CALCOTT & HALLINS - [2018] FamCAFC 242

FAMILY COURT OF AUSTRALIA

CALCOTT & HALLINS

[2018] FamCAFC 242

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is an adequate explanation for the failure to file a Notice of Appeal within time – Where it cannot be said that the proposed appeal has no merit, is hopeless and is doomed to fail – Where there is prejudice to each of the parties depending upon whether the application is allowed or dismissed – Application allowed – Time to file a Notice of Appeal extended.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Calcott

RESPONDENT:

Ms Hallins

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

11423

2010

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

4 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

4 December 2018

REPRESENTATION

SOLICITOR ADVOCATE FOR THE

APPLICANT:

Mr Thexton

SOLICITOR FOR THE APPLICANT:

Thexton Lawyers

THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Victoria Legal Aid

Order

The time for the applicant to file and serve a Notice of Appeal against the orders made by Judge Stewart on 24 July 2018 be extended to the close of business on Wednesday 9 January 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Calcott & Hallins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 66 of 2018
File Number: MLC 11423 of 2010

Mr Calcott

Applicant

And

Ms Hallins

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is an application in an appeal filed by Mr Calcott (“the father) on 12 September 2018 seeking an extension of time for the filing of a Notice of Appeal against two of the orders made by Judge Stewart on 24 July 2018, namely paragraphs 5 and 7 of those orders which in general terms related to the time that the child of the relationship is to spend with the father.
The application is opposed by Ms Hallins (“the mother”).
The application is supported by an affidavit also filed on 12 September 2018 and, as is required, annexed to that affidavit is a Draft Notice of Appeal, which is the Notice of Appeal that will be proceeded on in the event that an extension of time is granted.
I sought to clarify with the father’s counsel the grounds of appeal in that Draft Notice of Appeal, and it appears from that discussion that those grounds will need to be amended. Without attempting to be specific about it, I am now told that the three complaints that will be the subject of an Amended Notice of Appeal are first, the question of supervision of the time to be spent by the child with the father, secondly, the school holiday time that the child is to spend with the father, and thirdly, the question of the suspension of that time during the birthdays of the mother’s partner and the mother’s partner’s child.
I note, while I have the Draft Notice of Appeal in front of me, that for some reason leave to appeal is sought. These are final orders and, indeed, they are parenting orders, and no leave to appeal is required. The father is able to appeal as of right. Therefore in the Amended Notice of Appeal, if the appeal is allowed to proceed, that will need to be attended to as well.
Pursuant to the Family Law Rules 2004 (Cth), a Notice of Appeal has to be filed within 28 days of the date of the orders being made which are the subject of the appeal. In this case the orders were made on 24 July 2018, and the 28 day period expired on 21 August 2018. I am told that a Notice of Appeal was drafted and was ready to be filed, but that was only after the 28 day period had expired, and, as a result, there was then a need for the application that is before the court today to be made, that application being filed, to repeat, on 12 September 2018.
The principles applicable to an application such as this are well settled. In the High Court decision of Gallo v Dawson (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.
In this case the three most significant factors are, first, whether there are adequate reasons which explain the failure to file the Notice of Appeal within time, secondly, whether the appeal has merit, and thirdly, the consequences for the parties of the grant or refusal of the application.
Turning to the first issue. The reasons for the failure to file within time are set out in the affidavit of the father filed in support of the application, and they were amplified and explained by his counsel during the hearing today.
In summary, the initial difficulty for the father was that there were no discrete reasons for judgment provided by the trial judge following the two day hearing which took place on Monday 23 July 2018, and Tuesday 24 July 2018. It was left on the basis that the reasons for judgment could be found in the transcript of the hearing over those two days, and thus the parties were left to consider the transcript in an attempt to discern why the trial judge made the orders that she did. Pausing there, I do not have a copy of the transcript of the first day of hearing, but I have a copy of the transcript of the second day of hearing and that tells me that the transcript in total runs for 157 pages.
The second problem for the father was that, in order to understand the reasons, he had to purchase the transcript and I am told that the cost was some $5,000.
