Tedja and Sony - [2014] FamCAFC 35

FAMILY COURT OF AUSTRALIA

TEDJA & SONY

[2014] FamCAFC 35

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is no satisfactory explanation provided by the applicant for not filing the appeal within time – where the appeal has no merit – where the prejudice to the applicant if the appeal is not allowed does not and cannot outweigh the prejudice to the respondent if the application is granted – application dismissed.

Family Law Act 1975 (Cth) – s 94AAA (1), (5), (10), (11) & (12)

Family Law Rules 2004 (Cth) – r 22.02, r 22.03, r 22.11, Chapter 22

CDJ v VAJ (1998) 197 CLR 172
Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Tedja

RESPONDENT:

Ms Sony

FILE NUMBER:

MLC

7099

2012

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

26 February 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

26 February 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

6 May 2013

LOWER COURT MNC:

[2013] FCCA 211

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Ms Barclay

SOLICITOR FOR THE RESPONDENT:

Women’s Legal Services Victoria

Orders

The application in an appeal filed on 14 October 2013 be dismissed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 62 of 2013
File Number: MLC 7099 of 2012

Mr Tedja

Applicant

And

Ms Sony

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

The application before the court is the application in an appeal filed by

Mr Tedja on 14 October 2013. In that application he seeks a number of orders, only one of which though can be before this court at this time, and that is an application for an extension of time to file a Notice of Appeal against the orders made by Judge Connolly on 6 May 2013.
The other orders sought in the application are first, leave to adduce further evidence, and secondly, security for costs. I propose to dismiss the application for those orders because, to repeat, it is not open to the applicant to seek such orders at this time. They are matters for the Full Court if the proposed appeal is able to proceed.
Turning to the application for an extension of time, there is an affidavit filed in support of that application. The affidavit in effect comprises two sections. The first section is headed “Request to allow extension of time by filing an Application in an Appeal” and there are paragraphs numbered 5 through to 15 under that heading. Those paragraphs address, as it seems…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tedja and Sony

Details

AGLC: Tedja and Sony [2014] FamCAFC 35
Case: [2014] FamCAFC 35
Decision Date

CaseChat Overview and Summary

In this case, Mr Tedja, the applicant, filed an application for an extension of time to lodge an appeal against the orders made by Judge Connolly on 6 May 2013. The appeal was opposed by Ms Sony, the respondent, who was represented by counsel. Mr Tedja's application was made on 14 October 2013 and sought an extension of time to file a Notice of Appeal against the orders made by the Federal Circuit Court in a family law matter. The applicant also sought leave to adduce further evidence and security for costs, however, the court dismissed these orders as they were not matters for the Family Court of Australia at that time.

The primary legal issue the court needed to decide was whether the applicant's application for an extension of time should be granted. Relevant statute law and rules of court included sections 94AAA(1) and (5) of the Family Law Act 1975 (Cth) and rules 22.02, 22.03, and 22.11 of the Family Law Rules 2004 (Cth). The court also considered relevant case law such as Gallo v Dawson (1990) 93 ALR 479, McMahon and McMahon (1976) FLC 90-038, and Tormsen and Tormsen (1993) FLC 92-392.

The court found that Mr Tedja had not provided an adequate explanation for his failure to file a Notice of Appeal within the prescribed time. The applicant had argued that he was not in a financial position to file an appeal and had made attempts to obtain legal aid and other legal assistance, but these efforts were ultimately unsuccessful. However, the court was not satisfied with the explanation provided, as there was no evidence presented to support the applicant's claims of financial hardship.

The court also found that the proposed appeal had no merit, as the grounds of appeal did not identify any appealable errors by the trial judge. Furthermore, the court noted that the respondent would suffer clear prejudice if the application was granted, as the orders had been in place for some time and the respondent had been able to proceed on that basis.

In conclusion, the court dismissed the application for an extension of time, finding that the applicant had not provided an adequate explanation for his delay in filing the appeal and that the appeal had no merit. The court also found that the prejudice to the respondent if the application was granted outweighed the prejudice to the applicant if the application was refused.

Orders