Padilla & Wilkins
[2023] FedCFamC1A 202
•21 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Padilla & Wilkins [2023] FedCFamC1A 202
Appeal from: Review of Appeal Judicial Registrar's decision made 13 October 2023 Appeal number(s): NAA 243 of 2023 File number(s): BRC 16456 of 2021 Judgment of: TREE J Date of judgment: 21 November 2023 Catchwords: FAMILY LAW – REVIEW OF DECISION – Where the applicant seeks to review an Appeal Judicial Registrar’s order dismissing his application for an extension of time to appeal – Merits of the proposed appeal considered – Where the primary judge’s findings and conclusions were not glaringly improbable, or contrary to compelling or incontrovertible evidence – Where no ground of appeal has merit – Where discretion to extend time to appeal would be futile – No injustice – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 90SM, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.40, 15.06
Cases cited: Abalos v Australia Postal Commission (1990) 171 CLR; [1990] HCA 47
De Winter v De Winter (1979) 23 ALR 211
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
SS Hontestroom v SS Sagaporack [1927] AC 37
Number of paragraphs: 64 Date of hearing: 14 November 2023 Place: Cairns (via video link) The Applicant: Self-represented litigant Solicitor for the Respondent: Fallu McMillan Lawyers ORDERS
NAA 243 of 2023
BRC 16456 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PADILLA
Applicant
AND: MS WILKINS
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
21 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s Application for Review filed 25 October 2023 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Padilla & Wilkins has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 13 October 2023, an Appeal Judicial Registrar dismissed an application by Mr Padilla (“the husband”) to extend time to appeal from a decision of a judge of the Federal Circuit and Family Court of Australia (Division 2). Now, by Application for Review filed 25 October 2023, the husband seeks the reconsideration of his application.
The husband’s application is opposed by Ms Wilkins (“the wife”).
For the reasons which follow, the husband’s Application for Review will be dismissed.
BACKGROUND
In the judgment from which the husband seeks leave to appeal, the primary judge said the following were “facts not disputed”:
7.The [wife] is 57 born [in] 1966 and the [husband] is 73 born [in] 1950.
8. The [wife] has three children from a former relationship.
9. The [wife] is married and has not divorced the father of her three children.
10.The parties met at [a bar] in [Country B] where the [wife] worked [in] 2007.
11.The [husband’s] daughter [C] was born [in] 2007 to the [husband] and [Ms D].
12.Between 2008 and 2010 the [husband] paid for the [wife] to travel to Australia on occasion and provided financial support for the [wife’s] children including paying for the education of her two daughters [X] and [Y].
13.The [wife] arrived in Australia in 2012 pursuant to a partner visa signed by the [husband].
14. In 2010 the [husband’s] daughter [C] arrived in Australia.
15.Between 2011 and 2016 the [husband] declared on his tax returns that the [wife] was his dependent de facto spouse.
16.In 2016 a property situated at [E Street, Suburb F] was purchased in the [wife’s] sole name. The [husband] provided the finance for the purchase of that property. The parties entered into a loan agreement dated 7 October 2016. A mortgage was registered against the property for the amount advanced.
17.The [husband’s] Will dated 17 February 2019 provides for the [wife] to receive the [E Street] property, the mortgage is forgiven and she is to receive $20,000.
On 10 December 2021, the wife commenced proceedings under s 90SM of the Family Law Act 1975 (Cth) (“the Act”).
On 11 May 2023, the matter came before the primary judge for a threshold hearing to determine whether the parties had cohabited in a de facto relationship, and particularly whether the parties had been in a de facto relationship between September 2007 and May 2020, with the wife so contending and the husband denying the existence of a de facto relationship at any time whatsoever.
As I shall detail shortly, the primary judge extensively reviewed the competing evidence of the parties and their witnesses, ultimately rejecting the husband’s evidence and finding that the de facto relationship existed and spanned the period contended for by the wife.
