ONGAL & MATERNS - [2013] FamCAFC 207

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS

[2013] FamCAFC 207

FAMILY COURT – APPEAL – APPLICATION FOR EXTENSION OF TIME – where the applicant seeks an extension of time to appeal the orders of Federal Magistrate Brown (as he then was) made on 15 May 2009 – where proceedings before a judge at first instance were dismissed as a result of a misconception or misunderstanding that the applicant had an appeal before the court – where the applicant misunderstands what the appeal process is about – where an appeal is not the correct process to achieve the outcomes sought by the applicant – where the applicant has not demonstrated a basis for an extension of time to appeal – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Ongal

RESPONDENT:

Ms Materns

FILE NUMBER:

SOA

2013

APPEAL NUMBER:

ADC

2107

2007

DATE DELIVERED:

16 December 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

16 December 2013

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

15 May 2009

LOWER COURT MNC:

[2009] FMCAfam 476

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

IT IS ORDERED:

The amended Application in an Appeal filed on 26 November 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ongal & Materns 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 58 of 2013
File Number: ADC 2107 of 2007

Mr Ongal

Applicant

And

Ms Materns

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before me today is Mr Ongal’s amended Application in an Appeal filed on 26 November 2013. It is supported by an affidavit filed on the same date, and there is also an amended draft Notice of Appeal.
This is a hearing that was adjourned from 22 October 2013 when there was a different application in an appeal before the court, namely an Application in an Appeal filed by Mr Ongal on 13 September 2013, supported by an affidavit filed on that date, and a draft Notice of Appeal. Although it was a different application it was also an application for an extension of time to file a Notice of Appeal against orders made by Federal Magistrate Brown (as he then was) on 15 May 2009. I also confirm that this is not the first time that Mr Ongal has sought an extension of time to file a Notice of Appeal against those orders made by the Federal Magistrate; he previously filed such an application on

17 May 2010. That application came before me on 26 July 2010 and I dismissed it.
In any event, on 22 October 2013 I indicated to Mr Ongal that I had serious concerns about his application and the supporting material filed on

13 September 2013. I took some time on that day to point…

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.

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Details

AGLC: ONGAL & MATERNS [2013] FamCAFC 207
Case: [2013] FamCAFC 207
Decision Date: 16 December 2013

CaseChat Overview and Summary

In the Family Court of Australia, the case of Ongal v Materns revolves around Mr Ongal's application for an extension of time to appeal the orders made by Federal Magistrate Brown on 15 May 2009. The application was filed on 26 November 2013 and was supported by an affidavit and an amended draft Notice of Appeal. The appeal pertains to the same orders that were previously subject to an unsuccessful application for an extension of time filed by Mr Ongal on 17 May 2010.

The primary legal issues before the court were whether Mr Ongal had demonstrated a sufficient basis for an extension of time to appeal and whether an appeal was the appropriate process to address his grievances regarding the orders made by Federal Magistrate Brown. The court was required to consider the factors relevant to an application for an extension of time, including the explanation for the delay and the merits of the proposed appeal. Additionally, the court needed to determine whether the appeal process was the correct avenue for Mr Ongal to pursue his desired outcomes.

The court, Strickland J, examined Mr Ongal's application and supporting material, noting that it failed to provide an adequate explanation for the delay and did not indicate that the appeal had any prospect of success. The court highlighted Mr Ongal's misunderstanding of the appeal process, emphasising that an appeal is not the appropriate means to address changed circumstances or seek remedies. The court also pointed out that proceedings at first instance or in the Administrative Appeals Tribunal might be more suitable options for Mr Ongal to pursue his grievances. Consequently, the court dismissed the application for an extension of time to appeal, as Mr Ongal had not demonstrated a valid basis for such an extension.

The court's final order was that the amended Application in an Appeal filed by Mr Ongal on 26 November 2013 be dismissed. The court noted that the publication of this judgment under the pseudonym Ongal & Materns had been approved by the Chief Justice pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth).

Orders