What happened

The Family Court (Tree J) dealt with an Application in an Appeal filed by the husband (Mr Carbry) on 16 January 2020 seeking two primary orders: (a) an extension of time to lodge a Notice of Appeal against orders made in the Federal Circuit Court on 13 December 2019 (and, as he later asserted, against some earlier orders), and (b) waiver of filing and Auscript fees associated with the proposed appeals. The underlying contest concerned a former matrimonial home which the wife, acting under prior court directions, had put on the market and entered into sale contracts. The primary judge ordered on 13 December 2019 that the husband vacate the property, refrain from interference with sale, and remove personal items: orders the husband did not challenge within the prescribed 28 day period.

The husband attempted to lodge his Notice of Appeal shortly after the 28 day period expired; his filing was rejected on 14 January 2020 and he filed an Application in an Appeal two days later on 16 January 2020. The husband also sought, orally at the hearing on 3 March 2020, an adjournment to permit supplementation of his affidavit material. Tree J heard argument and reserved judgment. By reasons delivered 27 March 2020 the application for adjournment was dismissed, the Application in an Appeal dismissed in its entirety, and the husband was ordered to pay the wife's costs (Orders).

Key factual points driving the hearing were: (i) the husband had remained in the property after separation and resisted vacating, (ii) the sale process had twice been affected by the husband's conduct, the primary judge recording interference which frustrated settlement, (iii) the husband's supporting material for his extension application was scant and provided no sworn particulars of efforts to procure legal advice in the limited time between 13 December 2019 and the expiry of appeal time, and (iv) the grounds of appeal the husband advanced were largely incoherent and did not disclose any arguable error in the primary judge's decision (see MERITS OF APPEAL and LENGTH OF DELAY sections).

Why the court decided this way

Three central legal and practical considerations determined the outcome.

The framework for extending time (procedural rule and discretionary principle)
- The Court began (and adopted) the well-established principle that the discretion to enlarge procedural time limits must be exercised only to prevent injustice: the rules must prima facie be obeyed and an applicant must provide material upon which the court can exercise its discretion (the judgment cites Gallo v Dawson for this exposition, RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES). The factors commonly relevant include: the nature and history of the proceedings; length and explanation for the delay; merits of the appeal; and prejudice to the respondent.
The husband provided an inadequate explanation for delay
- Although the delay in lodging the notice of appeal was numerically short (some three days beyond the 28 day limit), the husband’s sworn affidavit gave only a sparse and legalistic complaint (asserting, for example, that orders were in "contravention" of authorities and that over Christmas he lacked available legal advisors): there was no sworn evidence of attempts to secure legal assistance or particulars explaining why he could not himself draft and file an appeal (LENGTH OF, AND EXPLANATION FOR, DELAY para 3-4). The court held this explanation inadequate.
The lack of any realistic prospect of success
- When the Court considered the grounds the husband proffered, it found them nigh incomprehensible and failing to point to any mistaken exercise of judicial discretion or error in law on the primary judge’s part (MERITS OF APPEAL paras 1-13). The primary judge’s findings, notably that the husband had actively interfered with the proposed sale and sought to frustrate proceedings, including by reliance on a so-called 'bark treaty' and claims about 'parse syntax grammar', were well open on the evidence and were not vulnerable to any identified ground of appeal. The Court emphasised that, when extension is sought to file an appeal, the prospects of success on the appeal are a necessary ingredient of the discretion.

These considerations combined to produce a finding that refusal to grant extension would not work an injustice: the rules ought to be enforced, and the husband had not established cause to depart from them. Equally, the application to adjourn was dismissed as futile: even provision of further material would not alter the hopeless merits; and there was an imminent settlement of a second contract for sale due on 30 March 2020.

Finally, because the application failed entirely and the Court was satisfied it was without merit and likely part of litigation strategy to frustrate earlier orders, costs were awarded against the husband (COSTS paras 1-3).

Before and after state of the law

Before: The established law (as distilled in Gallo v Dawson and authorities cited) already required a strong, justice-proving case to be made before courts exercise a broad discretion to extend procedural time limits. Relevant factors for consideration, history of proceedings, length and explanation of delay, merits of the appeal, and prejudice to the respondent, were long established.

