Cannon & Cannon
[2023] FedCFamC1A 39
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cannon & Cannon [2023] FedCFamC1A 39
Appeal from: Order dated 6 September 2022 Appeal number(s): NAA 256 of 2022 File number(s): BRC 17729 of 2020 Judgment of: ALDRIDGE J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Review of appeal judicial registrar’s decision refusing to grant an extension of time to appeal against parenting orders – Lack of any prospects of success on the appeal – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 65D, 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Melville and Melville (2020) FLC 93-985; [2020] FamCAFC 231
Robinson and Willis (1982) FLC 91-215
Number of paragraphs: 21 Date of hearing: 10 February 2023 Place: Sydney The Applicant: Self-represented litigant Counsel for the First Respondent: Ms Murphy Solicitor for the First Respondent: Cherry Family Law The Second Respondent: Did not participate Solicitor for the Independent Children’s Lawyer: Bridges Family Law ORDERS
NAA 256 of 2022
BRC 17729 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CANNON
Applicant
AND: MR CANNON
First Respondent
MR GLYNN
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
31 march 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 30 December 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cannon & Cannon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
On 25 November 2022, Ms Cannon (“the applicant”) filed an Application in an Appeal seeking an extension of time to appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 6 September 2022 with the consent of the parties. The application was dismissed by an appeal judicial registrar on 21 December 2022.
On 30 December 2022, the applicant filed an Application in an Appeal seeking a review of the appeal judicial registrar’s decision. Such a review is a hearing de novo and the discretion to extend or not is to be exercised afresh.
The application replied upon two affidavits sworn by her 25 November 2022 and 30 December 2022.
The principles to be applied on such an application were stated by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480–481 as follows:
… 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The aim is to attempt to do justice between the parties. Generally speaking, it falls to the applicant to explain the delay in bringing the application and to satisfy the Court that he or she has reasonable grounds of appeal that justify an extension.
The delay between the orders and the application for an extension is some 10 weeks. In her first affidavit, the applicant said that she was unaware of the 28 day limit in which to file a Notice of Appeal, she said that in that time she had “taken steps to rectify injustice” by lodging complaints with the barrister who acted for her at the hearing with the Legal Services Commission, sought to mediate with the respondent (who declined) and also wrote to the Bar Association of Queensland (Applicant’s affidavit filed on 25 November 2022, paragraph 5).
It seems that the applicant did not seek any legal advice about an appeal. She does not state when she became aware of the time limit, although she must have become so aware at some stage because she filed an application seeking an extension of time.
The later affidavit does not take this aspect of the matter any further. However, it does state that the Legal Services Commission needs further time to investigate the conduct of the barrister.
Whilst being an unrepresented litigant is a misfortune, it does not free the applicant from the constraints that apply under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
As I have said, the applicant refers to no steps taken in relation to an appeal, although at some stage she must have become aware of her rights. It is therefore unknown whether she acted promptly after that date or not. There is no convincing explanation for the delay.
Although the proposed Notice of Appeal drafted by the applicant has seven grounds of appeal, the reality is that Grounds 2–7 are particulars of the first, which was that the applicant’s consent given to the consent orders made was given only due to pressure she was receiving from her barrister.
As was pointed out in Brennan J in Harris v Caladine (1991) 172 CLR 84 (“Harris v Caladine”), consent orders take effect as an order of the court. Thus, it is difficult on an appeal from such an order, to assert that the order was not correctly made.
As Brennan J said, a court will only interfere with consent orders on the same grounds as would interfere with any contract such as fraud, duress or mistake (at 104–105).
In Robinson and Willis (1982) FLC 91-215, Fogarty J said at 77,161:
… The important qualification is that as a consent order is made as a consequent of the consent of the parties to the court making that order and not of an adjudication by the court, the order may not be challenged by an appeal which is directed to the correctness of that order, that is it cannot be appealed against on the merits. However other grounds of appeal remain, as for example fraud, mistake, fresh evidence, absence of jurisdiction…
(Emphasis in original)
Two qualifications might be added to that in light of the observations recorded above from Harris v Caladine. The first is that, even if by consent, the orders may nonetheless be so unreasonable as to be erroneously made (see for example the discussion by Kent J in Melville and Melville (2020) FLC 93-985 at [37]–[39]).
There is no suggestion that that is the case here.
Secondly, as again Kent J pointed out at [33]–[35], the appropriate remedy where orders have been made as a result of fraud, mistake or fresh evidence, is to seek to set those orders aside under either s 65D or s 79A of the Act. This is because such errors do not demonstrate error on the part of the judge who pronounced the consent orders, but vitiate the process by which those orders were obtained, rendering it appropriate that the orders be set aside. Such an approach readily enables the factual allegations such as of duress to be tested at a trial level.
The only matter relied upon by the applicant to found her appeal is what she says is the duress placed upon her by her own legal representative. The conduct was described by the applicant in her first affidavit as follows:
2.I consented to this parenting matter at Trial in the breakout rooms under undue pressure from my representing barrister. I was not acting of my own free will.
3.It would be [a] substantial injustice if these orders were to remain in place, considering the pressure I endured to consent. The behaviour from barrister including; yelling, slamming doors, swearing, threatening with “you will lose your children if you don’t sign”, interrupting when I spoke, repeatedly calling me a “liar”. This made me feel pressured to consent.
(Applicant’s affidavit filed on 25 November 2022, paragraphs 2–3)
It is not immediately obvious to me that such behaviour would amount to conduct that would lead to the orders being set aside. However, it is not necessary for me to decide that and that is a matter possibly for another day.
For present purposes nothing has been shown that would impugn the orders. On their face, they appear entirely unremarkable and it is difficult to see how any appeal against them, given the above principles, would have any prospect of success whatsoever.
Taking both these matters into account, I am not satisfied that there should be an extension of time and the application for a review of the registrar’s decision is dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 31 March 2023
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