The appeal period from that judgment expired on 20 June 2023, with no appeal filed in that time. Rather, on 11 September 2023 the husband filed his Application in an Appeal which was dismissed by the Appeal Judicial Registrar. As I have noted earlier, the husband now seeks to review that decision.
RELEVANT LAW
Pursuant to r 13.40(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), a party may apply for a review of an Appeal Judicial Registrar’s order relating to the conduct of an appeal. Such a review proceeds as a hearing de novo.
The discretionary power to extend time for the filing of a Notice of Appeal pursuant to r 15.06 of the Rules has typically been referenced to the well-known statement by McHugh J in Gallo v Dawson (1990) 93 ALR 479 where his Honour said at 480-481:
… 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 and 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 194-195. 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 263-264; 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 p 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…
Thus the issue for the Court is whether the strict application of the Rules results in any miscarriage of justice. In addressing that issue, the following factors are often relevant:
·The nature and history of the proceedings;
·The conduct of the parties;
·The length of the delay and any explanation for the same (including any earlier attempts to file the documents which might have been rejected by the Registry and any delay between the documents being rejected by the registry and when the application was filed);
·The merits of the appeal;
·Any prejudice or consequence to the parties depending upon the result of the application.
IS THE PROPOSED APPEAL MERITORIOUS?
It is convenient to consider the merits of the proposed appeal first. The proposed Notice of Appeal contains some 15 grounds extending over 11 closely typed pages. Many of the grounds contain sub-grounds. It is not productive to set out each ground of appeal as cast, however when I turn to considering them, I shall briefly summarise each ground as best I understand it, and then address the apparent merits of it.
At the outset, in order to properly evaluate the merits of the proposed appeal, it is important to understand why her Honour found as she did.
At [33]–[38] the primary judge said as follows:
33.The [wife] annexed to her affidavit copies of Statutory Declarations signed by the [husband] regarding the nature of the parties’ relationship.
34.On 21 February 2012 both the [wife] and the [husband] each signed a Statutory Declaration at [Town G] Queensland declaring the existence of their de facto relationship. Those documents support the existence of a de facto relationship between 2007 and 2012. Counsel for the [husband] did not allege that the [wife’s] statutory declaration was false.
35.In the Statutory Declaration signed by the [husband] on 21 February 2012 he declared that he and the [wife] commenced a de facto relationship in September 2007. The [wife] visited him in Australia on 3 separate occasions in 2010, 2011 and 2012. He visited the [wife] in [Country B] on 10 separate occasions between 2007 and 2012. He stated “The duration of our relationship 2007 to 2012 is evidence of our ongoing commitment.” He stated he supported the [wife] and her two daughters throughout that period including making money transfers through Western Union “as evidence of our ongoing commitment.”
36.On 25 June 2012 the [husband] signed a Statutory Declaration “Partner Visa (Sponsor)” at the Courthouse, [Town G] Queensland. When cross examined the [husband] agreed the form was in his handwriting and he completed the form. In the Partner Visa he declared that he and the [wife’s] relationship began in 2007 and they had lived together for 4 years and 9 months. He declared they owned joint property in [Country B]. He declared he obtained custody of his daughter [C] in 2010 and the [wife] assisted him to care for [C]. He described that relationship as quite close.
37.The [husband] alleged the applicant illegally obtained the Visa as she was married at the time. He claimed he was unaware she was still married to her former husband. The [wife] deposed that when she met the [husband] in 2007 she had been separated from her husband for 15 years. She told the [husband] she had not divorced and he was well aware of that. I accept the [wife’s] evidence and find that the [husband] was aware she had not divorced her former husband. He attempted to use that fact against her in these proceedings denying the existence of a de facto relationship with him because she was still married. I reject that evidence. The [wife] says and I accept that her relationship with the [husband] was exclusive. She had been separated from her husband for 15 years and had no other relationship during the time she spent with the [husband].