After: This judgment applies those established principles in a family law appellate context and reinforces two practical points:

A short delay alone is not determinative; a proper sworn explanation and evidence of attempts to obtain legal assistance (if that is to be relied upon) are necessary.
A court will not adjourn or extend time where the proposed appeal is demonstrably without merit, because doing so would be an exercise in futility and an improper use of discretion.

The case therefore affirms and applies the existing doctrine; it does not create a novel legal principle. It is an illustration, in the family law appellate context, of how the established Gallo principles operate in practice.

Key passages with plain-English translation

"For the reasons which follow, the husband's applications must be dismissed." [Introduction para 3]
- Plain-English: The judge concluded early that the husband's requests would be refused; the reasons that follow explain why.
"It can therefore be seen that the length of delay is very short." [Length of Delay para 2]
- Plain-English: The husband only missed the filing deadline by a few days; that fact alone is not enough to get him relief.
"The appeal wholly lacks merit." [Merits of Appeal para 13]
- Plain-English: The proposed grounds of appeal are hopeless; there is no realistic case that the primary judge made an error which an appellate court would correct.
"To extend time for the filing of a Notice of Appeal, the merits of which are completely lacking, would not be a proper exercise of the judicial discretion." [Evaluation]
- Plain-English: Even if there were sympathy for why the documents were late, the law does not permit stretching time limits when the appeal itself is baseless.
"It seems likely that it was part of a deliberate strategy on the part of the husband to seek to frustrate earlier orders of the court." [Costs para 2]
- Plain-English: The Court thought the application was not a genuine attempt to preserve rights but a tactical move to delay enforcement of earlier orders; that influenced the costs outcome.

What fact patterns trigger this precedent

This judgment is directly relevant where:

An applicant seeks an extension of time to appeal family law orders, particularly concerning property and possession of family home; and
The application is made only slightly out of time but is supported by an inadequate sworn explanation (no evidence of attempts to secure legal assistance or incapacity), and
The proposed grounds of appeal are incoherent, do not point to identifiable errors in the primary judge's reasoning, or are otherwise lacking in merit; and
There are pressing practical consequences if delay is permitted (for example, imminent settlement of sale contracts), and the application may be part of an attempt to frustrate enforcement of earlier orders.

In such circumstances, as Tree J illustrates, a court will be predisposed to refuse an adjournment and deny extension because the primary barrier is the absence of any prospect of success on appeal.

How later courts have treated it

This judgment itself is a reasoned application of established authorities (notably Gallo v Dawson). The decision records and applies known principles rather than announcing a new rule. The judgment does not cite subsequent appellate consideration of its own reasoning. Users seeking whether later courts have cited or followed this particular Family Court Full Court or single-judge reasoning will need to consult case citators or databases for post-2020 citations; nothing in the reasons identifies subsequent treatment. The practical take-away for practitioners is doctrinal rather than novel: the established Gallo factors remain decisive and, in family law appeals, courts will expect a coherent, substantiated showing of injustice combined with some prospect of success.

Still-open questions

Several issues remain matters for judicial assessment in other fact patterns and are not definitively resolved by this judgment:

How much and what form of evidence will satisfy a court that a self-represented litigant made genuine but unsuccessful attempts to secure legal advice in the short window before an appeal deadline? Tree J criticised the husband's lack of particulars (LENGTH OF DELAY), but did not detail the threshold of proof required. Practitioners should supply contemporaneous communications, lawyer rejections, or evidence of incapacity where relevant.
The weight to be accorded to imminent commercial consequences (such as settlement) was acknowledged but given little weight in this case because of the absence of merits; in other cases where merits are closer, how courts will balance prejudice to the respondent (loss of a sale) against potential injustice to the appellant remains contextual.
The judgment touches on tactical uses of procedural applications to frustrate orders; but the standard of proof for determining that an application is part of a deliberate strategy is inherently fact-specific. What threshold facts will justify costs orders against applicants will depend on the circumstances and available evidence.
When previous orders (not just the most recent) are sought to be attacked, the judgment makes clear that applicants must explain and justify delay in relation to each order, but it does not lay down specific time-limits or formulae for older orders; courts will continue to assess delay for each challenged order on its own history.
The judgment refers to highly unusual and incoherent arguments advanced by the husband (the 'bark treaty' and 'parse syntax grammar'). While those particular submissions were properly rejected as lacking merit, the decision does not further elucidate how courts should manage litigants who advance non-standard or pseudo-legal theories, beyond declining to entertain baseless claims. Trial judges and appellate courts still face practical questions about case management and supporting litigants who are self-represented while safeguarding the court process.

