Zamani & Morad
[2024] FedCFamC1A 222
•28 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Zamani & Morad [2024] FedCFamC1A 222
Appeal from: Orders 1 and 2 made 29 June 2023 Appeal number: NAA 302 of 2024 File number: 4866 of 2022 Judgment of: AUSTIN J Date of judgment: 28 November 2024 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Extension of time to file Notice of Appeal – Where the applicant seeks an extension of time to bring an application for leave to appeal against interlocutory spousal maintenance orders made in June 2023 – Where the applicant argues the respondent’s financial circumstances have changed – Where the applicant asserts the need for the immediate termination of the interim spousal orders – Where the applicant does not assert any legal, factual or discretionary error by the magistrate – Application for extension of time dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII, s 83 Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Hall v Hall (2016) 257 CLR 490; [2016] HCA 23
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 19 Date of hearing: 28 November 2024 Place: Perth The Applicant: Litigant in person Solicitor for the Respondent: Legal Aid WA ORDERS
NAA 302 of 2024
4866 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ZAMANI
Applicant
AND: MS MORAD
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
28 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 15 November 2024 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 Zamani & Morad has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These reasons explain the dismissal of the applicant’s application for an extension of time within which to file an application for leave to appeal from orders made by a Western Australian magistrate some 17 months ago in June 2023.
Background
The parties married in 2014 and separated in early 2022.
Some months afterwards, proceedings were commenced by the respondent seeking financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
Within that cause of action, the respondent brought interlocutory applications for various forms of financial relief. Relevantly for present circumstances, she sought orders compelling the applicant to pay her interim spousal maintenance, which application he resisted. The dispute was heard by the magistrate in June 2023. Judgment was reserved overnight and pronounced the next morning, with oral reasons given for the judgment.
The magistrate made these two orders:
1.Until further order of the Court and with commencement from 31 March 2023, the [applicant] pay to the [respondent] interim spousal maintenance in the sum of $350 per week.
2.The arrears of interim spousal maintenance accrued pursuant to these orders is to be paid off by the [applicant] at an additional payment of $50 per week until all arrears are discharged.
Those orders were made because the magistrate found the respondent could not adequately support herself, the applicant was in secure employment, his income exceeded his expenditure by about $475 per week, and he did not adequately explain large transactions in his bank accounts, though the oral reasons do not explain why the order was quantified at $350 per week in lieu of some other amount not exceeding $475 per week.
Being interlocutory financial orders, any application for leave to appeal from them ought to have been filed by 27 July 2023. None was.
On 15 November 2024, the applicant filed an Application in an Appeal seeking these orders:
1.Request an extension to file documents for appealing the order issued on June 29, 2023.
2.Request a hearing and review of the notice of appeal.
3.Dismiss the interim spousal maintenance orders, paragraphs 1 and 2, dated 29, 2023.
4.Reimburse the spousal maintenance payments made since July 17, 2024, when I sent my official request to [the respondent’s] lawyer.
5.Grant permission to issue subpoenas to any financial institution where [the respondent] has an interest, including any accounts operated by her.
6.Allow [the applicant] to serve a copy of these orders upon financial institutions such as the Commonwealth Bank of Australia.
7.Freeze [the respondent’s] accounts at the Commonwealth Bank of Australia…
(As per the original)
Despite the applicant’s ambition, only the application for Order 1 can be presently entertained. The applications for the other orders must await determination of the anterior question of whether the applicant ought to be permitted to seek leave to appeal out of time and, if the extension of time is granted, the respondent must be allowed more time within which to prepare to meet the application for leave to appeal and any subsequent appeal.
In support of the belated application for an extension of time to file an application for leave to appeal from the subject orders, the applicant relied upon his affidavit filed on 15 November 2024 in which he relevantly deposed this:
2.I am requesting acceptance of the extension on the application for an appeal due to [the respondent’s] new financial circumstances. The new Form 13 financial statement from her lawyer indicates a significant change in her financial situation, which I believe warrants a cancellation or review of the spousal maintenance amount.
