Bailard and Rahman (No. 2)
[2020] FamCAFC 75
•9 April 2020
FAMILY COURT OF AUSTRALIA
| BAILARD & RAHMAN (NO. 2) | [2020] FamCAFC 75 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Appeal against interim parenting orders – Reasonable explanation for the delay – Where it is difficult to identify any error in the course followed by the primary judge or the orders that were made – Where the appeal is doomed to fail and futile – Application dismissed. |
| Mental Health Act (2007) (NSW) ss 22, 27 Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 |
| APPLICANT: | Ms Bailard |
| RESPONDENT: | Mr Rahman |
| FILE NUMBER: | PAC | 3609 | of | 2019 |
| APPEAL NUMBER: | EAA | 129 | of | 2019 |
| DATE DELIVERED: | 9 April 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 26 March 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 October 2019 |
| LOWER COURT MNC: | [2019] FCCA 3566 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Fay Rose Legal |
Orders
The Application in an Appeal filed on 29 November 2019 is dismissed.
There be no order as to costs.
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 Bailard & Rahman (No. 2) 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 129 of 2019
File Number: PAC 3609 of 2019
| Ms Bailard |
Applicant
And
| Mr Rahman |
Respondent
REASONS FOR JUDGMENT
By an Application in an Appeal filed on 29 November 2019, Ms Bailard (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against interim parenting orders made by a judge of the Federal Circuit Court of Australia on 15 October 2019.
The applicant and Mr Rahman (“the respondent”) are the parents of X (“the child”), who was born in 2016. On 15 October 2019, the primary judge heard an urgent oral application by the respondent for interim care arrangements of the child. There was no appearance by the applicant at the hearing before the primary judge. The primary judge noted in his written reasons for judgment that at the time of the hearing, the applicant had been detained pursuant to s 22 and s 27 of the Mental Health Act (2007) (NSW) (at [4]). The applicant confirmed that this was the case, although her position is that the detention was entirely unwarranted and unlawful.
The orders made on 15 October 2019 provided for the child to live with the respondent (Order (2)). An order was also made restraining the applicant from attempting to take the child into her care or attending the respondent’s premises or any premises where the child might be from time to time (Order (3)). The proceedings before the primary judge were adjourned to 12 November 2019 (Order (4)).
The principles to be applied in relation to an application for an extension of time in which to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J said:
…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 & Agency Co of Australasia Ltd [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) 12 FCR 187 at 194-5; 70 ALR 185. 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 Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 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: Vilenius v Heinegar (1962) 36 ALJR 200 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 Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal. The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the Family Law Rules 2004 (Cth) (“the Rules”) will work an injustice.
The delay in this matter is not extensive because any Notice of Appeal against the orders of the primary judge made on 15 October 2019 should have been filed on or before 12 November 2019 (r 22.03 of the Rules) and the application for an extension of time was filed reasonably promptly thereafter. Clearly, the applicant was in difficult circumstances at the time. The respondent’s solicitor accepted that this was a reasonable explanation for the applicant’s delay in bringing the proceedings.
Turning to the merits of the proposed appeal, it cannot be controversial that at the time of the hearing before the primary judge, the applicant was not in a position to care for the child because she was involuntarily detained, regardless of whether that detention was necessary or lawful. The applicant’s response, when this was raised with her was that if she had the care of the child, she could have made arrangements to have the child looked after by her relatives. It is difficult to see how that could have been possible for her to arrange, given her detention. Certainly, there was no suggestion to that effect before his Honour.
It is, therefore, very difficult to identify any error in the course followed by the primary judge or the orders that were made.
Consistently with the course that should be followed when ex parte orders are made, his Honour adjourned the proceedings for a very short time so as to permit the applicant to attend Court and be heard on what interim parenting orders were in the best interests of the child. This is, in fact, what occurred.
I am informed by the respondent’s solicitor, without any objection, that on 2 December 2019, the primary judge reconsidered the interim parenting orders made on 15 October 2019. The applicant appeared and adduced evidence. The outcome was that the child remained in the care of the respondent but orders were made for the child to spend supervised time with the applicant at a contact centre. It is most unfortunate that difficulties arose which have prevented the applicant from attending the contact centre to see the child.
The point is, however, that the orders made on 15 October 2019 have been overtaken by subsequent events and the current parenting arrangements for the child are now governed by the orders that were made on 2 December 2019.
It is, therefore, difficult to identify any point to the present appeal. Even if it was successful, the later orders made on 2 December 2019 would remain in place.
Further, pursuant to r 16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), a party has an entitlement to seek to set aside an order made in his or her absence. Whether or not a formal application was made to that effect, the hearing before the primary judge on 2 December 2019, at which the applicant was present, was an opportunity for the orders made on 15 October 2019 to be reconsidered in her presence, as they in fact were.
I am conscious of the difficulties that the applicant faces and the difficulties with obtaining legal representation. However, it would not be in the interests of justice for the appeal to be pursued when it is doomed to fail and is futile (Jackamarra v Krakouer at 521).
The application for an extension of time will be dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 9 April 2020.
Associate:
Date: 9 April 2020
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