Practitioners encountering similar fact patterns should ensure: (a) prompt filing where possible; (b) robust sworn evidence explaining any short delay and detailing unsuccessful attempts to engage advisers; (c) clearly articulated grounds of appeal which identify errors of law or fact in lower court reasons; and (d) an appreciation that courts will refuse to stretch procedural rules where the appeal is hopeless.

Judgment (34 paragraphs)

[1]

Carbry & Hazart [2020] FamCAFC 67 (27 March 2020)

[2]

[2020] FamCAFC 67

[3]

FAMILY LAW - APPLICATION IN AN APPEAL - Extend time to file a Notice of Appeal - Where incomprehensible and unmeritorious challenges advanced by the husband - Where the appeal wholly lacks merit - Where no adequate explanation for the delay in filing a Notice of Appeal - Oral application to adjourn the hearing of the Application in an Appeal dismissed - Application in an Appeal dismissed - Husband to pay the wife's costs as assessed.

[4]

Family Law Act 1975 (Cth)

[5]

Family Law Rules 2004 (Cth) r 1.14(1) and r 1.21

[6]

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

[7]

[2019] FCCA 3627

[8]

(1) The husband's oral application to adjourn the hearing of his Application in an Appeal filed 16 January 2020 is dismissed.

(2) The husband's Application in an Appeal filed 16 January 2020 is dismissed.

(3) The husband is to pay the wife's costs of and incidental to his Application in an Appeal filed 16 January 2020 within twenty-eight (28) days of their assessment.

[9]

Note: The form of the order is subject to the entry of the order in the Court's records.

[10]

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carbry & Hazart has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

[11]

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).

[12]

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS

[13]

On 13 December 2019, pursuant to an Application in a Case filed by Ms Hazart ("the wife") the primary judge made orders that required Mr Carbry ("the husband") to vacate the parties' former matrimonial home at C Town, in the D Region ("the property"). Ancillary orders were also made, restraining the husband from entering the property thereafter, from having contact with the real estate agent conducting the sale, or any perspective purchaser, of the property. He was also, by injunction, required to remove all of his personal items from the property.
No appeal from those orders was brought within the time limited for its institution. Now, by Application in an Appeal filed 16 January 2020, the husband seeks two orders. The first is to extend time in which to lodge an appeal, not only in relation to the primary judge's orders, but also in relation to two earlier sets of orders said to have been made by both the primary judge, and another Federal Circuit Court Judge. The second order the husband seeks is that the court "waive the filing and Auscript fees associated with these appeals". For her part, the wife resists the Application in an Appeal, and seeks that it be dismissed.
On 3 March 2020 I heard the Application in an Appeal (together with an oral application by the husband to adjourn the hearing) and reserved my decision. For the reasons which follow, the husband's applications must be dismissed.

[14]

The property is a part of land which has been owned by the husband's family since 1867. The means by which it came into the husband's (and later, his and the wife's joint) ownership is unclear, but irrelevant.
The parties are in dispute as to the date of the commencement of their de facto relationship (seemingly either 1995 or 1999) or its cessation (either April 2016 or April 2017), but on any view it was of lengthy duration. It appears as though during the course of the relationship the husband, or perhaps the parties, established a plant nursery business on the property. The husband appears to assert that he continues to operate that business there.
The parties' relationship bore one child, a son presently aged six, albeit shortly to turn seven.
After separation, the wife and child moved out of the property, and the husband remained living there. That remained the situation as at the time of the primary judgment, and indeed the hearing of the husband's Application in an Appeal.

