The Application in an Appeal filed on 2 August 2018 in appeal no. SOA 54 of 2018 be dismissed.
The Application in an Appeal filed on 2 November 2018 in appeal no. SOA 78 of 2018 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 Noack & Noack 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Numbers: SOA 51, 53, 54 and 78 of 2018
File Number: MLC 3650 of 2013
| Mr Noack |
Applicant
And
| Ms Noack |
Respondent
REASONS FOR JUDGMENT
Introduction
There are four Applications in an Appeal filed by Mr Noack (“the applicant”) now before the court.
In the Amended Application in an Appeal filed on 2 August 2018 in appeal no. SOA 51 of 2018, and in the Applications in an Appeal filed on 2 August 2018 in appeal nos. SOA 53 and SOA 54 of 2018, the orders sought are for extensions of time to appeal against orders made by Judge McNab on 3 May 2018, 25 September 2017, and 20 November 2017 respectively.
In the Application in an Appeal filed on 2 November 2018 in appeal no. SOA 78 of 2018, the orders sought do not seek an extension of time to file an appeal against the orders made by Judge McNab on 11 August 2017, but instead, the orders sought are orders that can only be made on a successful appeal against those orders. However, as confirmed with the applicant, what he in fact seeks is an extension of time to appeal against those orders, and I propose to treat the Application in an Appeal as seeking that order.
On 13 September 2018, Ms Noack (“the respondent”) filed Responses to the Applications in an Appeal in appeal nos. SOA 51, SOA 53 and SOA 54 of 2018, and in those Responses the respondent sought dismissal of the applications. The respondent did not file a Response to the Application in an Appeal filed in SOA 78 of 2018, but that is understandable given that that application has only recently been filed, and I am unaware of whether it has been served on the respondent. In any event, I propose to proceed on the basis that the respondent also seeks dismissal of that application.
I note that the respondent was not able to attend the hearing in this matter, given that she had another commitment which prevented that attendance. In that regard, originally the applications were listed for hearing on Wednesday 21 November 2018, but as a result of other commitments on that day, the hearing was moved to Thursday 15 November 2018.
The Independent Children’s Lawyer took no part in the appeal.
Background
In order to put these Applications in an Appeal into context, it is necessary to set out some of the background to this matter as follows.
During the course of a two day hearing before Judge McNab commencing on 10 August 2017, the parties and the Independent Children’s Lawyer (“ICL”) reached agreement, and on 11 August 2017 consent orders were made about the parenting arrangements for the two children of the relationship. In general terms the parties were to have equal shared parental responsibility for the children, the children were to live with the respondent, and they were to spend time with the applicant.
That consent order is the subject of the Application in an Appeal filed on 2 November 2018 in appeal no. SOA 78 of 2018.
The matter then came before his Honour on 25 September 2017 in relation to a question of the interpretation of one of the orders made on 11 August 2017, providing for the applicant to attend upon a clinical psychologist, as nominated by the ICL, for counselling. His Honour amended the relevant order to resolve the issue.
That order is the subject of the Application in an Appeal filed on 2 August 2018 in appeal no. SOA 53 of 2018.
On 20 November 2017 the matter again came before his Honour after the applicant apparently failed to return the children to the respondent in accordance with the orders made on 11 August 2017, and there was an application by the respondent for a recovery order to issue. His Honour made an ex parte order providing for the applicant to deliver the children to a nominated place, and if he failed to do so, then a recovery order was to issue. His Honour also suspended until further order the orders providing for the children to spend time with the applicant, and then adjourned the matter to 27 November 2017.
On 27 November 2017 his Honour continued, until further order, the suspension of the orders providing for the children to spend time with the applicant, subject to there being supervised time on 24 December 2017. His Honour also provided for the applicant to attend upon a clinical psychiatrist for an independent psychiatric evaluation, and listed the matter for a contested interim hearing on 3 May 2018.
