Voet & Rummage - [2023] FedCFamC1A 129

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Voet & Rummage [2023] FedCFamC1A 129

Appeal from: Orders dated 1 February 2023

Appeal number: NAA 201 of 2023

File number: PTW 8299 of 2022

Judgment of: AUSTIN J

Date of judgment: 9 August 2023

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Application to extend time to appeal from interim parenting orders – Where the time for filing an appeal from the orders lapsed months before – Where the father complains the magistrate was biased – Where no disqualification application was made to the magistrate at the hearing – Where the father alleges deprivation of procedural fairness – Where the father was legally represented at the hearing – Where no evidence upon which the father wanted to rely at the hearing was rejected – Where there was no objection taken to any evidence adduced by the mother at the hearing – Where the father is bound by the way in which the case was conducted by his lawyers – Where the father did not identify mistaken findings – Where the findings made by the magistrate were apparently uncontentious – Where the father’s complaint that not all evidence was properly considered is mere speculation – Where the father’s complaint of inadequate reasons seems specious – Where the proposed grounds of appeal lack merit – Where the father’s explanation for his extensive delay is inadequate – Application dismissed.

Legislation: Family Law Act 1975 (Cth) Pt VII

Cases cited:
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Whitmore & Whitmore [2022] FedCFamC1A 75

Number of paragraphs: 29

Date of hearing: 9 August 2023

Place: Sydney (via Microsoft Teams)

The Applicant: Litigant in person

Solicitor for the Respondent: Bannerman Solicitors
ORDERS

NAA 201 of 2023
PTW 8299 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR VOET

Applicant

AND:
MS RUMMAGE

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

9 August 2023

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 31 Jul 2023 is dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Voet & Rummage has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

Before the Court for determination is an application to extend time to appeal from the interim…

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 Voet & Rummage

Details

AGLC: Voet & Rummage [2023] FedCFamC1A 129
Case: [2023] FedCFamC1A 129
Decision Date

CaseChat Overview and Summary

The father filed an application to extend time to appeal from the interim parenting orders made by a magistrate of the Magistrates Court of Western Australia on 1 February 2023. The time for filing an appeal from the orders lapsed on 1 March 2023. The application was filed on 31 July 2023. The court was required to determine whether the application should be granted, and if so, on what terms. The key issues were whether there was a substantial issue to be raised on appeal and whether the delay in filing the application was justified.

The court found that the proposed grounds of appeal lacked merit. The father's complaints about bias, procedural fairness, and the magistrate's findings and reasons were not supported by the evidence. The father was legally represented at the hearing and did not raise any complaints at the time. He was bound by the conduct of his lawyers and could not now complain about their performance. The findings made by the magistrate were apparently uncontentious and the reasons given were adequate. The proposed appeal from the substantive orders was intended to challenge the decision for the child to live with the mother in Sydney and for the child to spend time and communicate with the father. However, the result fell within the ambit of the dispute constructed by the parties and was not inexplicable other than by the imputation of some unidentified appealable error. The appeal had no reasonable prospect of success. The delay in filing the application was considerable and the father's explanation for it was inadequate. The mother and child had already relocated to Sydney, where they would suffer prejudice if the appeal were to proceed.

The application to extend time to appeal was dismissed.

Orders