Caffell and Falcon
[2014] FamCAFC 34
•26 February 2014
FAMILY COURT OF AUSTRALIA
| CAFFELL & FALCON | [2014] FamCAFC 34 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks an extension of time to file an appeal – where the application is opposed – where there is a satisfactory explanation provided by the applicant for not filing the appeal within time – where the appeal has no merit and is doomed to fail – application dismissed. |
| ||||
| APPLICANT: | Mr Caffell | |||
| RESPONDENT: | Ms Falcon |
| FILE NUMBER: | MLC | 82 | of | 2007 |
| APPEAL NUMBER: | SOA | 76 | of | 2013 |
| DATE DELIVERED: | 26 February 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 26 February 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 25 October 2013 |
| LOWER COURT MNC: | [2013] FCCA 1652 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In person |
Orders
The application in an appeal filed on 29 November 2013 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Caffell & Falcon 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 MELBOURNE |
Appeal Number: SOA 76 of 2013
File Number: MLC 82 of 2007
| Mr Caffell |
Applicant
And
| Ms Falcon |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The application before the court is the application in an appeal filed by
Mr Caffell on 29 November 2013. There were a number of orders sought in that application, but it is only paragraph 1 of that application which is able to be determined by this court. Indeed I note that the application was only accepted for filing in relation to paragraph 1. In that paragraph Mr Caffell seeks an extension of time to file a Notice of Appeal against the orders made by Judge Hartnett on 25 October 2013.
The application is supported by an affidavit filed by Mr Caffell on
29 November 2013. It is a brief affidavit and I will come to it later in these reasons. In addition Mr Caffell, again on 29 November 2013, filed, as he is required to, a draft Notice of Appeal which is the Notice of Appeal which I take to be the Notice he would rely upon in the event that he was permitted to pursue an appeal.
The application is opposed by the respondent, Ms Falcon.
Relevant statute law and rules of court
Section 94AAA of the Act deals with, inter alia, appeals from the Federal Circuit Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; …
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. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Applicable Principles
The law in relation to applications for extensions of 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 McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
Thus, the fundamental issue is whether an extension of time is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. For example, whether there are adequate reasons which explain the failure to file the Notice of Appeal within the requisite 28 day period, whether there is a substantial issue to be raised on appeal, or to put it another way, whether the proposed appeal has merit, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the nature of the litigation, the history of the proceedings, the conduct of the parties, and the consequences for the parties of the grant or refusal of the application.
In this case the three factors that the parties have concentrated on are whether there are adequate reasons to explain the failure to file the Notice within the requisite time period, the merits of the proposed appeal, and the prejudice to either party depending upon the result of the application.
As can be seen I am able to take into account factors such as the nature of the litigation, the history of the proceedings, and the conduct of the parties. There has been no evidence put before me by the applicant directed to those factors, and I observe that the respondent has not filed any affidavit at all. However, I am able to have reference to, where necessary, the reasons for judgment of the judge if there is any matter arising therefrom which bears upon those factors. I will return to that later in these reasons.
Discussion
Adequate Explanation
The affidavit that has been filed by Mr Caffell is brief but it tells me, and I have explored these matters with Mr Caffell during the hearing today, that
Mr Caffell went overseas, leaving Australia on 19 October 2013 and returning on 19 November 2013. The hearing in this case took place before Mr Caffell left for overseas, and was conducted on 8, 9, 10 and 11 October 2013.
Her Honour delivered her judgment and made orders on 25 October 2013, when Mr Caffell was overseas. However, it is apparent from the documents that are before me, and particularly email correspondence passing between
Mr Caffell and her Honour’s associate, that Mr Caffell, as he concedes, was sent the reasons for judgment and the orders by her Honour’s associate via email and he received those whilst he was overseas. It is also apparent there was a problem in sending that email because of the size of the documents, but Mr Caffell indicates that certainly by 4 November 2013 he had received the reasons for judgment and the orders.
What Mr Caffell says though is that until he returned to Australia, namely, on
19 November 2013, he was not able to do anything formally in relation to preparing and filing a Notice of Appeal. The last day to file a Notice of Appeal within the prescribed timeframe was Friday 22 November 2013, namely, a matter of only three days after Mr Caffell returned from overseas.