[15]

During the course of the hearing on 3 March 2020, I alerted the husband to the potential deficiencies in his affidavit filed in support of his Application in an Appeal. Particularly, as I shall later discuss, I noted the complete lack of any particulars of efforts which, prior to the expiry of the time in which he could appeal, he had made, albeit unsuccessfully, to procure legal assistance.
That prompted the husband to seek an application to adjourn the hearing, so as he could augment his material in that respect. I then heard argument about that, and indicated I would deliver my decision in due course, but otherwise, to cover the eventuality that application was unsuccessful, heard the arguments relating to the Application in an Appeal filed 16 January 2020.
The overriding consideration in an application for an adjournment is where the interests of justice lie. Here, as shall be seen, a further contract for the sale of the property is due to settle on 30 March 2020. If the matter were to be adjourned, there is no certainty that the husband could file additional material, and the matter be heard and determined, prior to then.
However there is a more fundamental difficulty. As shall be seen shortly, the husband's appeal is wholly without merit. To adjourn the hearing of the husband's Application in an Appeal seeking to extend the time to file the appeal would, in those circumstances, be an exercise in futility, in that even if the husband were able to augment his material with evidence of his unsuccessful attempts to obtain legal assistance, the application would still be doomed to fail.
I therefore dismiss the husband's application to adjourn the hearing, and will now proceed to deal with the Application in an Appeal.

[16]

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

[17]

Rule 1.14(1) of the Family Law Rules 2004 (Cth) ("the Rules") provides that "(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order."
Whilst there are no criteria specified either in the primary Family Law Act 1975 (Cth) or the Rules relevant to the exercise of that jurisdiction, in Gallo v Dawson (1990) 93 ALR 479 at 480-481, McHugh J said:

[18]

[A] notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O 60, r 6 to support her application. That rule provides that the court or a justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v. Scott [1986] FCA 365; (1986) 12 FCR 187 at 194-195; ; When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see ; at 872; , at 263-4; at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: , at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in at 12; at 935:

[19]

The following factors are established by the authorities as being potentially relevant:
- The nature and history of the proceedings;
- The length of the delay, and any explanation for the same;
- The merits of the appeal; and
- Any prejudice or other consequence for the respondent if leave is granted.

[20]

The wife commenced the principal proceedings on 31 July 2018. They concern both parenting and property matters. According to the chronology contained in the primary judge's reasons, although when the matter was first before Judge Coates on 2 October 2018, the husband was ordered to file his material in response by 16 October 2018, he did not in fact do so until 19 August 2019. By then, the matter had been before other judicial officers, including Judge Purdon-Sully on 17 April 2019. On that occasion her Honour made a number of orders including:
1. That by 4:00pm on 17 May 2019 the husband will provide to the solicitors for the wife a signed letter evidencing an unconditional grant of approval by a financier of a loan to refinance the mortgage over the property at [B Street], [C Town] more particularly described as Lot ... on ... being the whole of the land comprised in Title Reference ....
2. That in the event the husband is not able to comply with Order 1 herein, the property will be listed for sale within 24 hours and the wife will be appointed trustee on behalf of both the husband and herself for the purpose of sale.

[21]

It is not in contention that no letter evidencing an unconditional grant of approval by a financier was provided by the husband within the time stipulated by the first order, and accordingly, as the primary judge correctly identified, the sale of the property was triggered, and under the second order, was to be listed for sale within 24 hours.
Exercising her powers as trustee for sale, on 20 August 2019 the wife entered into a contract for the sale of the property, which, after it became unconditional, was due for settlement on 25 October 2019.
However the husband did not vacate the property, despite requests by the wife's solicitor to do so, which resulted in her filing, on 22 October 2019, an application seeking, in substance, the orders which were ultimately made by the primary judge on 13 December 2019.
At [37] of the reasons, the primary judge said:
1. I am further satisfied on the evidence of [Ms E] filed on 28 October 2019 and 27 November 2019 that the respondent has actively interfered with the proposed sale. As a result the sale did not settle on 25 October 2019.
I do not understand that last sentence to be controversial.
I will consider the somewhat unusual aspects of the hearing before the primary judge when considering the merits of the appeal.

