Cabanas and Holmer
[2013] FamCAFC 163
•10 October 2013
FAMILY COURT OF AUSTRALIA
| CABANAS & HOLMER | [2013] FamCAFC 163 |
| FAMILY LAW – APPLICATION IN A CASE – Application to extend time to file a Notice of Appeal – Consideration of Chapter 22 of the Family Court Rules 2004 – Where the Notice of Appeal was only one day out of time – Where the mother would be prejudiced if she was denied the opportunity to appeal matters of real significance – HELD – Application granted. |
| Family Law Rules 2004: rr 22.02, 22.03. 22.12 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Cabanas |
| RESPONDENT: | Mr Holmer |
| FILE NUMBER: | DUC | 252 | of | 2013 |
| APPEAL NUMBER: | EA | 132 | of | 2013 |
| DATE DELIVERED:: | 10 October 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 8 October 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 19 August 2013 |
| LOWER COURT MNC: | [2013] FCCA 1503 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | McNamara & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Kenny |
| SOLICITOR FOR THE RESPONDENT: | Burke & Baker |
Orders
That the time in which the mother may file a Notice of Appeal against orders made by Judge Dunkley on 19 August 2013 be extended to 4.00 pm on 18 October 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 date and time to be notified in writing by the Regional Appeal Registrar.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cabanas & Holmer 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 132 of 2013
File Number: DUC 252 of 2013
| Ms Cabanas |
Appellant
And
| Mr Holmer |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Cabanas (“the mother”) for an extension of time to file a Notice of Appeal. The proposed appeal concerns parenting orders made in the Federal Circuit Court by Judge Dunkley on 19 August 2013. The orders relate to the parties’ three children; M, X and T. Although it would appear likely that it was his Honour’s intention to make interim and not final orders, the orders as entered are final and, in summary, require that the mother return the children to live in Town F in New South Wales by 6 October 2013, provide that the parties have equal shared parental responsibility for the children, the children live with the mother and spend regular time with the father.
Mr Holmer (“the father”) is the children’s father and respondent in this application. It is his position that the mother’s application should be dismissed.
Background Facts
So as to give this application context, it is necessary to record a few seemingly uncontroversial facts.
The parties commenced cohabitation in 2005 in Queensland.
Shortly after M’s birth in late 2006, they moved to a town in southern New South Wales.
In 2011, the parties moved to Town F.
They separated in February 2012, following which the children lived with the mother and spent time with the father.
The mother told the father in May 2013 that she wanted to move with the children to the south coast. Notwithstanding the father’s opposition, in July 2013, the mother and children moved to the south coast area.
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 September 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
In support of the mother’s application, her solicitor swore an affidavit filed 19 September 2013. Her evidence is unchallenged and accepted.
Proceedings were commenced by the father in the Local Court at Town F in July 2013, in relation to which the mother consulted the solicitor. The solicitor conducts her practice in the south coast area.
It would appear that on the first court date the father’s application and the mother’s response that the children remain with her in the south coast area were transferred to the Federal Circuit Court at Dubbo. The Federal Circuit Court listed the proceedings for 18 November 2013.
On 2 August 2013, the Federal Circuit Court informed the parties’ solicitors by letter that the 18 November 2013 date had been vacated and that the proceedings were now “… listed for callover on Monday, 19 August 2013 at 9.30 AM … before Judge Dunkley”.
So that it is clear, there was nothing in the correspondence from the Federal Circuit Court which indicated the period into which the cases called over would be listed for hearing.
The mother’s solicitor engaged an agent to appear at the callover as did the father’s solicitor. At the callover his Honour listed the proceedings for interim hearing at 2.30 pm that day. Because the mother’s solicitor was in another court at Wollongong, it was not until 1.45 pm that her agent was able to speak to her. Self-evidently, time was too short for the mother or her solicitor to reach Dubbo by 2.30 pm. Thus, the hearing was undertaken by the mother’s agent (and it would also appear the father’s agent) and without either party in attendance. His Honour made the orders referred to earlier.
On 11 September 2013, the mother instructed her solicitor to file a Notice of Appeal and to apply to his Honour for a stay.
The mother’s solicitor understood that the appeal period would expire in one month, namely, 19 September 2013. The period prescribed by the rules is 28 days, and thus the mother’s appeal needed to be filed no later than 16 September 2013.
In any event, the mother’s Notice of Appeal was posted to the Eastern Appeal Registry on 16 September 2013. It was received on 17 September 2013. Because it was one day out of time, the appeal was not filed.
On 18 September 2013, the mother’s solicitor wrote to the father’s solicitor and sought his consent to her being given leave to appeal out of time. The father’s consent has not been forthcoming.
Thus, on 19 September 2013, the mother filed her application for an extension of time which is supported by an affidavit sworn by her solicitor. The reasons for delay are adequately explained and provide strong reasons in favour of an extension of time.
However, counsel for the father argued that an extension of time should not be given. He did so on two bases. Firstly, that the mother has not returned the children to Town F as required by his Honour’s orders and thus, her being in contravention of orders, the Court should not grant her an indulgence and extend time. It is appropriate to record at this juncture that there is no evidence about whether or not the mother has returned the children. True it is that there were exchanges during submissions on this topic, but it is a matter about which neither party gave evidence.
However, if it is the case that the mother has failed to return the children to Town F it would be necessary to take into account that on 26 September 2013 she filed an application in the Federal Circuit Court to stay his Honour’s orders. Service copies of those documents have not been returned to the mother’s solicitor and her enquiries of the Court and his Honour’s chambers about when the stay application might be listed have been unproductive. Thus, during the hearing the Court’s database was checked and it was ascertained that the mother’s application is listed (before whom and whether or not it is listed for hearing could not be discerned) on 17 October 2013. That she has presented, but through no fault of hers been unable to pursue, an application that may result in her achieving a stay of his Honour’s orders, significantly reduces the force of this argument advanced on the father’s behalf.
Counsel for the father argued that the proposed appeal does not raise matters of substance and, if leave is given, would be unlikely to attract appellate intervention. Submissions were made in relation to those grounds which challenge weight upon which, based on well known authorities, it is submitted it is difficult to succeed. While that is unarguably correct, it is also asserted by the mother that his Honour failed to take into account relevant considerations and denied her procedural fairness. On the basis of the evidence and analysis provided by the mother’s solicitor, it is not accepted that the mother’s proposed appeal so lacks merit that leave to proceed should be denied.
It is accepted that if an extension of time is refused, the mother would be prejudiced in that she would be denied the opportunity to appeal matters of real significance to her and potentially the children. On the other hand, the father has secured orders which will enable him to spend time with the children on terms and conditions more acceptable to him than those proposed by the mother. No doubt he wishes to be able to enjoy the fruits of the litigation and be free from the strains and stresses involved in an appeal. Whilst this is an important consideration, it is not as significant as the effect on the mother of failing to extend time within which she could prosecute her appeal.
Accordingly, an order will be made which will enable the mother to file a Notice of Appeal within a reasonable period and the parties directed to attend a procedural hearing before the Regional Appeals Registrar.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 10 October 2013.
Associate:
Date: 10 October 2013
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