Scott & Munayallan

[2021] FamCAFC 133

FAMILY COURT OF AUSTRALIA

Scott & Munayallan [2021] FamCAFC 133

Appeal from:	Munayallan & Scott [2020] FamCA 1141
Appeal numbers:	EAA 66 of 2021 EAA 67 of 2021
File number:	SYC 59 of 2010
Judgment of:	ALDRIDGE J
Date of judgment:	23 July 2021
Catchwords:	FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Extension of time to file Notice of Appeal – Where the delay is not satisfactorily explained – Where there is no merit in the proposed grounds of appeal to justify an extension of time in light of the lengthy delay – Application for an extension of time dismissed – Applicant to pay the respondent’s costs of the applications in a fixed sum.
Legislation:	Family Law Rules 2004 (Cth) Sch 3
Cases cited:	Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Division:	Appeal Division
Number of paragraphs:	32
Date of hearing:	23 July 2021
Place:	Sydney (via video link)
The Applicant:	Self-represented litigant
Counsel for the Respondent:	Mr Duc (direct brief)

ORDERS

SYC 59 of 2010
EAA 66 of 2021
EAA 67 of 2021

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR SCOTT

Applicant

AND:

MS MUNAYALLAN

Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	23 JULY 2021

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 16 June 2021 in Appeal No. EAA 66 of 2021 is dismissed.

2.The Application in an Appeal filed on 16 June 2021 in Appeal No. EAA 67 of 2021 is dismissed.

3.The applicant is to pay the respondent the costs of the applications fixed in the sum of $1,022.67.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scott & Munayallan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

ALDRIDGE J:

INTROUDCTION

1. This is the hearing of two applications to extend time to appeal against orders made by a judge of the Family Court of Australia on 9 and 10 July 2020. The orders concern the parties’ two children, born in 2007 and 2010. That is over a year ago.

   APPEAL NO. EAA 66 OF 2021

2. Pursuant to orders made by Berman J on 15 August 2019 the children live with the mother (“the respondent”) and spend significant and substantial time with the father (“the applicant”). That time included significant time over the school holidays.

3. The orders made on 9 and 10 July 2020 had the effect of returning the children to the respondent and suspending the time that they were to spend with the applicant. At the time of the making of these orders the primary judge directed that a child inclusive conference take place, a memorandum be prepared for the benefit of the Court and that the matter be listed before a senior registrar in September 2020 for the purpose of an interim parenting hearing.

4. For reasons that are not entirely clear, it seems that the interim parenting hearing did not take place until March 2021. On 30 March 2021, Senior Registrar Campbell (as his Honour then was) made orders providing that the children spend time with the applicant at weekends.

5. The matter is apparently listed before Henderson J on 26 July 2021, which is next week, although there is some dispute between the parties as to whether it is listed for parenting or property purposes, or both, but in any event, apparently an application is to be made that Henderson J disqualify herself. In any event, the applicant seeks an adjournment of his application until two months after that date because there is, in effect, no point in two courts dealing with the same thing.

6. That is not quite correct. The application for an extension of time deals with the orders made in July 2020. The application before Henderson J, to the extent it includes parenting, deal with orders that should be made in the future, but for the present the parenting arrangements are governed by the orders of 30 March 2021.

7. In those circumstances it seems to me that there is no point in adjourning the proceedings because there are presently in place parenting orders, which will not be affected by the outcome of the appeal and, therefore, there will be no unnecessary overlapping.

8. I also take into account the significant period of time that has elapsed since the orders, the subject of the proposed appeal, were made.

9. Accordingly, I decline to adjourn the proceedings.

   APPEAL NO. EAA 67 OF 2021

10. At the time of the orders, the subject of the proposed appeal, the children were living with the respondent and spending substantial and significant time with the applicant pursuant to orders made by Berman J on 15 August 2019.

11. The matter came before the primary judge on 9 July 2020 where, relevantly, the following orders were made:

    6.Leave is granted to the [respondent] to make an oral application for a recovery order today.

    7.The [applicant] is to cause the child… born… 2007 to return to the [respondent’s] care by 5pm today, 9 July 2020.

    8.A recovery order is made and is to lie in the Registry to be activated upon notification to my Associate that Order 7 herein has not been complied with.

    9.Leave is granted to the [respondent] to make an oral application to stay Orders of 15 August 2019 in relation to the children spending time with the [applicant].

    10.Orders 3, 4, 5 and 6 of Orders made 15 August 2019 are stayed, pending further Order.

12. Neither the reasons for the orders made on that day nor the transcript is presently available and the basis of the orders is not known.

13. The applicant asserts that the issue was whether the child should already have been returned to the respondent under the 15 August 2019 orders. He submits that the primary judge erred in making the order for the return of the child because, on his calculation of the time under the orders, that was not due to occur on 12 July 2020.  That submission, however, does not explain the other orders, which had the effect of suspending any time that the children were to spend with the applicant pending further order.

