RAYSON & DARGUSCH

[2018] FamCAFC 40

FAMILY COURT OF AUSTRALIA

RAYSON & DARGUSCH [2018] FamCAFC 40

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks an extension of time within which to file notice of appeal against spousal maintenance order – Proposed notice of appeal does not contain identifiable grounds of appeal – Application dismissed.

Family Law Rules 2004 (Cth)

APPLICANT: Mr Rayson

RESPONDENT: Ms Dargusch

FILE NUMBER: PTW 7535 of 2015

APPEAL NUMBER: WA 40 of 2017

DATE DELIVERED: 2 March 2018

PLACE DELIVERED: Perth

PLACE HEARD: Perth

JUDGMENT OF: Thackray J

HEARING DATE: 2 March 2018

LOWER COURT JURISDICTION: Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE: 28 April 2017

LOWER COURT MNC: NA

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. The application in an appeal filed 8 November 2017 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 Rayson & Dargusch 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 PERTH

Appeal Number: WA 40 of 2017
File Number: PTW 7535 of 2015

Mr Rayson

Applicant

And

Ms Dargusch

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application before the Court is that of Mr Rayson (“the applicant”) filed on 8 November 2017, to which Ms Dargusch (“the respondent”) is the respondent.  Although it is not said so clearly in the application, the applicant seeks an extension of time in which to file a notice of appeal against a spousal maintenance order made by Magistrate Osborn on 28 April 2017.

2. That order provided for the applicant to pay to the respondent spousal maintenance on an interim basis of $750 per week.  The applicant was aggrieved by the order and, as it subsequently transpired, concerned about inadequacy of information provided by him to the court via his then lawyer.  The applicant has endeavoured, by a variety of means, but unfortunately for him not very successfully, to seek to challenge the order.

3. First, he says he endeavoured to correct the information before the court, but when the matter came before a judge on 20 July 2017, the hearing did not proceed as a result of a conflict of interest involving the respondent’s lawyer.

4. The applicant states he was then advised by court staff, who are not legally trained, of a means by which the order might be challenged, and that involved filing an application in a case and supporting affidavit seeking a review of the spousal maintenance arrangements. 

5. When the matter came back before O’Brien J on 14 September 2017, his Honour explained in his ex tempore reasons for decision that it appeared that what the applicant was really trying to do was to appeal against the order of the magistrate, but that the process that he had followed was clearly not correct as there is a notice of appeal prescribed for such purposes.  The application in a case was, therefore, dismissed.

6. Having heard what the judge had said, the applicant then set about preparing a notice of appeal in the proper form and he lodged that in the court on 13 October 2017.  It perhaps goes without saying, from what I have already said, that the applicant has not had the benefit of much, if any, legal advice, which is apparent from looking at the documents he has filed in this appeal. 

7. The grounds of appeal which should identify the error made by the magistrate simply say “Please see attached Documentation Grounds of Appeal”.  And there is then attached to the notice of appeal quite a lot of documents, primarily financial statements, but other material as well.  It is apparent the applicant was hoping the Court would look at that material and form a conclusion that the decision ought not to stand. 

8. I have explained to the applicant today, and he has indicated his understanding, that this is not the way in which a decision of a judge or magistrate can be challenged.  The onus falls on the applicant to identify recognisable grounds of appeal to explain the error made by the judge or magistrate.

9. Continuing the rather sad saga, after the applicant filed his application in the appeal and affidavit and the respondent filed a response, on 19 February 2018 the applicant filed in the first instance proceedings a Form 2A response in which he now seeks a retrospective variation of the order from 17 January 2018 based upon his changed financial circumstances.  He also seeks a stay, both in relation to the operation of the order and the enforcement proceedings.

10. As far as enforcement proceedings are concerned, I am told by the respondent this morning that she has filed an enforcement application.  I am further informed that the matter has been listed for trial before a magistrate on 17 April 2018 with an estimated hearing time of one or two days.  I am advised by the parties that the enforcement application is caught up in those proceedings and that, therefore, her Honour will be considering, presumably, the variation application, the enforcement application and a parenting issue concerning the parties’ child V.

11. I have explained to the applicant that when considering whether or not to grant an extension of time, it is necessary to give consideration to the merits of the appeal.  Unfortunately, because of the absence of identifiable grounds of appeal, it is not possible to comment at all on that issue. 

12. However, the applicant effectively summarised his case in one paragraph of his application – and his complaints really boil down to two primary issues.  First that due to the fault of his former lawyer and his own busyness with his work at the time and preoccupation with other matters, the evidence presented to the magistrate was not correct.  Secondly, since then his financial circumstances have taken a serious turn for the worse, making it impossible for him to meet the order of the court.  I am told today that although he did pay up until 8 November 2017, he was only able to do that by drawing on his credit card.

13. What is important for present purposes is that none of those arguments demonstrate appealable error.  Instead, if they are established, they demonstrate error on the part of the applicant and his lawyer, or one of them, and relate to matters that have occurred since the making of the order.  As far as the alleged negligence of the lawyer is concerned, that is a matter between the applicant and his lawyer.  In terms of the change in circumstances, the proper way to deal with that is not by way of an appeal, but by way of an application for variation, which is the course the applicant is now following.

14. In those circumstances, it is not necessary for me to comment on other issues that would normally be relevant, such as the explanation for the delay.  I would note that there has been some adequate explanation because of the incorrect advice, it seems, that the applicant received and the difficulties that he has faced as a self-represented litigant.  Nevertheless, the fundamental problem with the application is the lack of potential merit in the appeal, and in those circumstances I will dismiss the application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 2 March 2018.

Associate: 

Date:  3 May 2018