…
8.On July 17, 2024, I requested Legal Aid to stop spousal maintenance. I believe that, given the duration of my payments, [the respondent] has had ample time to find proper employment, upskill or provide evidence of actively seeking employment. Not only did she fail to do so, but she also voluntarily resigned from her part-time job. Additionally, I requested an updated Form 13 financial statement and updated disclosure. I have attached the letter to Legal Aid, marked as ‘B’ in the annexure.
…
11.After a few letters exchanged between Legal Aid and me, I finally received the Form 13 financial statement on November 8, 2024.
12.In [the respondent’s] Form 13, the accounts mentioned in paragraph 7 show a balance of $27,400. Attached is [the respondet’s] Form 13 financial statement, marked as ‘C’ in the annexure.
13.Previously, on Nov 2022 [the respondent] submitted form 13 financial statements with zero saving on her accounts. attached is form 13 of [the respondent’s] financial statements marked as “D” in the annexure.
…
18.I seek the order to dismiss the interim spousal maintenance orders, paragraphs 1 and 2, dated June 29, 2023.
Within the draft Notice of Appeal upon which the applicant intends to rely, the grounds of appeal are pleaded as follows:
1.I have just received [the respondent’s] financial statement in Form 13. Based on this statement, she appears to be in a stable financial situation with over $28,000 in her savings account. Given her current financial condition, I request that her spousal maintenance be ceased.
2.I have gathered documents proving that her income is higher than what she claimed in her Form 13. Although she stated that her income, including spousal maintenance, just covers her expenses, she has accumulated over $28,000 in savings since the initiating of the spousal maintenance. This contradicts her previous claim of having no savings and being in a critical financial situation.
3.We separated over two years and ten months ago, and she has been receiving spousal maintenance for about one year and four months. She has had ample time to secure stable employment or at least make efforts to upskill and find a job. Not only has she failed to do so, but she also voluntarily resigned from her previous part-time job, indicating a good financial condition and suggesting that she no longer needs spousal maintenance.
The applicant evidently believes that, because the respondent’s financial circumstances are now more favourable than they were 17 months ago, the immediate discharge of the interim spousal maintenance orders is justified. Though that is his aim, he fails to distinguish between two quite different concepts: on the one hand, an appeal from a judgment on account of some form of appealable error and, on the other, a fresh application within original jurisdiction to vary an interlocutory order on account of changed circumstances.
Legal principles
The legal principles governing the determination of an application to extend time within which to appeal were stated as follows in Whitmore & Whitmore [2022] FedCFamC1A 75:
17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
Those principles are applicable here.
Disposition
Turning directly to the proposed grounds of appeal, they each assert the need for the immediate termination, but not the retrospective discharge, of the interim spousal maintenance orders. Significantly, no proposed ground of appeal alleges the interim spousal maintenance orders are vitiated by an appealable error at the time they were made. The applicant does not assert any legal, factual or discretionary error by the magistrate at that point in time. The focus of the applicant’s attention is entirely fixed on financial developments over the time elapsed since the orders were made.
The demonstration of appealable error is intrinsic to the success of any appeal conducted by way of re-hearing, as this appeal would be (Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187; CDJ v VAJ (1998) 197 CLR 172 at 201–202 and 233–234; Harris v Caladine (1991) 172 CLR 84 at 124–126). It necessarily follows from the absence of any assertion of appealable error within the proposed Notice of Appeal that the applicant could not demonstrate any such error. It would therefore be pointless to permit the applicant to bring an application for leave to appeal out of time, which makes it unnecessary to comment upon the absence of any reasonable explanation for the delay of some 16 months in filing this application.
The proper remedy for the applicant would be a fresh application brought within the Court’s original jurisdiction seeking either a discharge or a variation of the interim spousal maintenance orders due to changed circumstances, relying upon s 83(1) of the Act (Hall v Hall (2016) 257 CLR 490 at [10]), which observation should not be taken to imply any prediction about the success or failure of such an application.
The proposed appeal is bereft of merit. It would be pointless to extend time within which to file an application for leave to appeal. The Application in an Appeal filed on 15 November 2024 is dismissed.
The respondent filed a Submitting Notice on 25 November 2024, so no question of costs arises.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 28 November 2024
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