Mr Caffell tells me in his affidavit that he actually attended at court on
22 November 2013 to lodge a Notice of Appeal that he prepared, but he had omitted to prepare an application for a stay of the orders which was an application he wanted to pursue, and so he did not file his documents on that day and he came back on the next Monday, namely, 25 November 2013, and sought to file all the documents including the Notice of Appeal. As is apparent, by that time he was out of time and he was not able to file his Notice of Appeal.
Upon learning on 25 November 2013 that he was out of time and he would need to file an application seeking an extension of time, Mr Caffell did that by filing the documents that are before me today on 29 November 2013.
Ms Falcon has submitted that Mr Caffell has not presented any evidence to this court that he was overseas as he claims, and thereby prevented from filing his Notice of Appeal within time. She also indicated that she does not accept that he only received the final part of the reasons for judgment on or about
4 November 2013, she relying on the timeframe that it took to send that document to her.
Although Ms Falcon is correct that there is no evidence before me confirming that Mr Caffell was overseas, I am prepared to accept that that was the case, and on that basis I find that there is an adequate explanation as to the failure to file a Notice of Appeal within the prescribed time. I also observe that there was not a significant delay before Mr Caffell then filed the appropriate application seeking an extension of time.
The merits of the appeal
In his draft Notice of Appeal, Mr Caffell seeks to appeal against all orders made by the trial judge. He also seeks leave to appeal, but he does not need to do that; he has a right of appeal without leave in this matter, subject of course as to whether this application before the court today is granted or not. Thus, for the purposes of his application today, I only need to concern myself with the grounds of appeal that he set out in his draft Notice of Appeal.
On the face of it it appears that there are four grounds of appeal, but I have clarified with Mr Caffell that in fact there are only three. They are expressed in a way which is not necessarily appropriate or helpful to an appeal court. They are in the form of a narrative, and the problem that immediately emerges is that it is not readily apparent from these grounds of appeal what the errors are that Mr Caffell alleges were committed by the judge which would allow for a successful appeal. What I have attempted to do today is clarify that with
Mr Caffell.
With Ground 1 it seems that what Mr Caffell is complaining of is that the judge should not have accepted the report of a Mr S, or relied on his evidence in reaching her decision because some of, and indeed a significant portion of the material that he presented, came from the respondent. Mr Caffell says that
Mr S has adapted for the purposes of his report the work of previous report writers, or parts of their reports, which were provided to him by the respondent.
In the narrative that is contained in the draft Notice of Appeal Mr Caffell suggests that Ms Falcon has breached s 121 of the Family Law Act 1975 (Cth) (“the Act”) by providing these documents to Mr S, and also that she has breached the “Copyright Act 1968”. These are specious claims, as
Ms Falcon has rightly pointed out. In any event the question is whether the judge has committed an appealable error, not whether Ms Falcon has breached s 121 of the Act, or the “Copyright Act 1968”.
What is next described as Grounds 2 and 3 in the draft Notice of Appeal, but which Mr Caffell concedes is really one ground of appeal, relates to evidence provided by a hospital as to an incident that occurred at the hospital involving the child and Mr Caffell. Doing the best I can in understanding what this complaint is about, it seems that Mr Caffell presented, via an affidavit, information and/or documents that he obtained under Freedom of Information legislation from the hospital concerned. An issue arose though during the hearing as to the completeness or otherwise of those documents, and the Independent Children’s Lawyer (the “ICL”) then subpoenaed the hospital’s records, and they were tendered to the judge. As is common practice, the hospital had blacked out certain information in its records in answering the subpoena.
Mr Caffell complains that the judge relied on those redacted documents obtained by subpoena, rather than the documents that he had obtained under Freedom of Information legislation, and in that way the judge has made an error. Mr Caffell also complains that the judge was in error in finding that he had been deceitful in relation to how he presented this evidence from the hospital, and he makes a third complaint that his partner Ms P, who had filed an affidavit, was not permitted by the trial judge to give evidence, which evidence would have included evidence in relation to the incident that occurred at the hospital.
