Paintal and Paintal

[2020] FamCAFC 17

FAMILY COURT OF AUSTRALIA

PAINTAL & PAINTAL [2020] FamCAFC 17

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time to file an application to review a registrar’s orders – Where the application provides no explanation for the failure to file a review on time –Where refusing an extension of time would occasion no injustice – Applicant to file Contested Appeal Book – Application dismissed.

Family Law Rules 2004 r 22.40 and r 1.14(2)

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPLICANT: Mr Paintal

RESPONDENT: Ms Paintal

INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

FILE NUMBER: CAC 273 of 2014

APPEAL NUMBER: EA 84 of 2019

DATE DELIVERED: 29 January 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 29 January 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 3 September 2019

LOWER COURT MNC: [2019] FamCA 624

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Women’s Legal Centre

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

Orders

1. That the Application in an Appeal filed 20 December 2019 be dismissed.

2. That the appellant file and serve a contested Appeal Book within twenty‑eight (28) days, limited to:

   (a)       The Reasons for Judgment delivered on 15 November 2018; and

   (b)       Family Report dated 31 May 2018.

3. That the costs of the application be costs in the appeal.

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 Paintal & Paintal 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 84 of 2019
File Number: CAC 273 of 2014

Mr Paintal

Applicant

And

Ms Paintal

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. By an Application in an Appeal filed on 20 December 2019, Mr Paintal (“the applicant”) seeks an extension of time in which to file an application seeking a review of the orders made by the Eastern Appeals Registrar (“the registrar”) on 6 November 2019.  The registrar’s orders were made in an appeal between the applicant, Ms Paintal (“the respondent”) and the Independent Children’s Lawyer (“ICL”), who was appointed to represent the interests of the parties’ child, born in 2012 (“the child”).

2. The orders the subject of the proposed review are the standard orders that are made to prepare an appeal for hearing, relevantly, the documents to be included in the appeal book (Order 1).  The effect of that order was that the registrar excluded certain documents that the applicant had included in his Draft Appeal Index filed on 23 September 2019, in particular, the Family Report dated 31 May 2018 and earlier reasons for judgment given by the primary judge on a tangentially related issue.

3. In order to understand the disposition of this application, some indication of the nature of the proceedings and the appeal is useful.

4. These proceedings were commenced in 2014 in the Federal Circuit Court of Australia.  Interim parenting orders were made in August 2017 and in July 2018, the matter was listed for final hearing, but was then transferred to the Family Court of Australia. Although the primary judge indicated that the final hearing would take place in 2019, unfortunately this was not possible and thus the applicant sought to address various issues that he said should not wait any longer.

5. By an Application in a Case filed 22 July 2019, the applicant sought an order for sole parental responsibility in relation to education for the child, to enable him to enrol the child into private school; for the child to be allowed to travel to India in October 2019 to attend a family event and; for expedition of the final hearing.  On 3 September 2019 the matter came before the primary judge for interim hearing and orders were made on 5 September 2019.  By Order 1 of those orders, the applicant’s Application in a Case was dismissed.  The appeal is against that order.  

Application to extend time

1. Pursuant to r 22.40 of the Family Law Rules 2004 (Cth) (“the Rules”), a party may review a decision of a registrar to a judge of the appeal division, within 14 days after the order is made. The relevant orders were made on 6 November 2019, thus the last day in which to apply for a review of those orders was 20 November 2019. The present application was filed 44 days after the procedural orders were made. The applicant filed an affidavit in support of this Application in an Appeal, but did not provide an explanation as to why he failed file an application seeking a review by the due date. This morning he explained that he was unaware of the time limits and only discovered that there were time limitations when he presented his Application for Review. No explanation was proffered as to his failure to seek legal advice on the issue.

2. Pursuant to r 1.14(2) of the Rules, the Court has power to extend the time in which an applicant may file an application for review of the registrar’s orders and will do so where it is in the interests of justice to grant the application (Gallo v Dawson (1990) 93 ALR 479 at 480).

Application for review

1. The applicant challenges the order made by the registrar directing the applicant to include certain documents in the appeal book (Order 1).  By the applicant’s affidavit dated 6 December 2019, he asserts that the registrar has excluded “crucial evidence”, such as the Family Report and previous Court orders, from the list of documents to be included in the Appeal Books (applicant’s Affidavit dated 6 December 2019, p.5 paragraph 28).  He claims that the “registrar acted to safeguard the best interest of the respondent’s lawyer and the ICL to disadvantage the unrepresented applicant father” (applicant’s Affidavit dated 6 December 2019, p.5 paragraph 30).  This submission is without foundation and should not have been made.  It is rejected.

2. More to the point, I am far from satisfied that the documents which the applicant seeks to include in the Appeal Books were in fact before the primary judge. At best, the applicant was able to suggest that the Family Report and his Honour’s reasons given on 15 November 2018 may have been considered or referenced in some fashion.  Although this would not necessarily justify their inclusion in the Appeal Books, without the benefit of the trial transcript it is difficult to be sure.  Thus for an abundance of caution, provision will be made for the applicant to file and serve a Contested Appeal Book limited to those documents.  It was explained to the applicant that if he presents a Contested Appeal Book and it becomes clear that the documents included in it were not before the primary judge, they are not admissible in the appeal and there is a significant risk that he will be ordered to pay the other parties costs in relation thereto.  So advised, the applicant asked to be able to file a Contested Appeal Book.

COSTS

1. The respondent has made an application for the applicant to pay her costs, on the basis that he has been wholly unsuccessful in his application.  The costs of this application will be costs in the appeal.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Ryan J delivered on 29 January 2019.

Associate: 

Date:  29 January 2019