Inevitably there were delays in considering what should be done, and then arranging finances to obtain the transcript. Thus, it was not until 16 August 2018 that an application for the transcript was able to be made. I note that that application was accompanied by a request for the transcript to be supplied urgently, and it was, but unfortunately it was only on 21 August 2018 when the transcript was received and that, of course, was the last day of the 28 day period.
Pausing there, in my view, that provides an adequate explanation for the failure to file a Notice of Appeal within the time prescribed.
Turning then to the merits of the appeal. In that regard, it is not for this Court at this stage to determine whether the proposed appeal will be successful or not. My task is to determine whether there is even the remotest chance of the appeal being successful, because it could only be if I found that the appeal had no chance of success that it would then become pointless to extend the time for filing an appeal.
The other matter to note in that regard is that, at this stage, I do not have before me the full range of material which the Full Court would have if the appeal was allowed to proceed and be heard. What I have is transcript of the second day of the hearing, the application and the supporting affidavit, and the proposed Notice of Appeal. I do not have, for example, the written summaries of argument of the parties, which would be before the Full Court. Thus, I am left to do the best I can with the material that I have in order to determine this issue. Further, as I have indicated, there will also be a need to amend the grounds of appeal from the grounds as currently set out in the Draft Notice of Appeal which is before the court.
However, the issues that are to be raised in the Amended Notice of Appeal are quite clear, and the primary issue is the question of the adequacy of the reasons of the trial judge. In addition, I understand the claim will be made that there was insufficient evidence before the trial judge to make some of the orders that are the subject of the proposed appeal. That may be the case, but I am not in a position to determine that. As far as the question of the adequacy of the reasons though, in my view, that does provide an arguable case for the father in his proposed challenge to orders 5 and 7 made by the trial judge.
To repeat, there are no discrete reasons for judgment of the trial judge. We have in excess of 150 pages of transcript which are said to contain those reasons for judgment. In my view, that certainly creates a difficult task for not only the parties, but the Appeal Court in attempting to ascertain the reasons of the trial judge, and to understand the pathway that the trial judge took to arrive at the orders that she made.
It is concerning, with due respect to the trial judge, that she would leave the parties in that situation, namely having to pour over 150 pages of transcript in order to ascertain her reasons for judgment. I need say no more than that the provision of reasons for judgment is central to the judicial function, and the principles of transparent justice.
That of course is not to say that somewhere in those 150 pages of transcript it is possible to discern the reasons of the trial judge. That is a matter that obviously will be the subject of argument and enquiry if the appeal is allowed to proceed. Thus, in my view, to repeat, I am in a position to say that there is an arguable case on appeal.
That is not meant to indicate that, in my view, the appeal will be successful. That is a matter ultimately for the Full Court when the appeal is heard.
Turning then to the third factor which, in my view, arises in this case, namely the consequences of granting or refusing the application. The issue here is the prejudice to the parties depending upon that result. Obviously, if the appeal is allowed to proceed, then there will be prejudice to the mother in that, as of today, there is no appeal on foot, but if the appeal proceeds, she will have to deal with it and spend time, money and energy in responding to it. Equally though, there is prejudice to the father in the event that the application is refused, because he will not be able to proceed with an appeal. If I make an order refusing the application, there is no appeal to, for example, the Full Court of this Court, and the only avenue for appeal by the father would be, to seek special leave to appeal from the High Court of Australia. That is a difficult exercise at the best of times and that is why I say there clearly would be prejudice to the father if I refuse the application.
It is also put to me by the father’s counsel that the prejudice to the father outweighs the prejudice to the mother, given the timeframe involved. In other words, the application was filed not long after the appeal period expired, so there has not been a significant delay during which the orders have operated and the mother has been provided with, perhaps, a false sense of security about that.
In my view, there is something in that argument, but it is still a question of balancing the prejudice to the parties depending upon the result. More importantly though, it seems to me that given the adequate reasons for the failure to comply with the time period in which to file a Notice of Appeal, and the question of the merits of the appeal, the justice of the case clearly requires that the application be granted.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 4 December 2018.

Associate:

Date: 19 December 2018