Carlton and Kethel
[2016] FamCAFC 59
•21 April 2016
FAMILY COURT OF AUSTRALIA
| CARLTON & KETHEL | [2016] FamCAFC 59 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a draft appeal index – Application for reinstatement of an appeal – Where the father made a Federal Circuit Court contravention application – Where the father applied for an order requiring Centrelink to provide to him with the address of the mother – Where both applications were dismissed – Where the father sought to appeal the dismissal of those applications – Where the father failed to file a draft appeal index in accordance with r 22.13 of the Family Law Rules 2004 (Cth) – Where the appeal was deemed abandoned – Where the father seeks a review of the Registrar’s decision – Whether the father’s appeal is futile – Application in an Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 67J, 67L, 67M Family Law Rules 2004 (Cth) rr 1.14, 22.13, 22.44 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Mr Carlton |
| RESPONDENT: | Ms Kethel |
| FILE NUMBER: | SYC | 196 | of | 2007 |
| APPEAL NUMBER: | EA | 177 | of | 2015 |
| DATE DELIVERED: | 21 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 24 March 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 September 2015 |
| LOWER COURT MNC: | [2015] FCCA 3561 |
REPRESENTATION
| THE APPELLANT: | In person with an interpreter |
| THE RESPONDENT: | No appearance |
Orders
The Application in an Appeal filed on 24 November 2015 be dismissed.
The Application in an Appeal filed 12 November 2015 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlton & Kethel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 177 of 2015
File Number: SYC 196 of 2007
| Mr Carlton |
Appellant
And
| Ms Kethel |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Carlton (“the father”) brings an Application in an Appeal seeking to extend the time for filing a draft appeal index and for reinstatement of his appeal which was deemed to be abandoned because he did not file the draft index within the prescribed time. He also seeks an order that he be provided with the contact details of his children. His appeal arises out of the dismissal of contravention proceedings.
On 3 July 2013 Judge Altobelli made final orders in parenting proceedings between the father and Ms Kethel (“the mother”).
On 2 June 2015 the father filed a Contravention Application in the Federal Circuit Court alleging that the mother had contravened those orders. Further, by an Application in a Case filed on 5 June 2015 the father sought orders requiring Centrelink to provide to him the address of the mother. Both applications were dismissed by Judge Henderson on 29 September 2015.
On 21 October 2015 the father filed a Notice of Appeal against the dismissal of both the applications that were before Judge Henderson.
On 23 October 2015 the Appeals Registrar wrote to the father and informed him, amongst other things, that rule 22.13 of the Family Law Rules 2004 (Cth) (“the Rules”) required him to file a draft index to the appeal books within 28 days of filing the Notice of Appeal. The father was also expressly referred to rule 22.13(3) which provides:
(3)If the appellant fails to comply with subrule (2), the appeal is taken to be abandoned.
Thus the father was required to file and serve a draft appeal index by 18 November 2015. He did not do so and the appeal was taken to be abandoned from the close of business on 18 November 2015.
On 24 November 2015 the father filed an Application in an Appeal seeking an order to extend the time to file and serve the draft index and for reinstatement of the appeal.
The mother did not appear on the hearing of the application because she had not been served with the application. The father likewise did not serve the mother with the proceedings in the Federal Circuit Court. He does not know the mother’s whereabouts. Had there been force in the father’s application consideration would have had to be given to notifying the wife of it.
The contravention application
The orders made by Judge Altobelli on 3 July 2013 were:
(1)The mother have sole parental responsibility for the children [X] born […] 1999 and [Y] born […] 2002 (“the children”).
(2)The children live with the mother.
(3)There be no order for the father to spend time with the children.
(4)The father be at liberty to communicate with the children, and the mother do all things necessary to facilitate such communication:
(a)By way of letters, cards and gifts on their birthdays and at Christmas; and
(b)By letters no more than once monthly, PROVIDED THAT the father does not in the course of such communication:
(i)Discuss these orders, or the separation and subsequent proceedings between the parents, or any issue arising therefrom; and/or
(ii)Denigrate the mother.
(5)The mother will regularly inform the father by mail, email or SMS and keep the father informed about all significant matters relating to the children’s health and education.
…
The father’s contravention application relied upon the following contraventions as set out in his application:
1.12.07.2014 at 04.15 pm The Mother travailed to the overseas without our children due about 12 week
While travel overseas the mother didn’t inform to the father by mail, email or SMS about to the children’s education and health (plz see 3.7.2013 date court order section 5)
2.06.04.2015 at 8.00 am and following ongoing five(5) days My son [X] didn’t attend to the [M] High school also
(I don’t know anything about [Y] School)
While missing to school the mother didn’t inform to the father by mail, email or SMS about to the children’s education
(plz see 3.7.2013 date court order section 5)
3.13.04.2015 at 8.00 pm the Mother and our children’s was already leave from them residential address but The mother didn’t inform to the father by mail, email or SMS about to the children’s education and health (plz see 3.7.2013 date court order section 5)
(as per the original)
The evidence of the father before the trial judge merely repeated the substance of the application and did not refer to any other facts.