Turning to the final ground of appeal, Mr Caffell appears to be complaining about the refusal by the judge to allow evidence to be called from the respondent’s husband Mr Falcon, and in so refusing I take it that
Mr Caffell says that her Honour has erred in an appellate sense.
I turn now to deal with those three grounds of appeal.
Mr S was a witness upon whose evidence the judge relied and referred to extensively in her reasons for judgment. Mr S, who is a psychologist, apparently undertook therapeutic counselling with the parties and the child the subject of the proceedings, and that was undertaken pursuant to an order of the court as recommended by a family consultant, Mr U. Mr S conducted a number of sessions with the father, and some of those with his partner Ms P. There were also sessions with the mother and her husband, and of course with the child. As a result of those sessions Mr S provided two reports that are identified in the reasons for the judgment of the judge namely, a report of
6 December 2012 and a report of 21 January 2013.
Her Honour spent a good deal of time in her reasons referring to and repeating the evidence of Mr S, not only from his reports, but from his oral evidence. The particular issue that Mr Caffell complains of is addressed briefly in the reasons for judgment of the trial judge at [16] where her Honour says this:
Mr [S’s] evidence was that the reports read by him had been provided to him by the Independent Children’s Lawyer. Some of those same reports may also have been provided by the mother. …
Pausing there, Mr Caffell says the reports certainly were provided by the mother and he suggests that Mr S has lied about that in saying that he only obtained the documents from the ICL. I do not propose to delve into that issue. The fact is that her Honour recognised quite clearly that reports read by
Mr S not only came from the ICL but also came from the mother.
Mr Caffell’s complaint is that the trial judge erred in relying upon Mr S’s evidence and his reports because he had these previous reports, or parts thereof, provided by the mother. The difficulty with that proposition is that it is quite apparent from the reasons for judgment delivered by the trial judge, where she goes into in some detail the evidence of Mr S, that his evidence was not solely based on those reports. Indeed, his evidence was primarily based on his own assessment throughout the counselling sessions that he undertook with the parties and the child. That is what her Honour primarily took from Mr S’s evidence. Even if Mr Caffell is correct in suggesting that the mother should not have given Mr S these earlier reports, in my view Mr Caffell has not demonstrated that that has resulted in appealable error being committed by the trial judge in relying upon the evidence and reports of Mr S.
Mr Caffell has relied on an order made by the judge on 27 July 2012 wherein her Honour, apart from a number of other orders, ordered that Mr S provide a report detailing his recommendations, and that report be provided by
25 January 2013. Mr Caffell has referred to paragraph 7 of that order which provides as follows:
That the Independent Children’s Lawyer shall as soon as practicable provide Mr [S] with a copy of
(a)a copy of these Orders;
(b)a copy of the 2012 Family Report; and
(c)a copy of the 2012 [Ms M] Report.
Mr Caffell has suggested that the respondent breached that order by providing other material to Mr S. With respect to Mr Caffell, he has misconceived that order. It provides for what the ICL is to provide to Mr S, it says nothing about the ability of Ms Falcon to provide other reports or other information to
Mr S. That does not take the issue any further in my view, nor provide a firmer basis for this ground of appeal.
I add that it was not only Mr S’s evidence that was relied upon by the trial judge in reaching her decision. As she set out in her reasons for judgment her Honour referred to and recorded the evidence of Mr U, who provided a report in the capacity of a family consultant, and also the evidence of Ms M who [worked at a] Contact Centre.
Thus, to repeat, in my view Ground 1 has no merit.
Turning now to what are described as Grounds 2 and 3, but are now put as one ground of appeal.
As identified earlier there are three issues that Mr Caffell complains about here. The first is in relation to the use by her Honour of the hospital evidence. I will not repeat all that I have said about that, but the fact of the matter is that the evidence that Mr Caffell provided, which he had obtained via the Freedom of Information Act 1982 (Cth), was not complete evidence from the hospital, and in the circumstances it was entirely appropriate for the judge to look to receive the actual files from the hospital, by way of them being subpoenaed by the ICL.
In my view there is no error by the trial judge in relying on the subpoenaed evidence as opposed to the incomplete evidence provided by Mr Caffell.