38.The [wife] said during the period the parties spent in [Country B] they had an ongoing sexual relationship. They shared a common residence whether in rental accommodation or when they lived in one of the two townhouses [in][Country B]. They made improvements to those properties with funds provided by the [husband]. I accept the [husband’s] evidence that given the restrictions on foreign ownership the land was purchased in the [wife’s] name but was intended to be a joint purchase. I find he demonstrated a financial commitment to the [wife] in purchasing the property in her name.
(Bold emphasis added)
Her Honour next addressed the parties’ subsequent lives in Australia in great detail. In the course of doing so, at [75] the primary judge concluded:
75.I found the [wife] to be a truthful and reliable witness. Her evidence was corroborated by both independent documentary evidence and the evidence of family members who had the opportunity to observe the parties from time to time.
The primary judge then traversed the husband’s evidence in detail. At [79] her Honour said:
79.His evidence about their living arrangements in [Country B] was inconsistent. He said the parties lived in one of the townhouses [in early] 2008 while the other was being completed. He agreed he provided the finances for the properties and the [wife] made no financial contribution. He paid for alterations to the property. At one point in his evidence he claimed they did not live in the same townhouse but rather the [wife] and her daughters lived in “the other property.” On another occasion he said he lived in the “first” property with the applicant between 2008 and 2010 until “the second house was completed in mid - 2009.” He said when the second house was completed they lived independently and apart. I do not accept his evidence.
Later at [82]–[87] the primary judge continued:
82.The [husband] was cross examined about his Statutory Declarations where he declared that he and the [wife] commenced a de facto relationship in September 2007. The [wife] had also sworn a Statutory Declaration on 21 February 2012 in almost identical terms adding that “she helped [the husband] take care of his four year old daughter [C].” The statements made in each party’s Statutory Declaration are consistent with the [wife’s] affidavit evidence that the parties were de facto partners between September 2007 and 21 February 2012.
83.When cross examined about his Statutory Declaration dated 21 February 2012 the [husband] claimed he made an error in declaring the parties were in a de facto relationship from September 2007. He said the date should be “2011” but failed to explain the significance of 2011.
84.In his later Statutory Declaration “Partner Visa” signed by the [husband] on 25 June 2012 he declared that the parties owned joint property in [Country B] and provided an explanation how joint ownership came about. He deposed to the [wife] helping him care for [C] and described that relationship as close. He gave his address as [Town G] Queensland and his occupation “retired.” He declared:
I have a mutual commitment to a shared life as a de facto partner to the exclusion of all others with [the wife]. That our relationship is genuine and continuing and that [the wife] and I live together. Our relationship began in 2007 and we have lived together for 4 years and 9 months.
He signed the declaration before a Justice of the Peace at [Town G] Courthouse on 25 June 2012.
85.He claimed in cross examination that the later Statutory Declaration sworn in June 2012 was also in error regarding the commencement date of the parties’ de facto relationship. He said the date should be 2011. He claimed he was unaware at the time that the [wife] was married and had not divorced her husband and it was illegal in [Country B] for married people to engage in a de facto relationship. He provided no rational explanation why the same error about the commencement date appeared in his later Statutory Declaration sworn in June 2012 and failed to explain why he did not correct the error in the later document. He gave a lengthy explanation about advising certain persons of the error but produced no documents. I am satisfied that the [husband] was being deliberately untruthful in stating the commencement date of their relationship was 2011.
86.I find that when he signed both Statutory Declarations in February and June 2012 he and the [wife] were in a genuine de facto relationship. At the time he signed those documents I am satisfied he was aware or was made aware that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959. I find that he believed the statements he made in the declarations were true in every particular when he signed those declarations. I find the parties’ were in a de facto relationship which commenced in September 2007 which was ongoing in June 2012 as asserted by the applicant and as declared by the [husband].
87.Counsel for the [wife] suggested to the [husband] that he had worked for [a government agency] for many years employed as an […] officer for [a government agency]. He agreed. I am satisfied that the [husband] was well aware that serious consequences flow for persons who make false statements and falsely declared the existence of a relationship. The [husband] agreed that between 2011 and 2016 the [wife] was declared as his de facto spouse on his tax returns. When cross examined he said his accountant had assumed the parties were in a de facto relationship and blamed his accountant for the entries on his tax return. I am satisfied that the [husband] declared the [wife] as his de facto spouse between 2011 and 2016 as that was in fact the case, they were genuine de facto partners during that period.
