Andrew and Eager
[2014] FamCAFC 4
•21 January 2014
FAMILY COURT OF AUSTRALIA
| ANDREW & EAGER | [2014] FamCAFC 4 |
| FAMILY LAW – APPEAL FROM A DECISION OF A FEDERAL CIRCUIT COURT JUDGE – Application for extension of time to file an appeal against an order dismissing a contravention application – Where the first instance judge dismissed the contravention application without hearing - Where the contravention application was drafted incorrectly and found by the judge to be fatally flawed – Where the husband knew of the time limit but could not afford to pay the appeal filing fee – Where a lack of procedural fairness was established but the possible merits of the appeal is the central question – Where the appeal is doomed to fail - Application dismissed. |
Family Law Act 1975 (Cth)
| Family Law Rules 2004 |
| Clivery & Conway [2007] FamCA 1435 |
| APPLICANT: | Mr Andrew |
| RESPONDENT: | Ms Eager |
| INDEPENDENT CHILDREN’S LAWYER: | Carmel Torney |
| FILE NUMBER: | DNC | 159 | of | 2013 |
| APPEAL NUMBER: | NA | 72 | of | 2013 |
| DATE DELIVERED: | 21 January 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 21 January 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 August 2013 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carmel Torney |
Orders
The application in an appeal filed on 29 November 2013 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Andrew & Eager has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 72 of 2013
File Number: DNC 159 of 2013
| Mr Andrew |
Applicant
And
| Ms Eager |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The parents of two girls and a boy, J, born in 1997, L, born in 2000 and E, born in 2011 (“the children”) are involved in parenting proceedings in the Federal Circuit Court in Darwin. Although there are orders for contact between the father and the children, there have been considerable difficulties.
Judge Harland dismissed the contravention application filed by the father on 22 April 2013 on 13 August 2013. There was no hearing of the application nor any submissions in relation to it by the father or any party. The judge said (T’script p.3 l.26 – 31):
HER HONOUR: …The other thing is your contravention application. I have looked at your contravention application, and it’s fatally flawed. A contravention application is a serious application, and it needs to be drafted precisely. The contraventions that you allege are not precise enough for the mother to respond. And also, some of them go back to 2005/2007. Your application, based on the documents you filed, cannot succeed and I’m going to dismiss it.
The father did not file a notice of appeal from that order within the prescribed time by the Family Law Rules 2004 – that is 28 days. On 29 November 2013 the father filed an application in an appeal seeking as follows:
1. That an extension of time to appeal be granted to Mr [Andrew].
2.That the appointment of Mr [K] as a McKenzies Friend to Mr [Andrew’s] appeal be allowed.
As I understand it, Mr K is present today with Mr Andrew. He has been given permission to sit with him and assist him with the paperwork and generally in these proceedings.
The explanation for failing to file the notice of appeal within time and the explanation for the delay is the father’s employment as a driver six days per week requiring him to rise at 5.00 am and returning home at 7.15 pm. He has little time off. Mr Andrew explains that he is not particularly good at paperwork.
It seems the applicant knew of the time limit for filing a notice of appeal but says he was unable at the time to pay the fee for filing. This financial difficulty the father says is partly due to the high level of child support paid by him.
The father is self-represented, having previously been refused legal aid. Attached to the father’s affidavit is a draft notice of appeal. In essence the father complains that there was no hearing of his contravention application and that the conduct of the proceedings by the judge demonstrated bias against him. The order sought by the father is that the order dismissing his application for contravention be set aside and in effect the matter be re-heard by another judge.
Principles
The basis for an extension of time is that to refuse leave an injustice would be caused to the applicant.
In Clivery & Conway [2007] FamCA 1435 the well-known principles in Gallo v Dawson (1990) 93 ALR 479 were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Discussion
While in this case there may be an explanation for the delay the possible merits of the appeal is the central question.
The judge may have denied the applicant procedural fairness by not hearing submissions as to whether his application should be dismissed, in effect summarily. However, not every denial of procedural fairness will lead to an appeal being allowed.
The father also understandably is very concerned that no reasons were given for the dismissal of his application. As I mentioned, the only reasons available are those contained in the transcript. In the circumstances of this case, it is understandable that as the judge was not dismissing the application for contravention of its merits, very little was necessary in terms of reasons.
Reference to the application for contravention filed by the father reveals that the judge was correct.
There is therefore no utility in an appeal as it would be doomed to fail.
In addition, as the application was not heard on its merits there is no reason why the father could not file another application seeking orders based on the contraventions by the mother.
The affidavit of the father filed 22 April 2013 in support of the contravention application contains very serious allegations. The father’s allegations are corroborated in part by his partner Ms S. I understand that further affidavits have been filed by various other family members. An Independent Children’s Lawyer has been appointed. It is hoped that this matter will be given some priority. It is noted that the matter is adjourned to 11 February 2014.
Costs
At the conclusion these proceedings the Independent Children’s Lawyer asked for an order for costs. The application was based on the poor prospects of success of the application and the necessity for the Independent Children’s Lawyer to appear. It is certainly correct that it has been most helpful for the Independent Children’s Lawyer to appear on this occasion, however in my view there should not be an order for costs. It could be said that a lawyer looking at this application would have been able to explain to Mr Andrew that it was unlikely to succeed as the original order was not made based on the merits. However, in the circumstances where there was no explanation to Mr Andrew by the judge and in the circumstances that no reasons were given, it is not surprising that Mr Andrew has been aggrieved by the order that was made and taken the only step that he thought was available to him and that was to seek leave out of time to file an appeal. In those circumstances, there are no particular reasons that would justify in terms of the provision of the Family Law Act 1975 (Cth) an order for costs.
Conclusion
The application should be dismissed. There should be no order as to costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Court delivered ex tempore on 21 January 2014.
Associate:
Date: 21 January 2014
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