[22]

LENGTH OF, AND EXPLANATION FOR, DELAY IN BRINGING APPEAL

[23]

Given that the orders were pronounced on 13 December 2019, it is not contentious that the time for bringing an appeal as of right (subject to any argument as to leave being required) was 28 days, which given r 1.21, meant that time expired on 13 January 2020. The husband's attempt to file his Notice of Appeal on 14 January 2020 was rejected. His subsequent Application in an Appeal to extend time was filed 16 January 2020, only some three days outside of the time for lodgement of the appeal. The Notice of Appeal annexed to that application was purportedly signed by the husband on 13 January 2020.
It can therefore be seen that the length of delay is very short.
However, as I have already adverted to, the husband's explanation for the delay advanced in his affidavit also filed 16 January 2020 is scant. At paragraph 21 he merely says:
1. On 13 January 2020, it came to my attention that the Orders granted in favour of the [wife] against me are in contravention of Case Authorities and the Family Law Act 1975 which should have prevented the Applicant from ever being granted agency rights over a property too which I had a valid equitable interest, prior to facts being fully tested at Trial.

[24]

Some further explanation is advanced, but not sworn to, in the Application in an Appeal itself, where at paragraph 1.A. of Part D the husband says "in relation to the 13 December 2019 hearing of Judge Middleton, a lack of legal advisors available over the Christmas period of which to assist me in drafting an affidavit for the court in assessing the proceedings to date". However, beyond this assertion, there is no material which speaks to unsuccessful efforts which the husband made after 13 December 2019 to seek legal representation or assistance, or indeed why he himself could not draft a Notice of Appeal, such as he did, and attached to his application to extend time to file a Notice of Appeal.
The husband's material does not demonstrate an adequate explanation for his delay, very short though it be.

[25]

The grounds of appeal set out in the Notice of Appeal signed by the husband on 13 January 2020 are as follows:
1. The judge erred by breach of the fair hearing rule, breach of procedural fairness and breach of statutory requirement s42 of the Family Law Act 1975 and breach of his sworn oath to uphold the law to unfairly accept the orders made by the [wife's] legal team, who failed to follow the mandatory required process to disclose important materials and service of documents to all parties prior to hearing in the correct manner.
2. The judge erred by exercising jurisdiction in excess, an abuse of process and failed to apply the rules of procedural fairness, failing the objective test and as such breached the fair hearing rule by making orders that facilitated the [wife] to obtain 'agency' on the [husband's] behalf, allowing the [wife] to sell the family property that would make the [husband] homeless and jobless, ignoring the legal requirement for the proper review and audit of the marital assets as would be tested at trial.
3. The judge erred by failing to apply the Family Law Act 1975 as it relates to property settlement under s79 of the Family Law Act and related case authorities, and as such is an abuse of process and breach of procedural fairness principles.
4. The judge erred by not following the mandatory provisions and the intention of the Family Law Act and breached the principle of legality as it relates to:
  1. The manner in which interim orders are made for finance, by failing to apply the binding precedent of stare decisis as 'in the marriage of cilento', and

[26]

It is extremely difficult to understand these grounds of appeal, or to construe them in a way that engages with any of the evidence, or the primary judge's reasons.
Moreover, at Part D of the Notice of Appeal signed by the husband on 13 January 2020, the only details of the orders said to be appealed are those made by the primary judge on 13 December 2019, but in the Application in an Appeal, the extension of time is sought in relation to not only the orders made on that occasion, but also an earlier hearing before the primary judge (seemingly, said in the husband's affidavit filed 16 January 2020, to be on 12 August 2019) and the hearing before Judge Purdon-Sully on 17 April 2019. In the orders which are sought in the Application in an Appeal, the following are said in relation to those two previous decisions:

[27]

In relation to the previous hearing of Judge Middleton, a miscarriage of justice in that the orders made were in contravention of higher court authorities to which I did not have legal, mental or financial capacity to defend at the time.