(Footnote omitted) (Bold emphasis added)
At [91] the primary judge also noted:
91.Counsel for the [wife] cross examined the husband about contemporaneous medical records suggesting he declared the wife as his de facto partner. The [husband] denied the existence of a de facto relationship claiming the [wife] was his business partner. When admitted to hospital and other health services between 2016 and 10 March 2019 the records of the hospital and other health services record the [husband’s] marital status as “de facto” or “partner” and the [wife] is listed as his next of kin. In [late] 2016 the [City H] Health Services record notes that “he lives in [Town G] with his 9 year old daughter. His [wife] from [Country B] is currently living in [Suburb F] to study a [health] certificate.” The parties were at the time living in [Suburb F] while the [wife] attended TAFE and [C] was attending [Suburb F] State School.
(Bold emphasis added)
Then at [102] her Honour said:
102.The [husband] did not dispute that he provided for the [wife] in his Will dated 7 February 2019. The Will stated that he intended to benefit the [wife] by forgiving the mortgage on [E Street, Suburb F] which would effectively provide the [wife] with an unencumbered property in addition to $20,000. He did not produce a copy of any subsequent Will.
Her Honour then addressed the evidence of other witnesses, including the following:
106.The evidence of the [wife’s] children [X] and [Y] largely corroborate the [wife’s] version of the parties’ de facto relationship including that the parties shared a common residence or common residences, they were a couple who shared a bedroom and a bed, they worked together on the [Town G] property, they attended family gatherings as de facto partners including birthdays and Christmas’s and represented themselves as being in a continuing relationship. They attended family functions together as grandparents including the grandchildrens’ birthdays. [X] said they referred to the [husband] as “step – dad.” He supported both the [wife’s] children including paying for their education and attending their graduation. In addition he financially supported their mother. None of the [wife’s] witnesses (including her adult children) were required for cross examination. I place weight on their unchallenged evidence.
(Bold emphasis added)
Later, the primary judge compared the evidence of the wife and the husband as follows:
109.The [wife’s] evidence was largely corroborated by independent documentary evidence. I found her to be a truthful and frank witness. The [husband] when giving evidence was not a credible witness. When faced with clear documentary evidence tending to support the existence of a de facto relationship between the parties he denied the relationship was anything other than a “business relationship.” Notwithstanding that, he deposed that from 2013 the [wife] helped him care for [C] when his son moved to [Country B]. He paid the [wife’s] expenses but denied she helped out on the [property]. He agreed she grew crops and sold those items. He paid for all outgoings on both the [Town G] property and the [E Street] property. He paid all outgoings on the [J Street] property. He said they lived in a “type of relationship between 2010 and 2016 but thereafter did not properly live together.” I infer he accepts between 2010 the parties were in a relationship. He was adamant it was only a “business relationship.” He tended to talk over the top of Counsel and engaged in argument particularly when shown documents that supported the parties were in a de facto relationship or “partners.”
(Bold emphasis added)
Then under the heading “Conclusion” the primary judge said, amongst other things:
112.I am satisfied that the parties shared a common residence initially in [Country B] from the time the [husband] visited in 2007. They stayed together when they visited the [wife’s] mother [in Country B] and stayed with the [wife’s] aunty who lived nearby for a month. They rented a house [in Country B]. The [husband] purchased two town houses [in Country B] and the parties lived together in one of the town houses until the other was completed. The [husband] provided financially for the [wife] and her children during the time he spent in [Country B], in purchasing the town houses and when sending money to her upon his return to Australia.
113.I find that when the [wife] came to live in Australia on a permanent basis she came to continue the parties de facto relationship and not as a business partner. I am satisfied that the Statutory Declarations accurately reflect the parties past and ongoing commitment to each other.
