Justice Denied: Late Appeal Application Dismissed in Pekkanen v Pekkanen

Citation:

Pekkanen & Pekkanen [2024] FedCFamC1A 97

Introduction:

In the Federal Circuit and Family Court of Australia, the case of Pekkanen & Pekkanen [2024] FedCFamC1A 97 involved an application for review of a decision made by the appeal registrar. The applicant sought leave to file an appeal out of time. Justice Austin presided over the matter, ultimately dismissing the application due to the lack of a reasonable explanation for the delay and the unlikelihood of success in the proposed appeal.

Facts:

• Parties Involved: Mr. Pekkanen (Applicant), Ms. Pekkanen (Respondent)
• Nature of the Case: Application for leave to file an appeal out of time
• Initial Judgment: Pekkanen & Pekkanen [2024] FedCFamC2F 46
• Date of Judgment: 18 June 2024
• Decision: Application dismissed

Issues:

1. Did the applicant provide an adequate explanation for the delay in filing the appeal?
2. Did the proposed appeal demonstrate any reasonable prospect of success?

Rule:

• Family Law Act 1975 (Cth) Pt VII
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38

Cases Cited:

• CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
• De Winter and De Winter (1979) FLC 90-605
• Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Analysis:

Key Paragraphs:

1. Paragraph 1: The applicant sought review of the appeal registrar’s decision to reject his Application in an Appeal seeking leave to file an appeal out of time. The application was dismissed on the basis that there was no adequate explanation for the delay, and the proposed appeal showed no reasonable prospect of success.
2. Paragraph 12: The applicant's reliance on a document from Country B to support his case was deemed inadmissible, following the principles established in CDJ v VAJ. The absence of this document meant that Grounds 1 and 2 of the appeal would inevitably fail.
3. Paragraph 13: The applicant cited difficulties in acquiring the document from Country B due to political instability. However, the document was procured shortly after the judgment, raising questions about why it was not obtained earlier.
4. Paragraph 14: The primary judge noted the applicant's failure to disclose a compensation payment of $42,500 received in 2022, which was added back as a notional asset. Any trivial error in the total value of this payment was considered immaterial.

Reasons for Judgment:

Justice Austin dismissed the application primarily because the applicant did not provide a satisfactory explanation for the delay in filing the appeal. Additionally, the proposed appeal lacked any reasonable prospect of success, particularly due to the inadmissibility of the crucial document from Country B.

Take Home Lesson:

Timeliness is crucial in legal proceedings. Failure to provide adequate justification for delays can result in dismissal, and appeals must have a reasonable prospect of success supported by admissible evidence.