CANTERE & WILTON-STOTE - [2015] FamCAFC 136

FAMILY COURT OF AUSTRALIA

CANTERE & WILTON-STOTE

[2015] FamCAFC 136

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the father seeks an extension of time to file a Notice of Appeal – Where the application is opposed – Where there is an adequate explanation for the delay – Where there appears to be at least one arguable ground of appeal – Where there are consequences for the mother and the father if the application is granted or refused – Where the justice of the case requires that the application be allowed.

FAMILY LAW – APPEAL – COSTS – Where the mother seeks her costs – Where the father opposes the application on the basis of his financial circumstances – Where impecuniosity is no bar to an order for costs being made – Costs ordered as sought by the mother.

Family Law Act 1975 (Cth) – ss 94AAA(1), (5), (10, (11), (12), 60B, 60CC and 117(2)
Family Law Rules 2004 (Cth) – rr 22.02, 22.03, 22.11 and Chapter 22

Gallo v Dawson (1990) 93 ALR 479
M v M (1988) 166 CLR 69
McMahon and McMahon (1976) FLC 90-038
Tormsen and Romsen (1993) FLC 92-392

APPLICANT:

Mr Cantere

RESPONDENT:

Ms Wilton-Stote

INDEPENDENT CHILDREN’S LAWYER:

Brendan Bowler

FILE NUMBER:

ADC

3119

2013

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

7 July 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

7 July 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 March 2015

LOWER COURT MNC:

[2015] FCCA 549

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Read

SOLICITOR FOR THE APPLICANT:

Legal Services Commission of South Australia

COUNSEL FOR THE RESPONDENT:

Mr Fleming

SOLICITOR FOR THE RESPONDENT:

Elizabeth Fleming & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Bowler

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWER:

Hume Taylor & Co

Orders

The time for the father to file and serve a Notice of Appeal against the orders made by Judge Brewster on 13 March 2015 be extended to the close of business on Friday 4 September 2015.
The father pay the mother’s costs of and incidental to the application fixed in the sum of $825, such costs to be paid within 12 months of the date hereof.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 36 of 2015
File Number : ADC 3119 of 2013

Mr Cantere

Applicant

And

Ms Wilton-Stote

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Introduction

I have before me an Application in an Appeal filed by Mr Cantere (“the father”) on 15 May 2015, seeking an extension of time to file a Notice of Appeal against orders made by Judge Brewster on 13 March 2015. That application is supported by two affidavits of the father, one filed on 15 May 2015 and the other filed on 3 July 2015. There is also a draft Notice of Appeal, which is the Notice of Appeal that would be proceeded upon, at this stage at least, in the event that the application is granted, and that draft Notice of Appeal is annexed to the affidavit of the father filed on 15 May 2015.
The application is, if I can put it like this, not consented to by Ms Wilton-Stote (“the mother”). It is however supported by the Independent Children’s Lawyer (“the ICL”).
I have also been provided with summaries of arguments on behalf of the father and the ICL.

Relevant statute law and rules of court

Section 94AAA of the Family Law Act 1975 (Cth) (“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.

Applicable Principles

The law in relation to applications for extension 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. Indeed, the relevant authority is relied upon by both the father and the ICL.
In summary, what those cases tell me, and also, of course, what Gallo v Dawson tells me, is that there are a number of relevant factors which need to be addressed in determining this application. They include factors such as whether there are adequate reasons which explain the failure to comply with the timeframe for the filing of a Notice of Appeal, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent to the application which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application.
The overarching principle though is to ensure that injustice is not visited upon primarily the applicant, but also the respondent.
Mr Bowler for the ICL has also put to me that in cases where children are involved, as in this one, the interests of justice should also include the effect of the decision on those children. I am content to proceed on that basis.

