Weaver and Drake
[2011] FamCAFC 91
•4 April 2011
FAMILY COURT OF AUSTRALIA
| WEAVER & DRAKE | [2011] FamCAFC 91 |
| FAMILY LAW - APPEAL – Application to extend time to appeal – Where applicant has not pursued the application – Where the material filed in support of the application does not reveal any likely merit in the proposed grounds of appeal – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| APPELLANT: | Ms Weaver |
| RESPONDENT: | Mr Drake |
| FILE NUMBER: | (P) PAC | 3952 | of | 2007 |
| APPEAL NUMBER: | EA | 120 | of | 2010 |
| DATE DELIVERED: | 4 April 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 4 April 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 June 2010 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| REPRESENTATION FOR THE APPELLANT: | No appearances |
| REPRESENTATION FOR THE RESPONDENT: | Self Represented |
Orders
That the application to extend time to file the Notice of Appeal filed on 17 September 2010 against the orders of FM Dunkley made on 8 June 2010 is dismissed.
That there is no order for costs.
Note: That the respondent father has not sought an order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Weaver & Drake is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: EA 120 of 2010
File Number: PAC 3952 of 2007
| Ms Weaver |
Appellant
And
| Mr Drake |
Respondent
REASONS FOR JUDGMENT
As is not in doubt from the record of this Court, the matter was before this Court for directions on 22 October 2010. Neither party appeared at that time. It could be said that, to the extent that he did not appear, the respondent, Mr Drake, took the chance that the application might succeed in his absence. Ms Weaver was informed that the matter was listed that day.
The respondent, Mr Drake, who is in Court, informs the Court that he advised the Court that he would be unable to attend on 22 October 2010. As noted earlier, the focus of interest for present purposes is what the applicant, Ms Weaver knew about that date because, as is not in doubt, she did not appear on that date.
The file reveals that when the application to extend time was filed it was, as is usual, not allocated a return date, but it is apparent from the file that on 7 September 2010 the Appeals Registrar wrote to Ms Weaver pointing out certain defects in the material which she had filed. Ms Weaver had written to the Court on 24 August 2010 setting out various matters.
On 6 October 2010, the Appeals Registrar wrote to both parties advising that the matter was to be heard before this Court on 22 October 2010. The letter pointed out that a party could seek leave to appear by telephone. The address to which the letter advising of the listing date was directed to the applicant is the same address as appears on correspondence issued by the applicant on 27 August 2010 and in her letter of complaint to the Chief Justice on 18 October 2010.
After the matter was before the Court and no-one appeared on 22 October 2010, the parties were advised of the orders of 22 October 2010. There does not appear to have ever been a subsequent request by Ms Weaver to relist her application, although there does seem to have been some correspondence between Ms Weaver and the Appeals Registrar.
On 17 March 2011 the Appeals Registrar wrote to both parties advising that the matter was listed at 10.00 am today in order for the Court to consider whether to dismiss Ms Weaver’s appeal for want of prosecution. The matter was called shortly after 10 am. It is now 10.35 am. Ms Weaver does not appear. There has been no contact made between Ms Weaver and the Court. It might be noted that daylight saving time having ended in this state on Saturday, any possible confusion about the time the matter would be before the Court could not arise, insofar as that 10.00 am in this state is again the same time as 10.00 am in the state of Queensland.
The Court is satisfied that Ms Weaver has had every opportunity to attend to prosecute her application for an extension of time within which to appeal the orders of Dunkley FM. Her explanation for failing to appeal within time could be regarded as adequate if there emerged, from material filed on her behalf, a basis for concluding that her challenge to the learned Federal Magistrate’s decision may have had merit.
Nothing to which this Court has been referred by Ms Weaver or discerned for itself, having carefully analysed the totality of the material in the Court file, provides a basis for concluding that his Honour erred in the exercise of his discretion on 8 June 2010.
As is apparent from the four proposed Grounds of Appeal, one of the purported Grounds cannot possibly be a Ground of Appeal. That is Ground 4. Indeed, Ground 4 may well explain why, notwithstanding that she filed an application for an extension of time within which to appeal, Ms Weaver has subsequently done nothing to seek to challenge his Honour’s decision.
The second and third Grounds in the proposed Notice of Appeal are not Grounds of Appeal, however liberally they are interpreted, which could give rise to a successful appeal against the learned Federal Magistrate’s reasons for judgment, in the absence of far more than the applicant has provided. They involve conclusions which do not appear to be entirely consistent as between the two proposed Grounds, but do not assert appealable error on the part of the learned Federal Magistrate. Indeed, it is difficult to see how, if Ground 3 had any possible substance, Ground 2 could possibly be successful, and even if it were, that would not render his Honour’s exercise of discretion erroneous.
Ground 3 provides, to the extent it is necessary, and it is not, support for concluding that his Honour’s discretion probably did not miscarry.
The first proposed Ground of Appeal does not, beyond making the essential broad assertion contained in it, provide anything to indicate that the learned Federal Magistrate’s discretion miscarried.
In the circumstances, the Court is satisfied that, notwithstanding the absence of any demonstrable likelihood of merit if Ms Weaver is given an extension of time within which to appeal, there is nothing before this Court to indicate that Ms Weaver is the slightest bit interested in doing so. Indeed, as the correspondence on the Court file makes clear, her energies appear, since the filing of her application for an extension of time to appeal, to have been rather more devoted to writing letters to the Chief Justice and others complaining about officers of the Court.
Mindful as the Court is that there is no appeal against the dismissal of an application of this kind, save by way of application for special leave to the High Court, the Court concludes that on the material before it, to fail to dismiss this application would be to countenance an abuse of the Court’s processes and to unfairly and unjustly cause the respondent unnecessary inconvenience, and possibly expense.
Accordingly, the application for an extension of time to appeal against orders of the Federal Magistrates Court of 8 June 2010, filed 24 August 2010 will be dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 4 April 2011.
Associate:
Date: 20.04.11
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