Battison and Battison
[2014] FamCAFC 247
•21 November 2014
FAMILY COURT OF AUSTRALIA
| BATTISON & BATTISON | [2014] FamCAFC 247 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – Where Notice of Discontinuance was filed by the appellant’s solicitor – Where the father has lodged a complaint that the solicitor acted without instruction when he did so – Where the Family Law Rules do not provide for a discontinued appeal to be reinstated – Where the unusual circumstances of this case warrant the application for reinstatement to be treated as an application to extend time to file an appeal – Where the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties – Where it would cause a great injustice to not allow a party to pursue an appeal that has been wrongly discontinued – Application granted. |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Battison |
| RESPONDENT: | Ms Battison |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Blundell & Associates |
| FILE NUMBER: | DGC | 2591 | of | 2010 |
| APPEAL NUMBER: | EA | 19 | of | 2013 |
| DATE DELIVERED: | 21 November 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 21 November 2014 |
| LOWER COURT JURISDICTION: | Federal Magistrate’s Court |
| LOWER COURT JUDGMENT DATE: | 19 December 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1367 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Battison in person with the assistance of an interpreter |
| SOLICITOR FOR THE RESPONDENT: | Ms McNeilly |
Orders
The Application in an Appeal filed by the father on 17 October 2014 to reinstate Appeal EA 19/2013 be treated as an application for an extension of time to file an appeal against the orders made by FM Coakes (as he then was) on 19 December 2012.
That the father be granted an extension of time to appeal against the orders referred to in Order 1.
That the Amended Notice of Appeal filed by the father on 20 March 2013 be treated as the Notice of Appeal filed pursuant to the above order and as filed on this day.
That the draft appeal index and appeal books filed in Appeal EA 19/2013 by the father be treated as the draft appeal index and the appeal books for the purpose of the appeal referred to in Order 2.
That the appeal referred to in Order 2 be expedited.
That the appellant father file and serve his Summary of Argument and List of Authorities with the Eastern Appeals Registrar on or before 19 December 2014.
That the respondent mother file and serve her Summary of Argument and List of Authorities with the Eastern Appeals Registrar on or before 31 January 2015.
That the Independent Children’s Lawyer file and serve their Summary of Argument and List of Authorities with the Eastern Appeals Registrar on or before 31 January 2015.
That the costs of this application will be the costs of the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Battison & Battison has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA19 of 2013
File Number: DGC 2591 of 2010
| Mr Battison |
Applicant
And
| Ms Battison |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were delivered orally.
This is an application filed by Mr Battison (“the father”) on 17 October 2014 in which he seeks an order that his Amended Notice of Appeal filed on 20 March 2013 be reinstated. The appeal, which is against parenting orders made by Federal Magistrate Coakes (as he then was) on 19 December 2012, ceased when a Notice of Discontinuance was filed on 18 August 2014. The significance of that day is the father’s appeal was listed for hearing on 19 August 2014.
A appeal that has been discontinued cannot be reinstated. However, as I explained to the father this morning, in the unusual circumstances of this case, his application for reinstatement of the Amended Notice of Appeal can be treated as an application for an extension of time within which to commence a new appeal in relation to the parenting orders made on 19 December 2012.
The orders relate to three children; J who was born in 2005, W who was born in 2008 and E who was born in 2010. The children’s mother and respondent to this application is Ms Battison (“the mother”). The children were represented by an Independent Children’s Lawyer (“ICL”), who also previously appeared in the discontinued appeal. For reasons which cannot be established today, the ICL has not participated in today’s hearing.
In any event, the Federal Magistrate ordered that the mother have sole parental responsibility for the children, that they live with her and, subject to completion of an accredited parenting course, the children spend time with the father on four occasions annually for two hours at a contact centre.
The mother and children live in a north coast town in New South Wales. The father lives in Melbourne. It is apparent that his application to have them return to live in Melbourne failed.
The Notice of Discontinuance which ended the appeal was filed by the father’s solicitor. It is not signed by the father. The circumstances surrounding the filing of that notice are of great importance.