[28]

In relation to the previous hearing of [Judge] [Purdon]-Sully a miscarriage of justice in that the orders made were in contravention of higher court authorities to which I did not have legal, mental or financial capacity to defend at the time.
To the extent that these should, given the husband's self-represented status, be regarded as if they are additional grounds in the proposed Notice of Appeal, again it is difficult to construe them in a way that asserts error in the exercise of a judicial discretion, or any other proper ground of appeal.
It is for the husband to persuade me that his appeal is meritorious. That is necessarily a difficult task, given the nigh incomprehensible assertions made in the grounds of appeal.
Moreover, none of the matters contended in relation to any of the orders appear to have been raised before either the primary judge or Judge Purdon-Sully. Whilst I do not have the previous reasons for judgment in the materials before me (and indeed, have been unable to locate any orders made by the primary judge on 12 August 2019) in the primary judge's reasons for the orders of 13 December 2019, the conduct of the first instance proceedings is discussed. Particularly, it appears as though, despite the husband having not filed a response to the wife's Application in a Case filed 22 October 2019, he nonetheless sought to resist the orders on the basis that there was a "bark treaty" (at [39]) relating to the property between himself and an aboriginal tribe, a paper variant of which was tendered into evidence. Inexplicably, also tendered into evidence without objection was what was described by the primary judge as "the paper version of the bark treaty in 'correct parse syntax grammar performance'" (at [40]).
The primary judge's reasons detail that thereafter the husband "argued that the proceedings were fraudulent, because all of the documents filed in the proceedings were not in the proper "parse syntax grammar"" (at [43]). The primary judge records that the husband then informed him that ""parse syntax grammar" is a form of language of which he is a practitioner, that is based on mathematical accuracies so as to avoid the possibility of english words being misunderstood" (at [44]).
All of this apparently culminated in what the primary judge recorded at [46] of the reasons, as follows:

[29]

PREJUDICE OR CONSEQUENCE FOR WIFE IF EXTENSION GRANTED

[30]

In her affidavit filed 18 February 2020, the wife deposed to a second contract having been entered into for the sale of the property on 19 January 2020, which is due for settlement on 30 March 2020. Inferentially she says that she does not wish to lose a second sale of the property, which might be the consequence if there was an extension of time in which to bring the appeal, given that the appeal would thereafter not be determined for some period of time.
I accept that is the case, but in the overall scheme of things, I give such prejudice little weight.

[31]

The husband has failed to demonstrate any merit in the proposed appeal, and moreover, advances under its cover matters which were not advanced before the primary judge. To the extent that the husband seeks to challenge orders other than those made 13 December 2019, the basis for the attack is completely opaque.
Whilst the period of time subject to the application to extend time arising from the 13 December 2019 orders is slight, to the extent that leave is sought in relation to earlier orders, the period of time is considerable. There is no adequate explanation for the delay in filing a Notice of Appeal in relation to the 13 December 2019 orders, and none whatsoever for any previous orders.
To extend time for the filing of a Notice of Appeal, the merits of which are completely lacking, would not be a proper exercise of the judicial discretion. It therefore follows that the husband's Application in an Appeal, insofar as it seeks an extension of time in which to bring the appeal, must fail. That failure obviates the need to consider the further orders sought in relation to waiving the filing and Auscript fees.

[32]

The husband's Application in an Appeal filed 16 January 2020 should be dismissed in its entirety.

[33]

At the conclusion of the hearing, Queens Counsel for the wife sought an order for costs.
I have little information as to the parties' financial circumstances, although the husband contends the wife earns considerably more than he does. The application has failed in its entirety, and is without merit. It seems likely that it was part of a deliberate strategy on the part of the husband to seek to frustrate earlier orders of the court.
I am satisfied that it is appropriate in these circumstances that the wife should have an order for costs in her favour. There will therefore be an order that the husband pay the wife's costs of and incidental to the husband's Application in an Appeal, within 28 days of their assessment.

[34]

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 27 March 2020

Gallo v Dawson

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