Mr Caffell next complains that her Honour described him as being deceitful. That occurs at [57] of the reasons for judgment where her Honour says this:
The father was not a credible witness. Some examples are as follows:-
a)he mislead the Court with respect to the production of the [Hospital] file. He contradicted his own evidence and blatantly lied in respect of the entire episode at the hospital;
Her Honour went on and gave two other examples which are not relevant to the issue at hand.
As I understand it the basis of that finding was what her Honour said at [25] of her reasons for judgment, namely:
On 24 November 2011, [X] was admitted to the [Hospital] due to a lung infection. The mother remained bedside at the hospital during the days that the child remained there, and the father spent considerable time there. The father’s inappropriate behaviour on the ward which included speaking harshly or sharply to a nurse, led to a code grey being called requiring the attendance of security staff. As a result, [X] was further distressed about her father’s presence and behaviour, albeit the reported incident was not in her presence and she heard about it subsequently. Mr [S] noted that a code grey was a fairly significant alarm, and includes actual violence as well as verbal threat. The [Hospital] file was subpoenaed by the Independent Children’s Lawyer, and tendered in evidence before the Court. That file had earlier, and unbeknownst to the other parties and the Court, been accessed by the father pursuant to the Freedom of Information Act 1982 (Cth). The father first obtained the file unredacted, and then made a request of the [Hospital] that they omit that part of the file which related to the code grey incident and his behaviour, and provide a further copy of the file to him with that information redacted. That request was contained in a second letter, undisclosed by him. He specifically requested that the [Hospital] “omit inappropriate nurse comments not pertaining to the health of the child”. He required the [Hospital] to telephone him for details. The father did not give his consent, it being about him, to that information’s disclosure. The father produced in Court and tendered in evidence the redacted version of the [Hospital] file, together with his first letter requesting production of the file. That first letter requested information concerning the security incident. He deliberately set about misleading the Court as to the contents of that file. He did not inform the Court of the sequence through which he went to obtain the information and, in particular, his request that the necessary and pivotal information be removed. He claimed, bizarrely, that the mother managed to include the security incident in the notes (I find she did not) and that it was not proper procedure.
Her Honour in effect found that in the evidence that Mr Caffell gave to the court about the issue of the documents that he had obtained from the hospital, and what is said to be his request to omit comments from those documents, that he lied. It has not been demonstrated to me that her Honour has erred in that finding.
Although I have referred specifically to [25] I also note what her Honour says at [26], [27], [28] and [29] of her reasons for judgment which also relate to this issue, and particularly the incident that occurred at the hospital which became the subject of the documents provided by the hospital.
The third aspect of this ground is the complaint that Ms P was not permitted to give evidence. I do not have the transcript of the hearing before me and thus I cannot determine one aspect of the background of this issue. Nevertheless,
Ms Falcon tells me that at the commencement of the case Mr Caffell had indicated in his documents that he was seeking to rely on an affidavit of Ms P. She says when the judge asked him about this he indicated that he was no longer relying on that affidavit, and on that basis Ms P was permitted to remain in court, as conceded by Mr Caffell, throughout the evidence given. Subsequently towards the end of the case, Mr Caffell sought to call Ms P but the judge refused that request given the background that I have just adverted to.
Mr Caffell has said that he did not at the start of the case say that he was not relying on Ms P’s evidence, but as I have said, he has conceded that
Ms P remained in the courtroom, and was present when the evidence was given. I obviously cannot determine without a transcript what was said to her Honour at the start of the case, but it is perfectly understandable why her Honour would refuse to allow Ms P to give evidence after she had been sitting in and hearing the evidence given in the case.
Again, in my view, there is no merit in that aspect of this ground of appeal.
The final ground, Ground 4, relates to the alleged error by the judge in refusing to allow the wife’s husband to be called to give evidence.
It is the position as I understand it that Mr Falcon had not provided an affidavit for the purposes of the final hearing. When asked by the judge at the start of the case or thereabouts whether she was intending to call Mr Falcon,
Ms Falcon indicated she was not, and apparently when the application was made by Mr Caffell to call Mr Falcon it was explained that he was overseas and was unavailable to give evidence.
