BANDE & EARLEY
[2015] FamCAFC 147
•27 July 2015
FAMILY COURT OF AUSTRALIA
| BANDE & EARLEY | [2015] FamCAFC 147 |
| FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the father seeks an extension of time to file a Notice of Appeal – Where the application is opposed – Where there is no adequate explanation for the delay – Where there appears to be an arguable case on appeal – Where there are consequences for the mother and the father if the application is granted or refused – Where the justice of the case requires that the application be allowed. FAMILY LAW – APPEAL – COSTS – Where the mother seeks her costs – Where the father opposes the application on the basis of his financial circumstances – Where there are circumstances here that justify an order for costs – Where the application was only necessary because of the father’s failure to comply with the Family Law Rules 2004 (Cth) – Where impecuniosity is no bar to an order for costs being made where there are circumstances that otherwise justify an order – Costs ordered in favour of the mother. |
| Family Law Act 1975 (Cth) – ss 94AAA(5), (10, (11), (12), 60B, 60CC and 117(2) Family Law Rules 2004 (Cth) – rr 22.02, 22.03, 22.11 and Chapter 22 |
| Gallo v Dawson (1990) 93 ALR 479 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Bande |
| RESPONDENT: | Ms Earley |
| INDEPENDENT CHILDREN’S LAWYER: | Linda Gross |
| FILE NUMBER: | ADC | 3501 | of | 2014 |
| APPEAL NUMBER: | SOA | 12 | of | 2015 |
| DATE DELIVERED: | 27 July 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 April 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 December 2014 |
| LOWER COURT MNC: | NA – Transcript of hearing on 17 December 2014 constituted reasons for judgment |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lindsay |
| SOLICITOR FOR THE APPLICANT: | Adelaide Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Childs |
| SOLICITOR FOR THE RESPONDENT: | Legal Services Commission Noarlunga |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Southern Vales Legal |
Orders made 7 April 2015
The time for the applicant to file and serve a Notice of Appeal be extended to the close of business on Tuesday 21 April 2015.
The judgment in relation to the oral application for costs made by the respondent be reserved.
Order made 27 July 2015
The applicant pay the costs of the respondent of and incidental to the application in an appeal filed on 27 February 2015, such costs to be as assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bande & Earley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 12 of 2015
File Number: ADC 3501 of 2014
| Mr Bande |
Applicant
And
| Ms Earley |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
Before the court is an application in an appeal filed by Mr Bande (“the father”) on 27 February 2015, wherein he in effect seeks an extension of time to file a Notice of Appeal against one of the orders made by Judge Simpson on 17 December 2014.
The application is supported by an affidavit also filed on 27 February 2015. Further, as is required, the father provided the court with an amended draft Notice of Appeal on 1 April 2015 for the purposes of the application, and being the Notice of Appeal that he would want to proceed on in the event that an extension of time is granted.
The application is opposed by Ms Earley (“the mother”).
The application was heard by this court on 7 April 2015, and orders were made that the time for the applicant to file and serve a Notice of Appeal be extended until 21 April 2015, and the judgment on the question of costs be reserved. However, because of time constraints the court indicated that the reasons for judgment would be delivered at a later date. These are those reasons, as well as the court’s decision in relation to costs.
Relevant statute law and rules of court
Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) deals with, inter alia, appeals from the Federal Circuit Court.
Section 94AAA(5) provides:
An appeal under subsection (1) or (1A) is to be instituted within
(a)the time prescribed by the standard Rules of Court; or
(b)such further time as is allowed in accordance with the standard Rules of Court.
Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e)for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12)An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made.
Applicable Principles
The law in relation to applications to extend time is well settled. For example, in the High Court decision of GallovDawson (1990) 93 ALR 479, McHugh J said this at 480:
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.
That decision has been followed in a number of Full Court cases including Tormsen and Tormsen (1993) FLC 92-392.
In summary, as can be seen, the relevant factors which need to be addressed include whether there are adequate reasons to explain the failure to comply with the timeframe for the filing of a Notice of Appeal, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice which cannot be compensated by orders for costs or otherwise, 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. The overarching principle though, is to ensure that injustice is not caused by a strict application of the Rules.
Discussion
As to the relevant factors in this case, those that were identified by the applicant’s counsel and argued were primarily the explanation for the failure to comply with the timeframe for the filing of a Notice of Appeal, and the merits of the appeal. It was also suggested by Mr Lindsay that the consequences to the child, the subject of the proceedings, must be taken into account as well. In other words, “[a] failure to grant the extension of time will delay the evaluation of the risks presented to the child of [the] mother’s illicit drug use” (paragraph 12.5 of the father’s summary of argument filed 2 April 2015).
Plainly that smacks of taking into account the nature of the litigation, and in that context I accept that the consequences to the child can be a relevant factor. Further, it is closely related to the issue of the merits of the appeal, given that it presupposes that the trial judge’s decision was erroneous. However, I hasten to add that this court is not able to determine whether it is, or is not, in the best interests of the child that the injunction sought by the father be granted. In summary though, I have no difficulty with addressing the consequences to the child of the refusal of the application, namely the issue of the child’s welfare would not be able to be the subject of an appeal.
Turning then to the identified factors, and one other that I consider must be addressed, namely the prejudice to the parties depending on the result of the application.
