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 out to him the concerns that I had as to the content of the affidavit and the draft Notice of Appeal. I indicated to Mr Ongal that as that application stood it should be dismissed given that it failed to demonstrate a basis for an extension of time being granted, bearing in mind that the primary factors relevant to an application for an extension of time are an explanation of the delay, and consideration of the merits of the proposed appeal. Not only did the application and the supporting material filed on 13 September 2013 fail to adequately explain the delay, and nor was it apparent that the Notice of Appeal had any prospect of success, but it was also not apparent from the content of those documents that it was necessary to grant an extension of time to enable justice to be done as between the parties.
However, rather than dismiss the application I determined to give Mr Ongal one further opportunity to pursue an extension of time, and I adjourned the matter to today in anticipation of Mr Ongal filing amended documents, which he has done and to which I have already referred.
At the commencement of the hearing today Mr Ongal has alerted me to first, a decision of Dawe J delivered on 4 December 2013, and secondly, a hearing before the Administrative Appeals Tribunal (“the AAT”) on 25 November 2013. The relevance of the decision of Dawe J arises particularly from paragraphs 18 and 19 where her Honour said this:
18.The father filed a Notice of Appeal against the decision of FM Brown (as he then was) made on 15 May 2009 on 13 September 2013. That decision of FM Brown dealt with the issue of whether a departure from the administrative decision of the Child Support Registrar dated 23 October 2006 was warranted. A recently filed appeal will consider the correctness of the judgment of FM Brown. The orders sought in the appeal are extremely similar to those sought in this mooted Initiating Application, namely:
1.I seek an order setting my child support amount at the legal minimum for all periods under review, including those I sought departure from and as regards the departure granted on the cross-application.
2.I seek repayment of costs ordered by FM Brown from the Legal Services Commission.
3.I seek an order for costs.
4.I seek dismissal of all the orders of FM Brown.
5.I seek an order granting costs of contact for the father at the sum of $1600 per month until children are 18 years of age, as regards travel to/from [W].
19.I do not consider that I, as a first instance judge of this Court, am in a position to make any of the orders sought by the father in his Initiating Application. They are matters for the Appeal Division. As the father’s proposed Initiating Application has no merit and no chance of success, I decline to grant the father leave to proceed with it.
Her Honour thus dismissed the Application in a Case
It seems her Honour misconceived, or misunderstood, what was before this court, and I say that advisedly because as I stressed during the hearing today all I have before me is her Honour’s reasons for judgment delivered on

4 December 2013, and I do not know what passed between bench and bar, or what documents were before her Honour, as to the status of the “appeal”. Her Honour proceeded on the basis that Mr Ongal had in fact an appeal before this court, whereas that is not the case. Mr Ongal has no appeal before this court. He has an Application in an Appeal seeking an extension of time to file an appeal, and of course as at 22 October 2013 my view as expressed to

Mr Ongal on that day was that his then application was doomed to fail.

Her Honour in neither paragraph 18 or 19 refers to that, and I thus assume that her Honour was not aware, or made aware, of that.
On the basis that an appeal had been instituted her Honour correctly indicated that she as a first instance judge was not in a position to proceed to hear

Mr Ongal’s application. Her Honour rightly said that they were matters for the Appeal Division, and on that basis her Honour, as is apparent from paragraph 19, declined to grant Mr O’ngal leave to proceed with his Initiating Application.
That is unfortunate because it seems to me, and this is one point I was going to make to Mr Ongal today, that the appeal process which he is attempting to pursue is not the process that will achieve the outcome which he seeks. He has misconceived what an appeal is about. In terms of options though that are available to Mr Ongal, the proceedings he instituted and which were before Dawe J were the obvious options outside of an appeal. It is quite apparent, as her Honour herself says, and as Mr Ongal has confirmed, that the matters that were sought to be agitated by him before her Honour via an Initiating Application (subject to leave), covered many of the issues which he was seeking to raise if he was granted an extension of time to appeal.
In the circumstances that have arisen I indicated to Mr Ongal that he should look to again pursue the applications sought to be pursued before Dawe J, if that is his wish, and that is why I have taken some time in these reasons for judgment to address this aspect.
The second matter Mr Ongal informed me of at the commencement of this hearing was the hearing before the AAT, which apparently also relates ultimately to the orders made by the Federal Magistrate in May 2009, and raises and seeks to address issues which Mr Ongal, upon my reading of his documents, has sought to raise if he was able to pursue an appeal against those orders. That hearing is ongoing, but I observe that like the first instance proceedings commenced in the Family Court, the proceedings in the AAT are clearly a more appropriate option for Mr Ongal than to attempt to use the appeal process.
To return to the application that is before me today.
Given what Dawe J said in her reasons for judgment delivered on 4 December 2013, I thought it appropriate to indicate to Mr Ongal my preliminary view of his application, so that he could make a decision as to whether he wished to proceed with it or not, given that he, in my view, still will have, and should have, the option to proceed at first instance before a judge of the Family Court. The preliminary view I indicated to Mr Ongal was that on a reading of his documents I was not satisfied that he had demonstrated a basis for an extension of time to appeal. As I have stressed to Mr Ongal my view is based on his misunderstanding of the appeal process, and what can be achieved through an appeal given the complaints and issues that he is raising, or wanting to raise, in relation to the orders made by Federal Magistrate Brown on 15 May 2009.
What Mr Ongal is presenting in his material that is before the court today is based on what he says are changed circumstances since the orders made by the Federal Magistrate. I have explained to Mr Ongal that changed circumstances are not what an appeal process is there for. If there are changed circumstances they generally lead to the ability to take the matter back at first instance on the basis of those changed circumstances.
In any event, as a result of all that has passed between bench and bar

Mr Ongal, to give him credit, has indicated that in the circumstances he does not pursue his application for an extension of time to appeal. Thus I propose to dismiss that application.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 16 December 2013.

Associate:

Date: 20 December 2013