Almond and Sheffield
[2017] FamCAFC 83
•30 March 2017
FAMILY COURT OF AUSTRALIA
| ALMOND & SHEFFIELD | [2017] FamCAFC 83 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s appeal was deemed to be abandoned due to her failure to file a Draft Appeal Index within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Where the applicant seeks the reinstatement of her appeal – Where there is a reasonable explanation for the delay – Application allowed – Applicant to pay the respondent’s costs of the application in a fixed sum. |
| Family Law Act 1975 (Cth) s 117(2A) Family Law Rules 2004 (Cth) r 22.13(2)(a)(i) |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Almond |
| RESPONDENT: | Mr Sheffield |
| FILE NUMBER: | SYC | 855 | of | 2016 |
| APPEAL NUMBER: | EA | 190 | of | 2016 |
| DATE DELIVERED: | 30 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 30 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 October 2016 |
| LOWER COURT MNC: | [2016] FCCA 3416 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr MacDougall solicitor |
| SOLICITOR FOR THE APPLICANT: | Greater Western Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Fowler |
| SOLICITOR FOR THE RESPONDENT: | Garrison Lawyers |
Orders
Appeal No EA 190 of 2016 be reinstated.
The time for filing the Draft Appeal Index be extended up to and including 24 March 2017.
The Applicant pay the Respondent’s costs of the application, fixed in the sum of $1,500, within three months.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Almond & Sheffield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 190 of 2016
File Number: SYC 855 of 2016
| Ms Almond |
Applicant
And
| Mr Sheffield |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
By an Application in an Appeal filed on 6 March 2017, Ms Almond (“the applicant”) seeks reinstatement of her appeal against orders of Judge Henderson made on 13 October 2016. On that day, in proceedings between the applicant and Mr Sheffield (“the respondent”), the primary judge ordered that the applicant cause the child of the parties, X, born in 2013, to be returned to the Sydney metropolitan area within 14 days. The child was to live with the applicant and spend time with the respondent as provided for in the orders.
The background to that order is that the applicant had unilaterally moved to live in B Town in about January 2016. The orders that were made by the primary judge on 13 October 2016 included orders that a family report be prepared in such time as to enable it to be released by 18 April 2017; that the matter be listed on 8 May 2017 for mention; and importantly, that the matter be listed on 10 and 11 August 2017 for final hearing in relation to parenting issues.
It appears from the evidence of the applicant that the orders have not been complied with, and that the child continues to reside with her in B Town. I am informed from the bar table, without dispute, that in response to that the respondent has brought an application to vary the interim orders so that the child is returned to Sydney and live with him. That application has apparently been stood over pending the outcome of this application.
Rule 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) provides:
(2) The appellant must file a draft index to the appeal book within:
(a) 28 days after:
(i) filing the Notice of Appeal; or
(ii) the date when the reasons for judgment that relate to the order the subject of the appeal are issued (being the date of the certificate of the Associate to the Judicial Officer that appears on the published reasons for judgment); or
(b) if the court extends the period mentioned in paragraph (a) - the period ordered by the court.
As I have said, Judge Henderson made orders on 13 October 2016. Her Honour’s reasons were given orally on that date. The written reasons became available to the parties on or shortly after 11 January 2017. The applicant had filed a Notice of Appeal on 21 November 2016. On 9 January 2017 the solicitor for the applicant were informed by the appeals registry that the appeal had been deemed abandoned because no Draft Appeal Index had been filed pursuant to r 22.13(2)(a)(i). At no time did the solicitors for the applicant, either before or after that letter was received from the registry, inform the registry that the reasons for judgment had not yet become available in written form.
Although it is not disclosed in the evidence, I am informed by the applicant’s solicitor, again without opposition, that an application to reinstate the appeal was made shortly after the letter of 9 January 2017 was received, but it was rejected for filing because it sought incorrect orders. The present application was filed on 6 March 2017, which is some delay but which is explained somewhat by the matter to which I have just referred.
It appears that the affidavits in support of the application had not been served. They were made available to counsel appearing for the respondent this morning who very properly, having read them, has indicated to the Court that whilst his client remains concerned about the delay, there is nothing that could properly be said in opposition to the application.
The principles to be applied in this case are set out in the well-known case of Gallo v Dawson (1990) 93 ALR 479. The point is that the Court is to aim to do justice between the parties. In a case where an appeal has been regularly filed, the Court is slow to deny the appellant the right of a hearing simply by reason of a failure to comply with a procedural direction.
The evidence taken into account, together with what I have been informed by the solicitor for the applicant today, satisfies me that there was some confusion on his part as to the impact of the Rules. Certainly with the benefit of hindsight, the Registry could have been informed that the written reasons were not available and that the applicant was relying on r 22.3(2)(a)(ii) of the Rules as the basis for the calculation of time as to when the Draft Appeal Index should be filed.
One matter has concerned me, which is that this matter is listed before the Federal Circuit Court for a final hearing in August this year. I am informed that the Draft Appeal Index was filed on 24 March 2017. If the appeal is reinstated, then there should be a procedural hearing within a few weeks. However, with the best will in the world, this appeal is not going to be listed before September this year. I have raised with the parties the issue as to whether it is more desirable for the appeal or the final hearing to proceed. Nonetheless, the application has been proceeded with. On balance, I am not satisfied that that is a basis for refusing the application.
The appeal will therefore be reinstated and the time for filing the Draft Appeal Index extended up to and including 24 March 2017.
Costs
The respondent seeks an order for payment of costs in this matter. The ordinary rule is that parties to proceedings under the Family Law Act1975 (Cth) (“the Act”) are to bear their own costs but, if the circumstances justify it, the Court may make a different costs order. If the Court does so, it must take into account the matters raised for consideration by s 117(2A) of the Act to the extent they are relevant.
In this matter, the appeal was deemed to be abandoned because of a failure to comply with the Rules. The submission of the applicant essentially is that no error was made by them, but rather the error was made by the Registry. There is some doubt as to whether r 22.13(2)(a)(ii) of the Rules applies when oral reasons have already been given. This is not the place to determine that controversy.
As I have already indicated, at no time before or after the Registry regarded the appeal as having been deemed to be abandoned did the applicant raise with the Registry their reliance on the rule to which I have just referred. The evidence originally placed before the Court did not explain the significant delays in the bringing of the application. Those delays were only explained in the course of submissions today. In short, the applicant was obliged to bring this matter to the Court and be here today. It cannot be said that the application was occasioned by any fault or default of the respondent or their lawyers whatsoever.
The appeal does not have a happy history. The Notice of Appeal was filed one day late, but no point was taken about that by the respondent. The first application to reinstate the appeal was rejected by the Registry as it sought incorrect orders. There was an issue that arose today because the respondent’s counsel asserted that his instructing solicitor had not been served with the affidavits. Certainly I accept that he had not seen them. The matter was stood down so that he could read them. Having done so, he properly and effectively conceded the application. I also take into account the respondent’s evidence, as limited as it is, that she is not in good financial circumstances.
Taking all these matters into account, I’m satisfied that the appropriate order is that the applicant should pay the respondent’s costs. It was properly conceded by the solicitor for the applicant that the amount of $1500 sought by the respondent was an appropriate figure.
I certify that the preceding sixteen (16) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Aldridge delivered on 30 March 2017.
Legal Associate:
Date: 4 May 2017
0