The explanation for the failure to comply with the timeframe for the filing of the Notice of Appeal
The explanation appears in the father’s affidavit filed on 27 February 2015 and the relevant paragraphs are as follows:
5. The order which I am appealing was made 17 December 2014.
6.I was not granted funding by the Legal Services Commission for an appeal until 13 January 2015.
7. My lawyer was on leave for the latter half of January 2015.
8.Due to my employment commitments my first opportunity to attend at my lawyer’s office was 11 February 2015.
As can be seen there is a marked lack of detail provided in those paragraphs. For example, there is no indication when the application for legal aid was made, and no explanation for why another lawyer could not have attended to the Notice of Appeal whilst the father’s lawyer was on leave. Finally, and disturbingly, there is the assertion in paragraph 8. Apart from the lack of any detail, it demonstrates a lack of appreciation of the need to act with diligence in complying with the Rules. Accordingly, I am far from satisfied that there has been an adequate explanation of the failure to comply with the timeframe for the filing of a Notice of Appeal, and of the failure to expeditiously file the application seeking an extension of time.
The merits of the appeal
It is of necessity a difficult task to address the prospects of success of an appeal simply in reliance upon the transcript said to contain the reasons for judgment of the trial judge, and the amended draft Notice of Appeal.
Thus, this court must approach this question from a low threshold, which is often expressed as whether it is demonstrably apparent that the appeal is hopeless or doomed to fail. Indeed, where it appears that there is the remotest chance of success then that can be enough to allow the appeal to proceed, subject still, to where the justice of the case lies.
In the amended draft Notice of Appeal an application for leave to appeal is sought, but in my view leave to appeal is not required here. Thus, I will turn to the proposed grounds of appeal.
In summary, the proposed grounds assert first, that there were no reasons for judgment provided by the trial judge, and secondly, if reasons can be inferred then the trial judge erred “by giving no or insufficient weight to the risk presented to the health and safety of the child while in the care of the mother occasioned by her use of marijuana or other illicit substances”. Thirdly, it is claimed that the trial judge took “irrelevant or extraneous matters into account in the evaluation of the risk” to the child. Fourthly, it is said that his Honour erred in proceeding upon the acceptance of the mother’s reasons for using marijuana, and her reasons for failing to comply with the terms of the earlier order as to the use of drugs. Finally, there are other proposed grounds of appeal, but they are really extensions of the grounds summarised above.
Certainly any reasons of the trial judge must be found in the transcript given that there is no separate judgment, but I do not accept the proposition that there were no reasons provided by his Honour. However, I do consider that it is arguable that his Honour failed to give appropriate weight to the risk to the child of the mother’s use of marijuana. I also consider it arguable that his Honour took into account irrelevant considerations in exercising his discretion, and that he erred in accepting uncritically and without appropriate caution the mother’s account of her drug use, and her reasons for not complying with the terms of the earlier order.
I also note that in oral submissions the counsel for the mother indicated that he was not able to say that there was no chance of success of the appeal, and his position was that there was no reasonable chance of success. Of course, as I have indicated already, it is sufficient if there is even the smallest chance of a successful appeal.
I hasten to add that this preliminary assessment cannot be taken by the parties as any indication that the appeal will succeed. That can only be determined once all of the documents are before the Full Court, including the fulsome submissions of counsel.
The consequences of granting or refusal of the application
If the application is granted, the appeal will be allowed to proceed and the mother will need to deal with it. She will need to spend time and, presumably money, in responding appropriately to the appeal. Thus, there is an obvious prejudice to the mother given that currently there is no appeal on foot, and she has been able to proceed on that basis.
If the application is refused, then the father will not be able to pursue his appeal, and significantly, there is no appeal from a refusal to grant an application such as this. There is, of course, the ability to apply for special leave to appeal to the High Court of Australia, however, that is a difficult exercise, and may not be warranted in this case. In any event though, this is a serious consequence for the father if his application is refused.
Conclusion
As the authorities recognise, the court’s consideration of the relevant factors informs the determination of the fundamental issue, namely, where the justice of the case lies. Here, despite there being an inadequate explanation for the failure to comply with the Rules and file a Notice of Appeal within time, it is apparent that there is an arguable case on appeal, and there would be serious consequences for the father if the extension of time is not granted. Further, there is the issue of the consequences for the child of a refusal of the application. Given there is concern about the risks to the child’s welfare if the appeal is not able to be argued, and the orders of the trial judge stand, that needs to be taken into account in any consideration of the interests of justice.
In all the circumstances, I find that the interests of justice require that the application be granted.
Costs
At the conclusion of the hearing I sought submissions as to costs.
The mother sought an order for costs, but that was opposed by the father primarily on the basis of his poor financial circumstances.
In the words of s 117(2) of the Act, I consider that there are circumstances here that justify an order for costs being made. Although the application has been successful, the application was only necessary because of the failure by the father to comply with the Rules, and of course I have found that he has provided an inadequate explanation for that failure. In the circumstances, the mother was entirely justified in opposing the application and she should have her costs. Applications such as these necessarily seek an indulgence from the court in circumstances where the need for the application results from the conduct of the applicant.
I also note that impecuniosity is no bar to an order for costs being made where there are circumstances that otherwise justify an order, and that is the case here.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 27 July 2015.
Associate:
Date: 27 July 2015
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