On 3 May 2018 his Honour transferred the proceedings to the Family Court of Australia, and ordered that until further order the children spend no time with, and have no communication with the applicant, unless agreed to by the respondent and the ICL.
The Evidence
In support of his Applications in an Appeal the applicant relied on a number of affidavits, but the two affidavits filed in support of his Amended Application in an Appeal on 2 August 2018 in appeal no. SOA 51 of 2018, were the same as the two affidavits filed in support of each of his other Applications in an Appeal filed on 2 August 2018 in appeal nos. SOA 53 and SOA 54 of 2018.
None of the affidavits filed addressed the issues that this Court has to consider in determining whether extensions of time should be granted to file Notices of Appeal against orders sought to be challenged. Further, much of the content of his affidavits was inadmissible, including the annexures thereto. The annexures comprise copies of text messages, letters from the children, and affidavits and statutory declarations from third parties, yet none of the contents thereof are relevant to the applications before the court.
In general terms the affidavits go to the alleged rights of the applicant and the children, the relationship between the applicant and the children, and what has allegedly happened since the orders the subject of the Applications in an Appeal have been made. There is nothing about why the Notices of Appeal were not filed in time, the prospects of success of the proposed appeals, or the prejudice to the parties depending upon whether the applications are allowed or refused, namely, the primary factors to be considered in determining such applications, as will become apparent shortly.
To provide the flavour of these affidavits, the opening paragraphs of those filed on 2 August 2018 are as follows:
1.As a parent I am entitled as a parent to have access to my children. I do not consent to this courts (sic) interference as I have committed no crimes and state that this court to date has acted with bias, ignored the common law rights of my children, myself, and the acts that govern them.
And:
1.I state my name is on my children’s birth certificate as their father.
I state that I have not committed any crime.
I state that no court has any jurisdiction over me or my children under these circumstances.
We stand under and rely on the United nations Convention on the Rights of the Child, Covenant of Civil and Political Rights and various High Court precedents. …
The applicant pursued these and similar themes in his oral submissions to the court when he was asked what his complaints were about the orders that he seeks to challenge. For example he said as follows:
I don’t understand when, in caveman speak, my children are my property and you guys have trespassed my property. No-one has given anyone the right to take my property.
I was born of free status because it comes from God. No man or woman is bound by any private or public corporation formed by people who are not God. I have not harmed. I have not harmed my fellow man in violation of God’s law and the Holy Bible. Bible law, that is common to all law and it’s all based on that.
I am not an Australian citizen because I do not recognise the Queen of Australia, which your statutes are under. Nor does this fictitious entity have any legal standing in the Commonwealth. We all know that there is no such thing as the Queen of Australia.
The applicable principles
The principles to be applied in determining applications for extension of time are well settled. For example, in the High Court decision of Gallo v Dawson (1990) 93 ALR 479, McHugh J said this at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
That decision has been followed in a number of Full Court cases including McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
Thus, the fundamental issue is whether an extension of time is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to be taken into account. For example, whether there are adequate reasons which explain the failure to file the Notice of Appeal within the requisite 28 day time period, whether there is a substantial issue to be raised on appeal, or to put it another way, whether the appeal has any merit, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the nature of the litigation, the history of the proceedings, the conduct of the parties, and the consequences for the parties of the grant or refusal of the application.
In this case the factors to be considered are whether there are adequate reasons which explain the failure to file the Notices of Appeal within the requisite 28 day time period, whether the proposed appeals have any merit, and the consequences for the parties of the grant or refusal of the applications.
Discussion
The Application in an Appeal to extend time to appeal against the orders made on 11 August 2017.
Adequate explanation
The reasons proffered by the applicant for failing to file a Notice of Appeal within the 28 day timeframe provided for in the Family Law Rules 2004 (Cth) (“the Rules”) is that as he was “self-represented” and could not “afford a lawyer”, he did not “realise that there was a 28 day time limit to lodge an appeal”. Further, he says that “it took quite some time to research how to lodge an (sic) judicial review and to find the time (sic) get back to the Family Court (sic) speak to registrar and to lodge forms”. Indeed, these reasons are the same reasons that he proffers as an explanation for why he failed to file Notices of Appeal within the 28 day time period in relation to all of the orders that he challenges.
