B & J
[2010] FamCAFC 261
•20 December 2010
FAMILY COURT OF AUSTRALIA
| B & J | [2010] FamCAFC 261 |
| FAMILY LAW - APPEAL – Application for an extension of time – Where the notice of appeal was filed one day out of time – Where the reason for the delay in filing was explained –Where there was no prejudice to the father – Where the refusal of an extension of time may work an injustice to the parties – Leave granted FAMILY LAW - COSTS – Reserved to the Full Court |
| Family Law Act (1975) Cth |
| Clivery & Conway [2007] FamCA 1435 |
| APPELLANT: | MS B |
| RESPONDENT: | MR J |
| FILE NUMBER: | BRC | 9299 | of | 2010 |
| APPEAL NUMBER: | NA | 125 | of | 2010 |
| DATE DELIVERED: | 20 December 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 20 December 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 October 2010 |
| LOWER COURT MNC: | [2010] FamCA 1143 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
That the applicant mother be granted leave to file a notice of appeal out of time.
That the time within which the notice of appeal may be filed be extended to 4.00pm on 10 January 2011.
The respondent father’s costs of and incidental to the application be reserved to the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym B & J is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 125 of 2010
File Number: BRC 9299 of 2010
| MS B |
Appellant
And
| MR J |
Respondent
REASONS FOR JUDGMENT
Introduction
An application was filed on behalf of the mother on 23 November 2010 asking that she be granted leave to file an appeal out of time. The mother is only one day out of time.
The application for leave out of time is opposed vigorously by the father. He has filed a response on 6 December 2010 asking that the application be dismissed and asking for costs. In his affidavit he explains succinctly his reasons for resisting the appeal, which includes the history of the matter and that the order from which this appeal is brought was a recovery order, now executed.
The father explains that the children were returned safety to him and that the recovery order was appropriately made given that the children had not been returned to his care after final orders had been made by this court.
In paragraph 11 the father said this:
11.From a practical perspective the Recovery Order has issued and the children have now been returned to my care.
12.I am unclear as to how an appeal against a Recovery Order affects the present situation. If the Applicant is aggrieved by the Orders made by His Honour Bell in 2008 then she should make Application to the court.
These are entirely reasonable submissions and he is correct really, in observing that if there was some fundamental issue about the orders made by Justice Bell in 2008, it would be necessary for the mother to demonstrate that there had been a change in circumstances to warrant a re-hearing.
There really lies the mother’s argument, that there has been some serious allegations made by the children, placed before Bell J at the time of the making of the recovery order.
The orders the mother seeks to appeal are those made on 14 October 2010. If the appeal is successful, she would in effect ask for, a further trial in relation to the two boys asserting that they should not have been returned to the father.
History
The matter has a long history of litigation in this court and concerns the parenting of the two children, E and I J both born in June 1998.
The children have resided with the father since orders were made by Bell J on 14 February 2008. The mother appealed those orders but her appeal was unsuccessful.
Leave out of time application
In Clivery & Conway [2007] FamCA 1435 the well known principles referable to such leave applications was 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.
In this case there is no difficulty with the explanation for the delay.
On 23 November 2010, the mother filed an affidavit in support of her application in this appeal. In that affidavit she sets out the steps she took in an endeavour to file the notice of appeal. These include registration with the Family Court Portal on 2 November 2010 and research in relation to e-filing documents for an appeal. The mother states that her research on the Family Court Portal indicated to her that e-filing was available to her.
On the afternoon of 11 November 2010 the mother telephoned the Family Court with an enquiry in relation to e-filing of the notice of appeal and at that time was told that she was not able to e-file the application. The mother was not able to attend in person at the Brisbane Registry, before the close of business on 11 November 2010, to file the notice of appeal.
On 12 November 2010 the mother attended at the Brisbane Registry to file the notice of appeal. The time for filing the notice had expired on 11 November 2010.
In the affidavit to which I have already referred, the mother makes reference to other factors which contributed to the delay in filing. She explains that following Bell J’s decision on 14 October 2010, the children ran away and she states that they were missing for a period of four days. She also states that on 14 October 2010, her mother was hospitalised for a week to undergo surgery and was then released to into her care.
As I have said, it is necessary to consider the prejudice to the father. I have already referred to the father’s affidavit and his submissions. As he emphasised to me this morning, this matter and the allegations made by the mother were investigated, in a sense by Bell J, when a court councillor was engaged to speak to the boys.
In the judgment of Bell J delivered on 14 October 2010, in paragraph 4 and 5 his Honour said this:
4.[Ms M] [the court councillor] has given evidence, after an order was made by myself, wherein she interviewed the boys only between 10 past 2 and 3.40, I think it was, yesterday afternoon. She refreshingly indicated that she did not wish to burden herself or come to any pre-conceived conclusions by reading material before the Court. She did, however, look at one document, which I think was a letter attached to the affidavit of the applicant father, by a [Mr F], who was the principal of a state primary school, if my memory serves me correctly, in [North Queensland], at which the boys attend.
5.I commend her for that, and she put before me, and I have ordered a transcript of her evidence and I will annex that to my short reasons, because I think it’s essential. She put before me the following matters, and I generalise: (1) that the children wanted to tell her as much as possible as quickly as possible. They talked over each other and they wished to blurt out everything that they could against the father. It was all negatives, as she pointed out. And the only positives that she was able to ascertain – I once again refer to the transcript – was that when the father had been drinking to excess he let them do things which they weren’t allowed to do beforehand. That he did drive whilst under the influence of liquor and as I inferred from her evidence, which I think she inferred from them, that he was charged with drink drinking. I have been informed from the bar table that this is not correct. That he was picked up but that he had too many children in the front seat where he was driving a comparatively short distance.
Various other allegations were made by the children, to which his Honour referred briefly. Apparently his Honour was satisfied with the evidence of Ms M and then made the order.
The concern expressed by the mother is that these matters were not properly investigated and that they are very serious in relation to the safety of the children.
Conclusion
The fundamental issue in this case is whether the granting of an extension of time to appeal is necessary to enable the court to do justice between the parties.
The answer to that question is in the affirmative, although marginally. Balancing the delay of one day, the fact that there is no prejudice to the respondent other than the prospect of an appeal being heard as against what may prove to be limited prospects of success, leave should be granted.
Without considering the merits of the appeal any more than is necessary for this application, it can be seen that to deprive the mother of an opportunity to appeal, where the filing was one day out of time may work an injustice against her.
Leave should be granted.
Costs
The father is seeking the costs incurred in responding to this application.
The mother submitted that she would resist such an order for costs. She explained that she is in receipt of a pension and not earning any income.
In these circumstances the appropriate order is that the costs of and incidental to the application be reserved to the Full Court, so that the outcome of the appeal can be taken into account.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 20 December 2010.
Associate:
Date: 23 December 2010
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