Father Seeks Extension of Time to Appeal
Maniadis & Bruce [2022] FedCFamC1A 183 (11 November 2022)
The father filed an Application in an Appeal for an extension of time to file Notice of Appeal. The Court, in resolving this dispute, assessed if there was any substantial issue requiring consideration.
Facts
On 23 August 2022, a magistrate of the Magistrates Court of Western Australia made parenting orders between the applicant father and the respondent mother in respect of their only child, a daughter now aged six years. The orders were later amended under the slip rule on 7 September 2022, but not in a way which affects the current application. The orders provide for the child to live with the mother and to spend substantial time with the father during school terms, in school holiday periods, and on other special occasions. The time within which to appeal from the orders expired on 20 September 2022.
On 4 November 2022, the father filed an Application in an Appeal seeking leave to bring an appeal from the orders out of time. The application is articulated to be for an extension of time “to file documents including a Notice of Appeal”, but aside from the Notice of Appeal there is nothing else to file. If permitted, the father intends to appeal only from the order specifying the amount of time the child is to spend with him, notwithstanding the time already fits well within the definition of “substantial and significant time” within s 65DAA(3) of the Family Law Act 1975 (Cth).
The father relied upon his affidavit filed on 4 November 2022 and a draft Notice of Appeal dated 3 November 2022 (but accepted on 8 November 2022). The draft Notice of Appeal contains 10 separate grounds of appeal, but nine of them are directed to the single proposition that the subject orders do not, in the father’s perception, provide for the child to spend time with him frequently enough. He is perturbed by the child not seeing him for more than four days at any one time, which regime differs from historical arrangements. The same complaint is articulated in the father’s affidavit.
Issue
Whether or not the proposed appeal will raise a substantial issue.
Applicable law
Family Law Act 1975 (Cth) s 65DAA - provides that the court should consider whether the child spending equal time with each of the parents would be in the best interests of the child.
Whitmore & Whitmore [2022] FedCFamC1A 75 - provides that 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.
Analysis
No appealable error in the judgment is revealed simply because the orders change a pre-existing regime of interaction between the child and the father, nor because the father perceives the new arrangement to not be in the child’s best interests. The statement of the father’s confusion about the child’s fortnightly rotations at the commencement of each new school term does not reveal any appealable error. The orders do not reasonably admit of such ambiguity. During school terms, in alternating weeks, the child spends designated time with the father in the first and second weeks. That cycle begins afresh each new school term.
The father’s unawareness of the limitation period is a misfortune rather than an advantage. When he first contemplated an appeal on or just before 7 October 2022, he was already more than two weeks out of time. His delay of another month in filing the application is entirely unexplained. It would seem his motivation for the proposed appeal is only something said to him by the mother about the child on 2 October 2022 during the most recent school holidays; not his own dissatisfaction with the orders or the reasons given for them.
Conclusion
The Application in an Appeal filed on 4 November 2022 is dismissed.