Discussion

In terms of the relevant factors for me to consider in this matter, not all of those factors that I have enumerated that flow from the authorities were addressed in submissions before me. The primary factors that were addressed were first, the question of an explanation for the failure to comply with the timeframe for filing the Notice of Appeal, and secondly, the issue of the merits of the appeal or, put another way, the prospects of success or otherwise of the appeal. Although it was not specifically addressed, a factor which I consider I must also have regard to is the prejudice to the parties, depending upon whether the application is granted or refused.
In a general way I am aware of some of the other factors that would be relevant, such as the history of the proceedings and of course, the nature of the litigation, and that highlights the submission of Mr Bowler in terms of the interests of the children.
Turning then to those relevant factors.

Adequate explanation

There needs to be an adequate explanation for failing to comply with the timeframe to file a Notice of Appeal. That timeframe is 28 days following the orders that are sought to be appealed against. If the reasons for judgment are delivered somewhat later than the orders being made, then, time does not commence to run until those reasons for judgment have been delivered, but that is not the case here. The orders were made on 13 March 2015, and the reasons for judgment were delivered at that time. Thus, in terms of the timeframe, the time to file within the Rules expired on 10 April 2015.
In his affidavits, and this is not in contest, the father tells me that when the decision was handed down, he was camping, and as a result, he did not receive a copy of the order of the trial judge until on or about 24 March 2015.
As I understand it, the father had a grant of legal aid for the purposes of the trial before his Honour. On 31 March 2015 he applied for a further grant of legal aid to appeal the order. Apparently on 17 April 2015 he received a grant of legal aid for that purpose, but it was not until 22 April 2015 that his solicitor received correspondence from the Legal Services Commission advising that the grant of legal aid had been approved. Thus, it was not until 22 April 2015 that the solicitor was in fact enabled by the grant of legal aid to proceed with the appeal.
I note that by 17 April 2015 and certainly by 22 April 2015, the time for filing a Notice of Appeal in accordance with the Rules had already expired. In that regard I am somewhat bemused by the fact that no application was immediately made for an extension of time to file a Notice of Appeal. Instead, the solicitor instructed counsel to just prepare and settle a Notice of Appeal, despite there being no ability to file a Notice of Appeal after 10 April 2015.
In any event, that is the way the matter has progressed.
In the later affidavit of the father he sets out in more detail the history of the matter thereafter. By that I mean, after 22 April 2015. The trials and tribulations of counsel and his solicitor in progressing the matter in a timely fashion are there deposed to. It was not until 29 April 2015 that his solicitor received the grounds of appeal settled by counsel. The solicitor then set about preparing the Notice of Appeal.
On 1 May 2015 the solicitor attempted to file the Notice of Appeal at the Adelaide Registry of the Family Court of Australia. Not surprisingly, but it seems it may have been surprising to the solicitor, he was advised by the Adelaide Registry that the Notice would need to be filed in the Southern Appeal Registry. Then, on 4 May 2015, the solicitor filed the Notice of Appeal at the Southern Appeal Registry, despite the fact that the time for filing had well and truly expired. And, again, not surprisingly to perhaps most people, but seemingly not to the solicitor, on 8 May 2015 he received correspondence from the Family Court of Australia advising that an Application in an Appeal would need to be filed as he was out of time to file a Notice of Appeal.
It was then on 15 May 2015 that the necessary and relevant application was filed, together with a supporting affidavit.
Despite my surprise and concern at the apparent lack of knowledge as to the court process in progressing the matter, and what needed to be filed; and despite my concern that at the time that it was realised the appeal was out of time, an application was not then filed, I am satisfied that there is a reasonable explanation for the failure to comply with the timeframe for the filing of a Notice of Appeal in this matter.
There are in fact two periods of time that need to be explained in these matters. First, the 28 day period that is allowed, or within which it is permitted to file a Notice of Appeal, and secondly, any delay in filing an Application in an Appeal. To repeat, I have concerns about that latter delay, but I am prepared to overlook those concerns in this matter.