It is an easy claim to make to say that you did not realise that there was a 28 day time limit to file an appeal, but there is nothing in any of the applicant’s affidavits, or in his oral submissions, that explains what he did to ascertain how he goes about challenging orders of the court that he plainly now disagrees with, nor when, or under what circumstances, he became aware of the 28 day time limit, or what he then did about it.
Further, his second reason suggests that he made a conscious decision not to appeal until he had undertaken the necessary research, and of course, there is no detail provided by him of what he did by way of research.
These are not reasons that provide either an adequate or a satisfactory explanation for the failure to file the Notices of Appeal within time. The onus is on every litigant, even if unrepresented, to ascertain what is required to pursue matters in court. As McHugh J said in Gallo v Dawson at 481, “[l]ack of legal knowledge is a misfortune, not a privilege”.
The merits of the proposed appeal
The “grounds of appeal” set out in the applicant’s draft Notice of Appeal are as follows:
1.The Judge acted under assumption, ignored common law and international conventions that bind the court. His actions and behaviour render the order ultra vires
2.Judge was not impartial, ignored evidence. He acted in a discriminatory fashion, made assumptions that were were (sic) biased, and ignored my right to be heard
3.Judge perverted the course of justice by not allowing me to state my case or listen to expert witnesses, breaching the rules of natural justice
However, none of these proposed “grounds of appeal” have any foundation. The parenting orders were orders made by consent during the course of a two day hearing before his Honour. They are not orders made by his Honour after hearing all of the evidence and the submissions of the parties, making findings, and then making orders on the basis of those findings, in contested proceedings.
The consent orders were made after the family report writer and the respondent had given evidence, and the issues were canvassed in open court. There was then an adjournment of over one hour and the parties advised his Honour that they had reached agreement. The terms of that agreement were then worked through and the consent orders were made.
Thus, in my view, none of the proposed grounds of appeal have any merit.
The consequences of granting or refusing the application
If the application is allowed then plainly the respondent will suffer prejudice. She currently has the benefit of the orders, albeit there have been some amendments thereto made subsequently, but if the application is allowed and an appeal proceeds, the respondent will have to expend time and perhaps incur expense in dealing with that appeal.
On the other hand, if the application is refused, then undoubtedly there will be prejudice to the applicant. There is no appeal from a refusal of such an application, save and except by way of seeking special leave to appeal to the High Court of Australia. That is understandably a difficult exercise and sometimes is not warranted in the circumstances of the case, and thus for that to be the only avenue for the applicant to pursue is a serious prejudice to him.
Conclusion
As the authorities recognise, the court’s consideration of the relevant factors informs the court in determining the fundamental issue, namely, where the justice of the case lies.
Here, I have found that the applicant has not provided an adequate explanation for his failure to file a Notice of Appeal within the prescribed time, and that the proposed appeal has no merit. The only factor in the applicant’s favour is the prejudice to him if the application is refused, but that does not necessarily outweigh the prejudice to the respondent if the application is granted.
This is a clear case where the interests of justice requires that the application seeking an extension of time to file a Notice of Appeal against the orders made on 11 August 2017 be dismissed, and that is the order that I propose.
The Application in an Appeal to extend time to appeal against the orders made on 25 September 2017
Adequate explanation
As I have found already, the reasons proffered by the applicant for failing to file Notices of Appeal within time in relation to any of the orders that he seeks to challenge are not adequate, and that applies here as much as in the other applications.
