Clements & Witmore

[2021] FedCFamC1A 25

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) – APPELLATE JURISDICTION

Clements & Witmore [2021] FedCFamC1A 25

Appeal from:

Clements & Witmore [2021] FCCA 1169

Appeal number(s):

NAA 14 of 2021

File number(s):

TVC 896 of 2014

Judgment of:

ALDRIDGE J

Date of judgment:

5 October 2021

Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Extensive delay – No merit in grounds of appeal – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) s 102QE

Family Law Rules 2004 (Cth) r 22.03

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.03(1)

Cases cited:

SCVG (2020) FLC 93-967; [2020] FamCAFC 147

Number of paragraphs:

7

Date of hearing:

30 September 2021

Place:

Sydney (via video link)

The Applicant:

Self-represented litigant

The Respondent:

No appearance

ORDERS

NAA 14 of 2021
TVC 896 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CLEMENTS

Applicant

AND:

MS WITMORE

Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	5 OCTOBER 2021

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 14 September 2021 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 Clements & Witmore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE J:

1. On 31 May 2021 a judge of the Federal Circuit Court of Australia ordered that Mr Clements (“the applicant”) “be prohibited from instituting proceedings under the Family Law Act 1975 (Cth) (‘the Act’), without first having obtained leave by the Court to do so, pursuant to s.102QE of the Act” (Order 1).

2. The form of this order requires the applicant to obtain leave under s 102QE of the Act to file an appeal against it (SCVG (2020) FLC 93-967).

3. The applicant wishes to appeal that order and on 14 September 2021 filed an Application in an Appeal seeking leave to do so. His application is supported by an affidavit and a proposed Notice of Appeal. I have taken those into account as well as the applicant’s oral submissions.

4. There is a delay of nearly four months between the date of the order and the filing of the application. At that time, r 22.03 of the Family Law Rules 2004 (Cth) (now r 13.03(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) required any Notice of Appeal to be filed within 28 days. The applicant sought to explain the delay by informing me that:

   (1)He has a mental health issue because he is unable to see his children and he has only recently arrived at a productive period;

   (2)He has had difficulty complying with procedural requirements, and gets no assistance from the court registries and has no one to assist him; and

   (3)He is unable to obtain a grant of legal aid and the legal assistance he has been able to access is of little use, as it consists of only half an hour of generalities.

   Such difficulties are common to many litigants and do not explain the lengthy delay.

5. However, that delay would not necessarily be a barrier to a grant of leave and an extension of time if reasonably arguable grounds of appeal were identified.

6. The proposed Notice of Appeal identifies the following as the matters the applicant wishes to raise:

   (1)The decision is unfair because he has had no legal help for seven years;

   (2)The registry staff are covering up lies from the proposed respondent;

   (3)He does not understand the legal process and receives no help;

   (4)He is unable to obtain legal aid; and

   (5)The legal process in his district is corrupt.

7. None of these identifies a potential error on the part of the primary judge. The proposed appeal could not succeed. Taking that and the extensive delay into account, the application for leave is dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       5 October 2021