114.From 2012 the parties’ de facto relationship continued. They lived together for the majority of time in one of several common residences, socialized among family members and the [husband’s] friends and family, provided mutual comfort and support for each other, worked together on the [husband’s] [property] in [Town G] with the [husband] continuing to provide financial support for the [wife] and her children. The [wife] provided care and support for the [husband’s] daughter [C]. The parties’ continued to share a bed and bedroom in each of the common residences they lived in from time to time and the [wife] continued to make non - financial contributions.
…
117.I find there was a short separation of a few weeks in 2018 however I am satisfied that the [wife] returned to live with the [husband]. She continued to care for the [husband] and undertook domestic duties. He continued to provide financial support. I am satisfied the contributions by each of them were undertaken for their mutual benefit as de facto partners.
118.I am satisfied that the [husband] provided for his de facto partner in his Will dated February 2019. I find that sometime after April 2019 the parties moved into the home of the [husband’s] mother in [J Street, Suburb F] where they continued their de facto relationship.
…
121.Paragraph 4AA (1) (a) and (b) of the Act are satisfied in this case. I find that for the reasons set out above paragraph 4AA (1) (c) is satisfied and the parties enjoyed a de facto relationship for a period of approximately 12 years and 7 months between September 2007 to 25 May 2020 save for a short period of separation in March 2018. I make a declaration accordingly.
(Emphasis added)
It can therefore be seen that central to the primary judge’s findings and conclusions was an acceptance of the wife’s evidence, and her credibility, and a rejection of much of the husband’s evidence, and his credibility. As I read the primary judge’s reasons recited above, a central plank of her reasoning was the preference of contemporaneous statutory declarations sworn by the husband in happier times, in which he clearly stated the existence of a de facto relationship since 2007, and a rejection of his flimsy explanations as to why they were erroneous. Also buttressing that conclusion were relevant health records.
Whilst the husband’s proposed appeal would proceed by way of re-hearing, it is well established that when it comes to factual findings made contrary to a witness’ evidence, appeal courts will be reluctant to intervene, given their “permanent position of disadvantage as against the trial judge” (Abalos v Australia Postal Commission (1990) 171 CLR 167 at 178 citing SS Hontestroom v SS Sagaporack [1927] AC 37 at 47.)
Thus where findings of fact depend on the credibility of witnesses, appellate intervention will only be warranted where the finding is glaringly improbable, or contrary to compelling or incontrovertible evidence, for example uncontradicted facts (Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”)). As shall be seen, the husband did not acknowledge, much less engage with, those principles when drafting his proposed Notice of Appeal.
Ground 1
This ground contends that the primary judge was biased, however no indication as to whether such was actual or ostensible bias is discernible, nor is the ground able to be otherwise sensibly understood. The fact that the primary judge rejected the husband’s evidence and found him not to be credible does not establish bias, no matter how upset that may have made the husband.
I am not persuaded it has merit.
Ground 2
This ground appears to contend that there was some corruption or collusion in the relevant court registry, such that the primary judge remained seized of the matter when she ought not have.
No merit is discernible.
Ground 3
This ground expands upon Ground 2, contending that there is some kind of conspiracy in the court against the husband, perhaps also including his barrister and the primary judge.
Again, no merit is apparent.
Ground 4
This ground primarily contends that the primary judge’s order was made without jurisdiction, as [Country B] law does not recognise de facto relationships. Even if that be so, Australian law does, and this country is where the parties lived for many years. That the wife perhaps remained a citizen of [Country B] is neither here nor there, nor that for part of the time that an Australian court recognises the existence of a de facto relationship, the parties lived overseas.
This ground further contends that for the post 2012 period “a de facto relationship is not supported by credible evidence”. However as I have explained, the primary judge found the evidence credible and persuasive, including by reference to credibility findings, which are not contradicted by any material of the kind identified in Fox v Percy.
This ground has no merit.
Ground 5
This ground contends that the primary judge did not read certain material. The basis for establishing this allegation is not articulated, and is not otherwise able to be ascertained.
