Battison and Battison
[2013] FamCAFC 26
FAMILY COURT OF AUSTRALIA
| BATTISON & BATTISON | [2013] FamCAFC 26 |
| FAMILY LAW – APPEAL – Application for Extension of time to file a Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where applicant only recently received orders against which he would appeal – Where prejudice to applicant would warrant extending time to appeal |
| Family Law Rules 2004 rr 22.02, 22.03, 22.12 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Battison |
| RESPONDENT: | Ms Battison |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Blundell And Associates |
| FILE NUMBER: | DGC | 2591 | of | 2010 |
| APPEAL NUMBER: | EA | 19 | of | 2013 |
| DATE DELIVERED: | 22 February 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 22 February 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 19 December 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1367 |
REPRESENTATION
| FOR THE APPLICANT: | In Person via telephone link |
| SOLICITOR FOR THE RESPONDENT: | McNeilly Lawyers via telephone link |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
That the time in which the father may file an appeal against Orders 1 to 13 of the orders of Federal Magistrate Coakes made 19 December 2012 be extended to 4.00 pm on 22 March 2013.
That the legal representatives or party if not represented attend at a procedural hearing before the Regional Appeal Registrar to settle the appeal book index and for the making of other directions necessary for the hearing of the appeal at a time and date to be notified in writing by the Regional Appeal Registrar.
That the Court dispenses with service of the Notice of Appeal and any Applications in an Appeal on Mr M.
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 JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 19 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 by Mr Battison (“the applicant”) for an extension of time to file a Notice of Appeal. The proposed appeal concerns parenting orders made by Coakes FM on 19 December 2012. The parenting orders relate to three children; J who was born in 2005, W who was born in 2008 and E who was born in 2010. Ms Battison (“the respondent”) is the children’s mother. The applicant is W and E’s father. J’s father is Mr M. Mr M and the mother’s relationship ended before J was born. J has not met his father and the last the mother heard of Mr M he was a student in Egypt. Mr M did not participate in the proceedings before the Federal Magistrate in relation to whom an order dispensing with service was granted. In the event the applicant is granted leave to appeal out of time an order dispensing with service of the Notice of Appeal on Mr M is similarly appropriate.
An Independent Children’s Lawyer (“ICL”) represented the children’s interests before the Federal Magistrate. The respondent’s solicitor informed the Court that the ICL is aware of this application and does not wish to be heard in relation to it.
Stated simply, the Federal Magistrate ordered that the respondent 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 applicant on four occasions annually for two hours at a contact centre.
It is apparent that the applicant’s application that the children live with him failed, as did his application that the respondent return with the children to Melbourne where, prior to separation, the family lived. After separation, without the applicant’s agreement, the respondent and children moved to a mid north coast town in New South Wales. It is apparent that the Federal Magistrate was required to adjudicate complex issues and matters of real significance to the parties and children.
The applicable rules and principles
Chapter 22 of the Family Law Rules 2004 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 sets out the timeframe within which an appeal is to be filed.
Rule 22.02 provides for a party to make an application for leave to appeal and r 22.12 sets out some examples of procedural orders which may be made in respect of such applications.
In this case, the last day for filing an appeal was 16 January 2013.
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. The granting of leave is not automatic and involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of leave.
Discussion
As the Federal Magistrate’s orders confirm, when made the applicant was not present.
Following a six day hearing, the Federal Magistrate reserved his decision on 9 May 2012. According to the applicant, he was unaware judgment would be delivered on 19 December 2012. He noticed a missed call that day and when he called back, that number was busy. There must have been a voicemail message which enabled him to discern the call was from the Federal Magistrates Court. Thus the applicant called the National Enquiry Centre who informed him he had missed a court appearance.
It is not entirely clear from the applicant’s evidence when he received the Federal Magistrate’s orders. In his application for permission to lodge an appeal out of time which was filed on 29 January 2013, he says the orders were received four days earlier. Given that the applicant enquired of the Appeals Registry on 22 January 2013 about how he would commence an appeal, it would seem that the orders may have been received by him on or about that date. In any event, it is easy to understand how with a judgment delivered days before Christmas why it might have been some time before the reasons and orders were actually received by the applicant. Given the lack of notice to the applicant that judgment was to be given, and that he did not receive the judgment and orders within the appeal period, is a weighty consideration in favour of an extension of time.
The Federal Magistrate’s judgment reveals that throughout the hearing the applicant was unrepresented and that he conducted the hearing with the assistance of an interpreter. Although the applicant appeared today without an interpreter, he struggled to communicate clearly in English and to deal with the task at hand. In making these observations no criticism is intended of the applicant. It is simply to point out the fact that as a litigant in person he has also needed to grapple with court process undertaken in a language other than his first language. Of course, the fact that today’s hearing has been undertaken in two parts, the first with the applicant appearing on a mobile phone from the side of a highway and the second from Bunnings has not aided clear communication.
In any event, the evidence provided by the applicant is to the effect that he was able to consult a solicitor in late January 2013. That solicitor has been in contact with the Court but has not yet filed a Notice of Address for Service and it is unclear whether he will be retained. Of note, the Appeals Registry informed the applicant and the solicitor about difficulties with the applicant’s material filed in support of this application, including that the proposed Notice of Appeal is devoid of grounds. The complication that this causes is that it makes it impossible for the Court and the respondent to form any view about the possible merits of an appeal.
That said, the grounds raised or their absence is not determinative of the application. It is but one of the factors referred to in Gallo v Dawson that the Court would need to take into account.
The gravamen of the submissions and evidence adduced by the applicant are to the effect that he has only recently received the orders against which he would appeal. The prejudice to him is that if an extension of time is not given he would be denied the opportunity to appeal matters of real significance to him and the children. He points to particular difficulties he has as a litigant in person and although no reference was made to it the time of year when the reasons and orders were made and in which the applicant has needed to try and secure advice and representation, has compounded his difficulty.
The effect of this is that the applicant has provided an adequate explanation for his delay and thus reason why the Court would exercise its discretion in favour of an extension of time.
The Court must, of course, consider prejudice to the respondent. She has secured final orders and the appeal period has expired. No doubt she would wish to be able to enjoy the fruits of the litigation and be free from the strains and stresses involved in further litigation. It is not clear to me of the impact upon her financially, but even if she is eligible for a grant of legal aid, one might anticipate there would still be some financial impost on her.
Whilst these are important matters they are not as significant, in my view, as the effect on the applicant of failing to extend time within which he could prosecute his appeal.
Accordingly, an order will be made which will enable the applicant to lodge a Notice of Appeal and, as indicated, an order dispensing with service of the application and the Notice of Appeal on Mr M.
I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 22 February 2013.
Associate: S Mills
Date: 8 March 2013
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