It has not been explained to me what the relevance of any evidence that might be adduced from Mr Falcon was. If he was overseas then it is again perfectly understandable why the trial judge refused the application. Mr Caffell also has not, for example, suggested to me that at the start of the case he indicated to the trial judge that he wanted to subpoena Mr Falcon, and indeed as I understand it, no subpoena for him to give evidence was prepared or issued. Again, in the absence of either of those events, namely, Mr Caffell saying at the start of the case that he wanted to call Mr Falcon, or a subpoena being issued to
Mr Falcon for him to give evidence, it is perfectly understandable why her Honour would not allow Mr Falcon to be called.
Again, I find that there is no merit in this ground of appeal.
In summary, it has not been demonstrated to this court that there is an arguable case on appeal, and that is the question for this court. In this regard the exercise is somewhat similar to the exercise in determining an application for summary judgment, or to put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then subject to where the justice of the case lies as a result of the consideration of all of the other relevant factors, the appeal should be allowed to proceed.
I find that this appeal, if allowed to proceed, is doomed to fail.
I also observe that I have closely read her Honour’s reasons for judgment given that Mr Caffell is appearing without legal representation and has obviously prepared his draft Notice of Appeal on that basis. Despite the fact that in considering this matter I am limited to the complaints that Mr Caffell himself raises in his draft Notice of Appeal, nothing emerges from my perusal of her Honour’s reasons which would call into question the correctness of the decision of her Honour, and specifically, no other appealable error is apparent.
I indicated earlier that factors that are sometimes relevant are the history of the proceedings, the nature of the litigation, and the conduct of the parties. As I have said, and I repeat, I have no specific evidence from either party in relation to those factors, but I note in that context the comments made by her Honour at the commencement of her reasons for judgment as to the history of the litigation between the parties in this matter, and how as a her Honour said, in respect of parenting order proceedings it is time for that litigation to cease. The litigation commenced when the child was aged two years and it is still continuing; the child is now aged 10 years. In that time there have been a multitude of applications and a multitude of hearings. There have also been, as her Honour identifies, a series of professionals involved ranging from
Dr N, psychologist, to Mr S, psychologist, whom I have mentioned in these reasons. The history of the proceedings and the nature of the litigation would all tend to support a position where this litigation was brought to an end.
I hasten to add though that what I have said there is by way of comment only, and my reasons so far relate to the specific issues of an explanation for the delay to file a Notice of Appeal within the prescribed timeframe, and the merits of the appeal.
To recap at this point, I have found that there is an adequate explanation for the failure to comply with the prescribed time limits, but I am not satisfied that there is an arguable case on appeal, and indeed in my view, the proposed appeal is doomed to fail.
The consequences of granting or refusing the application
As the matter presently stands, all of the orders made by the judge are in place, and there is no appeal on foot. The respondent has been able to proceed on the basis that she has the benefit of all of the orders made, and would not need to do anything further in relation to that. However, if the application is granted then the appeal will be able to proceed and the respondent will have to deal with it. Thus there is clear prejudice to the respondent in that event, and here I again refer to the comments that I have just made about the history of the proceedings, and what her Honour said specifically about that in the early part of her reasons for judgment.
On the other hand, if this court refuses the application there would be undoubted prejudice to the applicant. There is no appeal from a refusal of this application, save and except by way of seeking special leave to appeal to the High Court of Australia. That is understandably a difficult exercise and sometimes is not warranted in the circumstances of the case, and thus for that to be the only avenue for the applicant to pursue is a serious prejudice to him.
Conclusion
As the authorities recognise, the court’s consideration of the relevant factors informs the court in determining the fundamental issue, namely, where the justice of the case lies.
Here I have found that the applicant, Mr Caffell, has provided an adequate explanation for his failure to file a Notice of Appeal within the prescribed time. I have found though that the appeal has no merit.
One other factor in the applicant’s favour is the prejudice to him if the application is refused, but that does not necessarily outweigh the prejudice to the respondent if the application is granted.
The dominant factor here is the lack of any merit in the appeal and I find this is a clear case where the interests of justice require that the application seeking an extension of time to file a Notice of Appeal against the orders made on
25 October 2013 be refused, and that is the order that I propose.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 26 February 2014.
Associate:
Date: 13 March 2014
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