The trial judge commenced her reasons by saying:
6.The second reason is the contravention application filed on 2 June 2015 is defective in that I cannot ascertain from it the specific allegations or particulars of the breach. The annexures to the contravention do not appear to me to relate the asserted breaches of orders.
Her Honour then continued:
7.As I read the evidence, there is no evidence of any significant matters relating to the children’s education or health in the father’s material that the mother should have informed him of, no evidence that the father has communicated with the children by way of letter, gift or card on their birthday or letter once a month and the mother has hindered in them receiving those communications.
8.The evidence the father attached to his material is as follows: annexure 8. A complaint that the mother travelled overseas without the children, that the mother did not inform him about the children’s education and health during that period, that on 6 April 2015 his son did not attend at [M] High School for five days. He knows nothing about his daughter’s schooling. The school would not give him any information about the children.
9.In his affidavit of 22 September 2015 the father says a person unknown rang him on 12 July 2014 and said the mother has left the children in Australia and travelled [overseas]; that the mother’s boyfriend and sister and her husband kept the children forcibly in their home; that every day of the week of 6 April 2014 he went to see his son at school and he did not attend; that the mother “has not advised me of the address of the high school where his daughter attends”, and the mother has changed address and has not told him; that her mother’s mental illness would be deteriorating and continuing to deteriorate; that if the mother allowed the children to see their father they would want to live with him, and it is the best interests of the children they live with their father.
10.There is no obligation under the orders for the mother to provide addresses or details of her home or the children’s home or their school. I accept it may well be that attending high school is a significant event in a child’s education, but the father’s evidence falls short, both in the way that it is prepared and presented in satisfying me that there is or has been any breach.
(emphasis as per original)
Her Honour thus dismissed the application.
The application in a case – location order
In dismissing this Application in a Case the trial judge said:
11.The boy, [X], is 16 and a-half and will be 17 next year. [Y] is 13 and will be 14 next year. I am concerned that to permit the father to pursue this contravention which can only be done if he obtains from me a location order for the mother’s address in circumstances where Judge Altobelli found, at paragraph 158 of his judgment, that the husband prioritises his rights over the needs and interests of the children, denies any fear in his children of them having witnessed him perpetrate family violence on their mother may result in harm to the children.
12.The father has failed to adhere to orders of the Court in the past. He has behaved poorly towards his family in the past. The continuation of litigation re-victimises the mother every time the matter is brought back to Court. This together with the obligation of the Court to minimise further litigation in circumstances where the evidence filed is sorely lacking to support any positive finding or prima facie case of a contravention supports my decision not to exercise my discretion to hear these applications and the application for contravention is dismissed.
Application in an appeal to extend time
The father seeks an extension of time in which to file the draft index to the appeal book under rule 1.14 and for reinstatement of his appeal pursuant to rule 22.44.
The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480 - 481. McHugh J said:
…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 hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, and the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
The father said that he did not file the draft index within time because of his poor grasp of the English language. He said that he did not properly understand the letter from the Registrar until it was translated by a friend and he became aware of what was required. The father has since filed a draft appeal index which would seem to omit some relevant documents and include others that were not before Judge Henderson.
This explanation by the father somewhat favours the application he brings, although the father is obliged to comply with the Rules whether or not they are drawn to his attention by the Appeals Registrar.
It is necessary to address the merits of the appeal because the mother submits any extension would be futile as the father’s appeal must fail. It is important to observe that the above remarks in Gallo v Dawson were made in the context of an Application to extend time in which to file a Notice of Appeal. Nonetheless they are relevant to this matter.
In Jackamarra v Krakouer and Anor (1998) 195 CLR 516, Brennan CJ and McHugh J said at 519-521:
4.These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question - should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court's business would be prejudiced by granting the application.
…
7.Cases such as Palata are therefore concerned with applications that seek to put at risk the substantive rights of the respondent. It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, "must be investigated and decided in the manner appointed". If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. The merits are examined at the end of the process, not during its course. It would lead to strange consequences if consideration of the merits was a prerequisite for extending the time for each and every step in the conduct of the appeal, just as it would lead to strange consequences if consideration of the merits was a factor to be determined in considering extensions of time for every step in ordinary actions.
(Footnotes omitted)
In that case, Gummow and Hayne JJ said at 528:
33.... So, too, when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. For the moment, however, we leave consideration of adverse effects of delay on the respondent to one side and look only to the degree of satisfaction that the court must have that the appeal will fail.
34.We do not think it useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail and in that sense is not “arguable” or not “fairly arguable” …
In a slightly different context, Chernov JA said in Sedrak v Carney and Anor [1999] 3 VR 95:
16.In my view, however, as I made clear to the parties at the commencement of the hearing of this application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondents and cause needless expenditure of public funds if the appeal were otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that what must be clearly shown before the applicant is denied the right to have his or her appeal heard, is that the appeal would fail.