The merits of the appeal
The “grounds of appeal” set out in the applicant’s draft Notice of Appeal are as follows:
1. Judge denied my right to be heard - Natural justice
2. Court is denying my sons (sic) right right (sic) to be heard
3.Judge ignored relevant evidence, binding Acts, High Court Precedents and United Nations International Conventions
4 Judge and ICL have been acting with presumption.
5Court is acting beyond the jurisdiction, ignoring constitutional rights, civil liberties as per Bill of Rights and binding UN conventions.
6 Court is not acting in the best interests of children
7 Court is ignoring wishes of children and
8[The children] are to reside where they see it is in their best interest to do so
In considering these proposed grounds of appeal it is necessary to appreciate the orders that are the subject of the proposed appeal. They were the orders that varied the consent order of 11 August 2017, in relation to the applicant’s attendance upon a clinical psychologist.
Given that, it is impossible to see any correlation between those orders and the proposed grounds of appeal. Accordingly, I sought to clarify with the applicant what his real complaint with these orders was, and he indicated that the trial judge had no “jurisdiction” to make them. Then, in reply to my question as to what he meant by that, he said things like, the orders contravened the Judiciary Act 1903, the Victorian “Bill of Rights”, the Magna Carta and the “Vienna Treaties” including in relation to the right to self-determination, the “no harm” principle, common law precedents, and that his Honour had contravened his Oath of Allegiance.
The appellant’s arguments focussed on the proposition that no court has any jurisdiction over him or his children, and specifically the trial judge had no ability to tell him what to do.
These submissions are of course all nonsense, and it is plain that there is no possibility of the appellant being successful in an appeal based on them. Accordingly, I find that there is no merit in this proposed appeal.
The consequences of granting or refusing the application
The same considerations apply here as outlined above, namely that depending upon the result, each of the parties will suffer prejudice.
Conclusion
Again, the issue here is where does the justice of the case lie?
I have found that the applicant has not provided an adequate explanation for his failure to file a Notice of Appeal within the prescribed time and that the proposed appeal has no merit. Again, the only factor in the applicant’s favour is the prejudice to him if the application is refused, but that does not necessarily outweigh the prejudice to the respondent if the application is granted.
Once again, I find that this is a clear case where the interests of justice require that the Application in an Appeal seeking an extension of time to file a Notice of Appeal against the orders made on 25 September 2017 should be dismissed, and that is the order that I propose.
The Application in an Appeal to extend the time to file a Notice of Appeal against the orders made on 20 November 2017
Adequate explanation
I repeat my finding that no adequate or satisfactory explanation has been provided by the applicant for his failure to file the Notice of Appeal within time.
The merits of the appeal
Here, the “grounds of appeal” were precisely the same as in the previous draft Notice of Appeal, and were as follows:
1. Judge denied my right to be heard - Natural justice
2. Court is denying my sons (sic) right right (sic) to be heard
3.Judge ignored relevant evidence, binding Acts, High Court Precedents and United Nations International Conventions
4 Judge and ICL have been acting with presumption.
5Court is acting beyond the jurisdiction, ignoring constitutional rights, civil liberties as per Bill of Rights and binding UN conventions.
6 Court is not acting in the best interests of children
7 Court is ignoring wishes of children and
8[The children] are to reside where they see it is in their best interest to do so
The applicant’s arguments in relation to this proposed appeal are the same as in relation to the previous proposed appeals, namely that what the trial judge did was to breach various statutes including the Magna Carta and the Bill of Rights, and International treaties, and his Honour’s Oath of Allegiance. Further, here the applicant claimed that what the trial judge did was “unconstitutional” and that he could not understand why the order was made because he had not broken any law, and he had not harmed anyone.
Again, these submissions are a nonsense, and there is no basis for finding that the proposed grounds of appeal have any merit.
It also must be remembered that the orders were made in the context of the applicant having failed to return the children to the respondent, and he was thus in contempt of the orders of the court. In those circumstances, his Honour's orders were appropriate and necessary.
