TABAYAG & GENG
[2017] FamCAFC 223
•25 October 2017
FAMILY COURT OF AUSTRALIA
| TABAYAG & GENG | [2017] FamCAFC 223 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the application for an extension of time is made some 17 months after delivery of judgment by the trial judge – Where there is no reasonable excuse proffered for the failure to file a Notice of Appeal within time – Where there is no arguable case on appeal – Where the respondent would be severely prejudiced if the appeal was allowed to proceed – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs – Where there are circumstances which justify such an order – Costs ordered in favour of the respondent. |
| Family Law Act 1975 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Tabayag |
| RESPONDENT: | Ms Geng |
| FILE NUMBER: | DGC | 1826 | of | 2013 |
| APPEAL NUMBER: | SOA | 52 | of | 2017 |
| DATE DELIVERED: | 25 October 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 October 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 February 2016 |
| LOWER COURT MNC: | [2016] FCCA 266 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Weerappah |
| SOLICITOR FOR THE RESPONDENT: | Carroll Goldsmith Lawyers |
Orders
The application in an appeal filed on 27 July 2017 be dismissed.
The applicant father pay the costs of the respondent mother of and incidental to that application fixed in the sum of nine hundred and five dollars ($905).
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 Tabayag & Geng 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 52 of 2017
File Number: DGC 1826 of 2013
| Mr Tabayag |
Applicant
And
| Ms Geng |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is a hearing in relation to the application in an appeal filed on 27 July 2017 by Mr Tabayag (“the father”). In that application the father seeks an extension of time to file a Notice of Appeal against orders made by Judge Curtain on 17 February 2016, some 17 months previously. The application is supported by an affidavit, and as is required, the father has filed a draft Notice of Appeal, being the Notice of Appeal he would want to proceed on if an extension of time is granted.
The application is opposed by Ms Geng (“the mother”).
Having read the documents I raised with the father a number of problems that I perceived, in terms of him being able to succeed with his application. In particular, I identified for the father the three most important factors that this Court needs to address when an application such as this is before it. First, whether there is a satisfactory explanation for the failure to file a Notice of Appeal within the time provided in the Family Law Rules 2004 (Cth) (“the Rules”), secondly, whether there is an arguable case if the appeal is allowed to proceed, and thirdly, the question of prejudice.
As I also indicated there are other factors which can be addressed, namely the history of the proceedings and the conduct of the parties.
In terms of the issue of the explanation for the failure to file the Notice of Appeal within time, the reason proffered in the father’s affidavit is that he “was not aware of the ability to appeal [the orders of the lower court to] the Appellate Court”.
Having read the documents, and particularly the reasons for judgment of the trial judge, and the extensive draft Notice of Appeal, which I will come to in a moment, I do not accept that reason. It simply does not explain a 17 month delay in bringing this matter before the Appeal Court.
Turning then to the question of whether there is an arguable case on appeal, that brings into play the extensive draft Notice of Appeal filed by the father on 27 July 2017. In my view, that Draft Notice of Appeal is completely inappropriate, and incompetent. Despite its length, and the contents of it, it does not identify appealable errors by the trial judge. What the father has done in 32 of 37 numbered pages is to traverse each and every paragraph of the trial judge’s reasons and put his position in relation to those paragraphs. He has then attempted to tie that in with some very general grounds of appeal which he has identified in paragraph 2 of that document. Then, in the last five pages of that 37 page document, there is a narrative where he has, to use my words, set out a stream of consciousness in relation to his position, what he thinks about the judicial system, what he thinks about the trial judge, what he thinks about the decision, and what he thinks should be happening. And as is obvious from that description, all of that is completely irrelevant and inappropriate to be included in a Notice of Appeal. It does not identify any appealable error by the trial judge, which is what a Notice of Appeal is designed for.
I do not have all of the documents before me which a Full Court would have before it if this appeal was allowed to proceed, including for example the transcript of the hearing before the trial judge, but I note the father says in his Notice of Appeal that he will not be providing the transcript due to financial issues. I did not mention this to the father earlier, but that in itself creates insurmountable problems for the father, in that this was a trial which extended over a number of days before the trial judge in October 2015, and at least I can say this from the contents of the Notice of Appeal, it is readily apparent that a transcript would be necessary to pursue the appeal.
In summary, looking at the documents I do have, I am not satisfied that there is any chance of success of an appeal in the format that the father has presented in his Draft Notice of Appeal.
Turning then to the issue of prejudice.
To repeat, this is a matter where there has been a delay of some 17 months. The decision of the trial judge was delivered on 17 February 2016, and it has taken the father until 27 July 2017 to seek to pursue an appeal. The mother would be severely prejudiced if this matter was allowed to proceed. She is entitled to the fruits of the judgment of the trial judge. The appeal system, and the time limits for filing an appeal are set up such that there is minimal delay between a trial judgment and an appeal, and that clearly has not happened in this case. To repeat, as a result, there would be significant prejudice to the wife.
The principles that are applicable to determining an application such as this are well-known, and are set out in the judgment of McHugh J in the High Court decision of Gallo v Dawson (1990) 93 ALR 479. Primarily what his Honour there said at 480, is that what needs to be addressed in these applications is where the justice of the case lies, and that enquiry is informed by considering the factors that I have mentioned already.
In considering those factors, it is readily apparent that the justice of this case requires that the application be dismissed.
Given that, I now have an application for costs by the mother in the amount of $905. I am told that that is on the legal aid scale, and covers preparation and the appearance in court today of the mother’s legal representative.
I gave the father the opportunity to address me in relation to that application, but his response was to the effect that it was a matter for the court.
In my view, there should be an order for costs.
There are a circumstances here that justify an order for costs being made. This has been an application which has been entirely unsuccessful, and it is an application which at no stage had any prospect of success, and as a result the mother has had to incur legal costs to oppose the application.
I certify that the preceding seventeen (17) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 25 October 2017.
Associate:
Date: 31 October 2017
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