By the father’s application for reinstatement filed on 17 October 2014 and his affidavit filed in support, the father gives evidence that his solicitor acted without his instructions when he filed the Notice of Discontinuance. Attached to the father’s affidavit is a complaint he made to the Legal Services Commission regarding the solicitor’s conduct. By letter dated
5 September 2014, the Legal Services Commission informed the father that his complaint would be investigated. The complaint identified in that letter and relevant to today’s hearing is that according to the father the solicitor lodged the Notice of Discontinuance without instructions to do so.
By correspondence dated 16 September 2014, two further complaints are made by the father to the Legal Services Commission in relation to the conduct of the solicitor, specifically that the solicitor was grossly negligent by failing to obtain parenting orders in his favour and that he failed to provide the father with his client file in circumstances where there was no basis to withhold the file.
Of the complaints made on 16 September 2014, the first has no relevance to this application. The latter is potentially relevant. However, it is the father’s evidence that the Notice of Discontinuance was lodged without instructions that is the pivotal matter of concern for today’s hearing.
It needs to be understood that the father’s appeal thus far has had a somewhat sluggish trajectory.
Orders and judgment were delivered and published by Federal Magistrate Coakes on 19 December 2012. Those orders accord with the recommendations of the single expert and the orders which the ICL submitted would be in the best interests of the children. The father was not present when the orders were pronounced and judgment was delivered.
The last day for filing an appeal against those orders was 16 January 2013. The father did not file an appeal within time. Thus, on 29 January 2013, he filed an application seeking an extension of time to file a Notice of Appeal. That application was heard by me on 22 February 2013.
The father, who was then unrepresented and appeared by telephone link, gave evidence he had not been notified of the intended date for delivery of judgment and that he only received a copy of the judgment four days before filing his application for an extension of time.
I made orders which granted the father’s application for an extension of time to appeal and ordered that he do so by 22 March 2013. The father filed an Amended Notice of Appeal on 20 March 2013. He did not, however, file a draft appeal index in time and, thus his appeal having been deemed to be abandoned, on 8 May 2013 he filed an application in an appeal to reinstate his appeal.
That application came before me on 30 May 2013 and, in circumstances where the father was unable to prove service on the mother and the ICL, there being no appearance by either of them, the matter was adjourned until 26 June 2013.
On that day, by consent, the father’s appeal was reinstated and I then made a series of orders concerning the filing of appeal books, summaries of arguments and other orders required to bring the father’s appeal on for hearing.
The appeal books were filed but the summary of argument was not. Further directions were made by the Appeals Registrar on 10 March 2014 concerning the summary of argument with which the father again did not comply.
Thus, applications were filed by the mother and the ICL seeking that the father’s appeal be dismissed. Those applications were listed for hearing at the same time as the father’s appeal, that is, 19 August 2014. As I mentioned earlier, a Notice of Discontinuance was filed by the father’s solicitor on 18 August 2014.
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. I have summarised these in previous judgments delivered in this appeal and it is not necessary to do so again. Suffice to say, the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties.
It seems to me that where a Notice of Discontinuance of an appeal is filed without a party’s instruction to do so, it would cause a great injustice to that party and would be an affront to justice generally to not allow a party who has been apparently treated in this way the opportunity to pursue the appeal wrongly discontinued.
It needs to be recorded that I have only the father’s version about what took place between he and his solicitor concerning the filing of that Notice of Discontinuance. It may be that had the solicitor participated in these proceedings, a different gloss might have been placed on what preceded the filing of the Notice of Discontinuance.
It follows that what actually took place between the father and his solicitor cannot be determined by me in the absence of the solicitor. However, I have the father’s sworn evidence and nothing to contradict it. It is thus appropriate to proceed on the basis that what the father has said to me today is reliable.
Accordingly, and notwithstanding the well-structured submissions presented by the solicitor for the mother about the prejudice to her client of an appeal being allowed to go forward and the cost to the public purse, in particular, legal aid, of that step being permitted, I am persuaded that the father should be given an extension of time within which to file a new appeal and that the discontinued appeal be deemed that new appeal.
He has, as I have already mentioned, filed appeal books, and the only step that remains outstanding is presentation of a summary of argument. Directions will be made for that. In the circumstances, the appropriate course is to deem the steps taken in the discontinued appeal to be steps taken in the appeal which I will now deem to be filed.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 November 2014.
Associate:
Date: 20 January 2015
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