The merits of the appeal

The grounds of appeal which I need to consider in that context are, of course, set out in the draft Notice of Appeal. As I have explained to counsel, they are in fact the only grounds of appeal that I can have regard to.
I am told that it is intended, if the appeal is allowed to proceed, that there be amended grounds of appeal filed, and one of the reasons why that is necessary is because the transcript of the hearing has not been able to be obtained. I am afraid that that carries no weight with me. I note that counsel now appearing, and who will appear in the appeal, was counsel at trial, and I fail to see why a transcript is necessary to complete initial grounds of appeal. However, in any event, as I say, it is not for me to take account of proposed amended grounds of appeal which I do not have before me, and in respect of which I do not know the content. All that I can address are the grounds of appeal and the draft Notice of Appeal that is before me today.
It is not possible for me to be definitive in assessing the merits of this appeal. As is obvious, I have limited documentation, namely the reasons for judgment of the trial judge, and the draft Notice of Appeal that I have just referred to.
The authorities tell me that I must have regard to the prospects of the appeal succeeding. That is clearly a difficult exercise for this court to undertake. The point of the present application is to determine whether or not there will be an appeal allowed to proceed. If the appeal is allowed to proceed, then the issues which arise on the father’s Notice of Appeal, and the issues which arise in resisting it, as they emerge from the documents and the submissions of the mother would be likely to engage the Appeal Court for some time, and that process would require careful and close consideration before the judgment of the Appeal Court is reached. To repeat, it is a difficult task to address the prospects of the appeal simply in reliance upon the reasons for judgment of the trial judge which give rise to the appeal, and the seemingly somewhat hastily drawn Notice of Appeal, which frankly leaves in doubt exactly the basis in law upon which the decision of the lower court is sought to be impugned.
Historically, this court has approached the question of the prospect of success on appeal from a low threshold, and it is often expressed as whether it is demonstrably apparent that the appeal is hopeless or doomed to fail. In this regard the exercise is somewhat similar to the exercise required in determining an application for summary judgment, and it would appear that even the remotest chance of success is enough to get over that low threshold. Or, put 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, the appeal should be allowed to proceed.
There are 16 grounds of appeal in the draft Notice of Appeal. Counsel has made submissions in relation to them, and I have challenged counsel as to the adequacy of a number of them. Some of the grounds I simply do not understand, and some of them I do not consider to be proper grounds of appeal. However, to use the vernacular, I bear in mind the circumstances in which this application has been put together.
The grounds of appeal, or those that are perhaps readily understandable, are couched in general terms and, as I say, probably necessarily so, but I do not quite understand Ground 3, for example.
Ground 4 is a ground that is relied on heavily by counsel as being a ground that has a reasonable chance of success.
I do not understand Ground 8; pre-judgement and bias. There is nothing that I can see from the material that I have before me that would allow that ground to be pursued but, again, there may be things that I do not know which may be able to be put before an Appeal Court, and which would allow that ground to proceed.
With Ground 9, I must have misread his Honour’s reasons, but his Honour dealt in extenso with the principles in s 60B and s 60CC of the Act.
I do not understand Ground 12 which reads as follows:
That the Trial Judge erred in that he did not require the mother to return to Adelaide with the children against the relevant principles of law.
I ask, what principles of law? I note that his Honour dealt with the issue of the return of the mother in his reasons for judgment and, indeed, his Honour said, and it has not been challenged, that that aspect of the case was neither explored in the evidence, nor were submissions made about it.
Nor do I understand Ground 13. It is certainly not something that is demonstrated readily from a perusal of his Honour’s reasons for judgment.
I also do not understand Ground 14.
Ground 15, in my view, was not a matter that was argued before his Honour, and cannot be pursued.
I will not continue with this exercise but, as is clear, I have serious difficulties with the grounds of appeal that are promoted. But that is not the be-all or end- all of this application.
Counsel for the father also relies on the submissions made by the ICL as to the merits of the appeal, appearing specifically in paragraph 18 of the summary of argument filed by the ICL. Many of the matters raised in that paragraph appear to properly challenge the adequacy of the reasons of the trial judge, yet there is no ground of appeal that complains of that in the draft Notice of Appeal.
However, there are in my view, a number of concerns with his Honour’s reasons for judgment, and I refer in particular to [70] where his Honour commences by referring to the well-known case of M v M (1988) 166 CLR 69, and the relevant test being whether there is an “unacceptable risk”. If one then continues and reads the first half of that paragraph one would consider that his Honour was in the process of finding that there was not an unacceptable risk, but by reference to other matters in the balance of the paragraph, his Honour in the final sentence concludes as follows:
… I find that the children’s spending time with their father would expose them to an unacceptable risk of sexual abuse.
In my view, this is clearly a case of inadequate reasons but, as I say, there is no specific ground of appeal addressed to that. Thus, what is relied on as properly challenging that paragraph and other parts of his Honour’s reasons for judgment, is Ground 4, which reads as follows:
That the Trial Judge erred in that his findings were inconsistent with, and against the weight of, the evidence.