There is some significance, however, in the fact that, in each of these cases, an appeal had been filed in time and the applicant was seeking to be excused from the consequences of a procedural delay in preparing the appeal for hearing. In circumstances where the appellant has properly exercised his or her right to appeal, the merits of the appeal are not as significant a consideration as they may be if the appeal has not been filed in time. On any view, however, the merits of the proposed appeal are a relevant consideration.
This is of course a case where the appeal has been filed in time and the applicant seeks to be excused from the consequences of a procedural delay.
Accordingly I now turn to the merits of the appeal.
As the trial judge pointed out the father did not adduce any evidence that establishes, or from which it might be inferred, that there has been a significant event involving the children’s education and health. That lack of evidence was fatal to the contraventions.
As to the first alleged contravention, the fact that the mother travelled overseas without the children for about 12 weeks cannot be a contravention of any of Judge Altobelli’s orders in the absence of any suggestion that some relevant event occurred during that period about which the mother should have informed the father.
As to the second contravention there is no evidence that the son was attending M High School at that time or again that there was any relevant event about which the father was required to be informed. The third alleged contravention suffers from the same difficulty.
The allegations of each contravention are so vague and unparticularised that it is impossible properly to frame a charge to be put to the mother.
It follows that the father’s contravention application must have failed and that the appeal from its dismissal is entirely devoid of merit.
I take into account the fact that the mother has not incurred any costs in relation to either the Contravention Application or the Applications in an Appeal. This was because the father has been unable to locate the mother to serve her with any of the relevant documents.
I am fully conscious of the fact that the father seeks to be excused from a procedural irregularity for which he has some explanation. However it is abundantly apparent that the Contravention Applications were doomed to fail. The grounds of contravention relied upon by the husband were not properly drawn grounds. They were not supported by any evidence. This aspect of the appeal is entirely lacking in merit and no extension of time should be granted as to it.
The Application in a Case before the trial judge sought the following orders:
1.THE FATHER NOT BE ABLE TO SERVE CONTREVENTION APPLICATION TO THE OTHER PARTY BECAUSE;
2.THE MOTHER WAS LEAVE FROM THE PREVIOUS ADDRESS WITHOUT INFORM TO THE FATHER
3.I REQUEST FROM THE FAMILY COURT MAKE ORDER TO CENTRELIK FOR PROVIDE TO THE FATHER TO NEW ADDRESS OF [MS KETHEL] (THE MOTHER)
(as per the original)
It is to be immediately observed that neither of the first two orders sought is in fact an order but is rather a reason for the making of order 3.
The court is empowered by s 67M to make orders requiring a person to provide to the Registry Manager of the court information as to a child’s location or information about the child’s location that is contained in or comes into the records of a department or an appropriate authority of the Commonwealth instrumentality. Centrelink is such an authority.
The difficulty for the father is that pursuant to s 67J of the Family Law Act 1975 (Cth) (“the Act”) such orders are to be made in relation to the child’s location. The section does not authorise the making of orders to disclose another person’s location. The application of the father was thus fatally defective. Secondly, s 67L provides that in deciding whether or not to make a location order in relation to a child a court must regard the best interests of a child as a paramount consideration. At no stage has the father sought to identify any error in the trial judge’s reasoning that providing the child’s address or providing the mother’s address to the father would not be in the children’s best interests. Finally it is apparent from the form of Contravention Application itself that the purpose of obtaining the address of the mother was to enable him to serve a Contravention Application. As is made quite clear from the above sections that is not the purpose of a location order. The application would thus appear to be an abuse of process.
Again the Application in a Case was doomed to fail and the appeal from its dismissal is devoid of any merit whatsoever.
It follows that as no aspects of the father’s appeal have any merit, it is entirely futile and his Application in an Appeal filed on 24 November 2015 will be dismissed.
Application in an appeal filed 12 november 2015
Also before the court is an Application in an Appeal filed on 12 November 2015 in which the father sought the following orders:
1. I Request from the family court seeking Mother was Run away and Kidnap our Children from the family court and the Father
2. I request from the Family court seeking my children’s new contact detail and provide to the father urgently
(as per the original)
As is apparent from the form of the orders the Application in an Appeal has no apparent relationship to the appeal. Rather, it seems to be a fresh application for a location order at this time seeking the children’s address. It will therefore be dismissed.
The father is at liberty to make a fresh application to the Federal Circuit Court for the address of the children, although given the reasons of Judge Henderson consideration will need to be given by that trial judge as to whether that further application is of itself an abuse of process. It is to be observed that, given the findings of Judge Altobelli, it would be most unusual for the children’s, and hence the mother’s, address to be provided directly to the father. Thus the Application in an Appeal filed 12 November 2015 will also be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 April 2016.
Associate:
Date: 21 April 2016
0
6
2