YABON & TABANO
[2019] FamCAFC 159
•17 September 2019
FAMILY COURT OF AUSTRALIA
| YABON & TABANO | [2019] FamCAFC 159 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR AN EXTENSION OF TIME – Where ex tempore reasons were delivered – Where no written reasons were available to file a notice of appeal within the specified time – Where application was allowed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.03 |
| Dobey & Shey [2019] FamCAFC 68 |
| APPELLANT: | Mr Yabon |
| RESPONDENT: | Ms Tabano |
| FILE NUMBER: | BRC | 8367 | of | 2016 |
| APPEAL NUMBER: | NOA | 80 | of | 2019 |
| DATE DELIVERED: | 17 September 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 17 September 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 July 2019 |
| LOWER COURT MNC: | Not available |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Jurgensen of Jurgensen Horne Lawyers |
Orders
The applicant is granted an extension of time in which to file an appeal against the orders of Judge Purdon-Sully made on 26 July 2019.
The Notice of Appeal be filed and served within fourteen (14) days after delivery of the settled reasons for decision of Judge Purdon-Sully.
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 Yabon & Tabano 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: NOA 80 of 2019
File Number: BRC 8367 of 2016
| Mr Yabon |
Appellant
and
Ms Tabano
Respondent
EX TEMPORAE REASONS FOR JUDGMENT
Mr Yabon (“the father”) wishes to appeal against parenting orders made by Judge Purdon-Sully on 26 July 2019 in which she made orders that Ms Tabano (“the mother”) have sole parental responsibility for the parties three children aged 12, 11 and nine years. (“the children”). Her Honour’s orders provided that the children have no time or communication with the father.
By Application in an Appeal filed on 2 September 2019 the father seeks an extension of time in which to appeal. The Independent Children's Lawyer does not oppose the granting of an extension, the mother opposes the order sought.
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that an appeal must be filed within 28 days after the order appealed from is made.
The principles relating to applications for an extension of time to file a notice of appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave. It is also necessary to consider the delay, its magnitude and the reason advanced for the delay.
The exercise of discretion also involves an assessment of prospects of a successful appeal because if the appeal is devoid of merit it would be futile to make the order sought. This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the court on the application.
The father is self-represented and in support of his application says that he attempted to file a Notice of Appeal against her Honour’s orders on 26 August 2019. The Notice was returned to him because he was, at that time, beyond the 28 day period prescribed by the Rules. The husband accepts his fault and says that he believed, albeit wrongly, that he had 28 business days in which to file an appeal. The time for filing his appeal expired on 23 August 2019. His application for extension of time was filed on 2 September.
I am satisfied that the father has offered a reasonable explanation for the delay and having considered the magnitude of the delay I am of the view that, of itself, should not stand in the way of an extension of time.
However, as I have said, part of the determination of this application is a consideration of the merits of the proposed appeal. Although the father has attached to his application for extension of time, a draft notice of appeal, there are no reasons for decision. It seems that her Honour’s orders and reasons for decision were delivered orally. However no settled reasons have yet been provided. A copy of her Honour’s orders of 26 July 2019 were provided to the father on 5 August 2019.
True it is that the operation of the Rule contemplates the filing of a Notice of Appeal within 28 days after the making of the order sought to be challenged. However, it visits a significant disadvantage on litigants in deciding whether to bring an appeal if they do not have the reasons for decision on which they can seek advice as to the prospects of the proposed appeal.
I am unable, in the absence of the reasons for her Honour’s decision, to assess the merits of the proposed appeal, however in my view that is insufficient reason to refuse the application for extension of time.
In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195, the court said:
The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period.
Both in Mareet & Colbrooke [2018] FamCAFC 254 and in EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214, the court granted an extension of time in like circumstances (see too Dobey & Shey [2019] FamCAFC 68 and Pannet & Crain [2018] FamCAFC).
Here, the settled reasons are still not available. Notwithstanding that that means the merits of the appeal are not able to be assessed, neither should this fact stand in the way of an extension of time.
There remains but one issue and that is the utility of the making of the order. I understand that the final hearing of the parties parenting applications has been set down for three days on 11, 12 and 13 November 2019 before the primary judge. I observe that there is no application that the appeal be expedited, but even if there was, I am unable to imagine that the appeal could be heard and determined in that time or, if it was and the orders set aside, that there could be a redetermination of those issues before the hearing dates.
However, from what I can deduce from the grounds of appeal, issues of child safety were agitated before her Honour. I am in all of the circumstances prepared to grant an extension of time in which to bring the appeal.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered ex tempore on
17 September 2019.
Associate:
Date: 17 September 2019
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