It seems to me that that is a ground of appeal that has a reasonable chance of success, and that is all I need to satisfy myself about at this level. I also note that in submissions by Mr Fleming for the mother, he conceded that there are difficulties specifically with [70], and he also, in effect, conceded that there was some prospect of success evident in the relevant grounds of appeal in that regard.
I hasten to add that these comments are not to be taken as indicating that there will be success in this appeal. I do not have the full complement of material that the Full Court would have before it in determining this matter, and this is very much a preliminary view, as I say, on the basis of the only documentation that is before me, namely the reasons for judgment and the draft Notice of Appeal. Thus that battle will still need to be fought and no comfort in terms of what the ultimate result might be can be taken necessarily from the comments that I have made in relation to the merits of the appeal.
In conclusion then in relation to that factor, it cannot be said that the appeal is demonstrably hopeless or doomed to fail.

The consequences for the parties in granting or refusing the application

If the application is granted, then time will be extended and a Notice of Appeal will be filed, and the mother will need to deal with it. She will need to spend time and, presumably money, either privately or via Legal Aid, in responding appropriately to the appeal. Thus, there is an obvious prejudice to the mother given that the current situation is that there is no appeal on foot, and the time for filing an appeal has expired.
On the other hand, if the application is refused, then the father would not be able to pursue his appeal and, significantly, there is no appeal from a refusal to grant an application such as this. There is of course the ability to apply for special leave to appeal to the High Court of Australia. However, that is a difficult exercise and may not be warranted in this case. In any event, this is a serious consequence for the father if his application is refused.

Conclusion

As the authorities recognise, the court’s consideration of the relevant factors here informs the court in determining the fundamental issue, namely, where the justice of the case lies. I also take into account the submission of counsel for the ICL that if the judgment is to stand, then that will have a serious and long-lasting effect on the children. Effectively, their relationship with their father would be severed, and that is a relevant matter, in my view, to take into account when considering where the justice of the case lies.
I have found, despite some concerns, that there is an adequate explanation for the failure to comply with the Rules and file the Notice of Appeal within time. Significantly, I have found that there is an arguable case on appeal in certain respects, and, of course, there would be serious consequences for the father if the appeal was not able to proceed, and importantly, also for the children. Thus, the interests of justice require that the application be granted, and that is the order I propose to make.

Costs

I now have an application for costs on behalf of the mother and the amount sought is $825, which is $750 plus the relevant amount for GST. That order is opposed and it is opposed on the basis of the poor financial circumstances of the father, namely he is unemployed, he receives a social security benefit and he has a grant of Legal Aid for the purposes of this matter.
In the words of section 117(2) of the Act, I consider that there are circumstances here that justify an order for costs being made. Although the application has been successful, the application was only necessary because of the failure by the father to comply with the Rules, and in the circumstances the mother was entirely justified in taking the position that she did through her solicitor, in not consenting to the application, and leaving the matter to be determined by the court.
Applications such as these necessarily seek an indulgence from the court in circumstances where the need for the application results from the conduct of the applicant. The question though is whether an order should be made, given the financial circumstances of the father.
In my view, there should be an order for costs. Impecuniosity is not a bar to an order for costs being made and, to repeat, the only reason that we are here is because of the failure by the father to comply with the Rules. I note that there has been no challenge to the reasonableness of the amount sought, and thus I propose to make an order in terms of that amount.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 7 July 2015.

Associate:

Date: 16 July 2015