This ground enjoys no prospects of success.
Ground 6
This ground – in very colourful language – contends that the primary judge erred by finding that someone else had lived in a property owned by the husband. Intriguingly it is said that this other person is “proven at law to be a credible witness” because “he was found not guilty” of perjury.
The relevant finding appears to be at [108]. Patently if there was error, it was immaterial (De Winter v De Winter (1979) 23 ALR 211 at 217).
This ground is hopeless.
Ground 7
This ground alleges evidence relied upon by the primary judge had been “altered”, “unsigned and prepared by a third party”, “stolen”, “photographed with finger marks on the edge” and “not signed on the detail page”. Little sense can be made of it. In any event the husband’s statutory declarations and the health records, upon which the primary judge principally relied, were not said to be other than authentic.
I am not persuaded the ground enjoys merit.
Ground 8
This ground complains of 27 “relentless slanders” of the husband by the primary judge, which seem to be instances where the primary judge accepted and acted upon certain evidence, and in doing so rejected the husband’s contrary version. Her Honour was entitled so to do, and particularly given the credit findings, appellate intervention is not warranted here (Fox v Percy).
No error is detectible.
Ground 9
This ground challenges the primary judge’s acceptance of the wife as a credible witness, seemingly because the wife had allegedly been an [entertainment industry worker] in [Country B], applied for a visa and later a passport in her maiden name, when in fact she was then married, and because of some issues surrounding the late registration of her and her daughter’s birth.
As I have already noted, credibility is pre-eminently a matter for the primary judge, and according to Fox v Percy, findings will stand unless glaringly improbable, or contrary to compelling inferences or incontrovertible evidence, none of which arise here.
This ground is unmeritorious.
Ground 10
This ground makes some incomprehensible complaint arising from the application of s 102NA the Act to the case.
It is unmeritorious.
Ground 11
On no view is this a proper ground of appeal.
Ground 12
This ground is simply a long chronology of events, albeit cast in pejorative terms. It may (or may not) be further detail of the husband’s conspiracy complaint. In any event it appears to relate to contended “obstruction”, “persecution and victimisation”, “discrimination”, “improper acts by [the primary judge]” and “criminal aspects disclosed with the case”.
Only the allegedly improper acts by the primary judge could possibly comprise a valid basis for an appeal, but none of the matters particularised make any sense, or appear to raise proper matters for appellate review.
This ground is without merit.
Ground 13
This ground is headed “FAMILY LAW IN AUSTRALIA IS BASICALLY FLOORED. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS …” (As per the original).
Although I have done my best to understand what the ground is about, whatever it be, it does not appear to be a proper matter for appellate review, and I conclude it is without merit.
Ground 14
This is mere commentary and is not a proper ground of appeal.
Ground 15
This ground seems to claim some failure by Australian Immigration Officers. It is without merit.
Conclusion
No ground of appeal enjoys merit, and hence the appeal would fail if time were extended for its filing.
OTHER CONSIDERATIONS
As the appeal would not succeed if time were extended, the exercise of any discretion to extend time would be futile, and hence refusing the extension of time would not occasion the husband any injustice. Nonetheless I shall briefly address the other relevant factors.
The wife’s proceedings seek a division of the parties’ property. It appears that they are progressing slowly.
I cannot identify any conduct of the parties relevant to an extension of time.
The husband’s delay is considerable, however it appears as though it may in part be attributable to him having been wrongly advised by court staff as to what he needed to do. What cannot be ignored though is that even if the appeal in its current form had been filed within time, it is likely that the grounds would have been struck out in any event, as either not being proper grounds of appeal, or because they were hopeless.
If an extension of time is not granted, then unless the parties are able to settle the matter at the court-ordered mediation, the matter will proceed to a hearing at which the just and equitable division of the parties’ property will be ordered.
Weighing those matters tells strongly against any extension of time in which to file an appeal.
OUTCOME
The Application for Review filed 25 October 2023 will be dismissed.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 21 November 2023
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