14. The reasons for the orders that were made on 10 July 2020, however, include the following, which suggests that the orders made on 9 July 2020 may have been made for more substantial reasons:

    22.I formed the view yesterday, consistent with the Family Law Act 1975 (Cth) (“the Act”), the evidence before me, and the principles and factors set out in section 60CC(2) and (3) of the Act, that the orders of his Honour Berman J, made as shortly ago as 15 August 2019, that the children live with [the respondent], are the orders in the children’s best interest.

15. As I have said, the matter returned to Court on 10 July 2020 because the applicant had not returned the children pursuant to the orders of 9 July 2020 and had himself filed an Application in a Case seeking a stay of the 9 July 2020 orders. Her Honour declined to stay the orders she had made on 9 July 2020, saying:

    23.I have also formed the view that given the [applicant’s] attitude to the children living with the [respondent] and the war that he has waged in relation to this issue since those orders were made, that for a period of time, his time with his [children] who he dearly loves – of that there is no doubt – ought be suspended.

16. The principles that are applied to an application of the present kind were set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J said:

    …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 & 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 194-5; 70 ALR 185. 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 263-4; 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 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

    “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

17. The aim is to do justice between the parties. The present applications were both filed on 16 June 2021, which is over 11 months after the orders which are sought to be appealed were made.  The affidavits in support of the applications were both sworn on 16 January 2021. That is an extensive delay, which is unexplained.

18. The applicant’s affidavits deal extensively with the further hearing of the matter, which was to take place before a senior registrar on 16 September 2020, but was apparently not reached.  After some to and fro, it was listed again on 11 November 2020, where the hearing was, according to the applicant himself, a “shambles” because his solicitor was not properly prepared (Applicant’s affidavit filed on 16 June 2021, paragraph 24).

19. The hearing was adjourned to a date to be fixed. Ultimately, it came before Senior Registrar Campbell (as his Honour then was) on 30 March 2021, where weekend time between the children and the applicant was restored. No explanation at all is proffered for the delay between January 2021, the date of the swearing of the affidavit, and the filing of the applications some five months later.

20. What is apparent, however, is that between the date of the making of the orders and the hearing of the present application, the matter has been before the Court on a number of occasions for the purpose of attempting a hearing on interim parenting orders subsequent to the orders of July 2020. That hearing finally took place in March 2021.

21. I remain of the view that there has been an extensive and largely unexplained delay commencing these proceedings. Insofar as the appeal concerns orders for the return of the children and recovery orders, it is now futile as those orders have been executed.

22. As further parenting orders have now been made by Senior Registrar Campbell, the appeal again appears to be of no utility. Even if the applicant is successful, ultimately, on an appeal, that will not affect the order that was made by Senior Registrar Campbell on 30 March 2021.

23. I am informed that the matter is again before a judge of the Family Court of Australia next week on 26 July 2021, in relation, possibly, to both parenting and property matters.  As the applicant himself said in his submissions, there is now a doubling up of proceedings.

24. The Notices of Appeal against each of the orders made on separate days, as contained in the applicant’s affidavits both filed on 16 June 2021, are in identical terms and can be dealt with together.

25. Grounds 3 and 4 assert a want of procedural fairness and denial of natural justice, but neither the Notices of Appeal nor the applicant’s affidavit identify the particular act or omission of the primary judge that is said to constitute the relevant behaviour. The same can be said of the assertion of apprehended bias, Ground 8, and the failure properly to concern the evidence. These grounds of appeal are generic in nature and entirely unparticularised. It is difficult, if not impossible, therefore, to assess the prospects of success of these grounds.

26. Ground 5 asserts a lack of adequate reasons. Those reasons from the hearing of 9 July 2020 are not available. Having regard to the reasons from the hearing on 10 July 2020, which are extensive, that will be a difficult ground to make out. It is to be noted, of course, that the adequacy of reasons is a different issue as to the correctness of them.

27. In the absence of a transcript, it is impossible to assess the grounds of excessive judicial intervention and bullying, which are Grounds 7 and 8.

28. The last two grounds, again numbered as Grounds 7 and 8, assert that the primary judge erred by not waiting for further evidence from the applicant and that the primary judge committed the respondent to make an oral application, but did not allow the applicant to do so. That ground is hard to understand, at least in relation to the orders made on 10 July 2020, because the applicant himself relied on a written application filed at short notice.

29. Nonetheless, I shall proceed on the basis that none of the proposed grounds of appeal could be taken as strong.

30. Taking all these matters into account and, in particular, the extensive and unexplained delay and the fact that the two sets of orders of 9 and 10 July 2020 have now been overtaken by parenting orders made on 30 March 2021, thus rendering the appeals futile, each application will be dismissed.

    COSTS

31. The applications have been wholly unsuccessful and the circumstances therefore justify the making of an order of costs in favour of the respondent. The amount claimed has been assessed in accordance with Sch 3 of the Family Law Rules 2004 (Cth), and in my opinion, it is an appropriate sum.

32. There will be an order requiring the applicant to pay the respondent the costs of the applications fixed in the sum of $1,022.67.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       3 August 2021