The consequences of granting or refusing the application
Once more, the issue is where the justice of the case lies, and in that regard I have found that the applicant has not provided an adequate explanation for his failure to file a Notice of Appeal within the prescribed time, and the proposed appeal has no merit. Further, the only factor in the applicant’s favour is the prejudice to him if the application is refused, but that does not necessarily outweigh the prejudice to the respondent if the application is granted.
Thus, this is a clear case where the interests of justice require that the Application in an Appeal seeking an extension of time to file a Notice of Appeal against the orders made on 20 November 2017 should be dismissed, and that is the order that I propose.
The Application in an Appeal to extend time to appeal against the order made on 3 May 2018
Adequate explanation
What I have said above in relation to the failure by the applicant to provide an adequate explanation for his failure to file a Notice of Appeal within the prescribed time also applies here.
The merits of the appeal
The “grounds of appeal” set out in the applicant’s draft Notice of Appeal are almost exactly the same as the “grounds of appeal” in the previous two draft Notices of Appeal, namely:
1. Judge denied my right to be heard - Natural justice
2.Judge ignored relevant evidence, binding Acts, High court Precedents and United Nations International Conventions
3 Judge acts with assumption
4Judge denied expert witnesses to speak
5 Judge acted beyond the jurisdiction of court rules
6 Has not allowed children to be heard, as per items 1 and 2
7[The children] are to reside where they see it is in their best interest to do so
It is plain, given the similarity between these proposed grounds and those in the other draft Notices of Appeal, that the concern of the applicant is not the terms of the orders the subject of those draft Notices of Appeal, but the claim that the trial judge in making any orders directed to him and the children, has breached the statutes and the International treaties referred to above, and that the trial judge has contravened his Judicial Oath. In any event, none of the proposed grounds of appeal here have any correlation with the order the subject of the draft Notice of Appeal.
To repeat, the order complained of provided that until further order the children spend no time and have no communication with the applicant unless agreed to by the respondent and the ICL. However, as with the other orders, that order needs to be seen in context. The relevant history of the matter since the consent orders made on 11 August 2017, is the applicant’s failure to comply with those orders in various respects, ultimately leading to the order made on 20 November 2017, suspending the time the children spend with him. As explained by the trial judge in the transcript of the hearing on 3 May 2018, that did not stop the applicant and thus his Honour considered it appropriate to transfer the matter to the Family Court of Australia, an order which is not the subject of the proposed appeal, and in effect continued the arrangements until further order of the children spending no time or communicating with the applicant.
I note that before the Family Court of Australia the applicant will be able to seek to pursue his arguments as to why the orders now in existence should be varied. How successful he will be will be up to the judicial officer who ultimately hears the matter. Thus, the applicant still has the prospect of that avenue open to him, and that would seem a more appropriate avenue than to pursue the appeals that he now seeks to do. This is even the more so given the findings that I have made about the lack of merit of any of the proposed grounds of appeal.
I also note that the applicant informed this Court that the proceedings in the Family Court of Australia have been put on hold, pending the result of his applications to extend the time to file Notices of Appeal. Thus, given the lack of success in those applications, he has unfortunately lost time in pursuing his arguments in the Family Court of Australia.
In order to complete the picture, I also find the proposed grounds of appeal against the order made on 3 May 2018 have no merit.
The consequences of granting or refusing the application
The respective prejudice to the parties depending on the result of the application is also present here, and once again I do not need to repeat what I have said about this when considering the other Applications in an Appeal.
Conclusion
As before, the question to be asked is where does the justice of the case lie?
Again I have found that the applicant has not provided an adequate explanation for his failure to file a Notice of Appeal within the prescribed time, and that the proposed appeal has no merit. Further, the prejudice to the applicant if the application is refused does not necessarily outweigh the prejudice to the respondent if the application is granted.
Accordingly, this is also a clear case where the interests of justice require that the Application in an Appeal seeking an extension of time to file a Notice of Appeal against the order made on 3 May 2018 should be dismissed, and that is the order that I propose.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 19 November 2018.
Associate:
Date: 19 November 2018
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