CASANO & ANTIPOV
[2017] FamCAFC 50
•29 March 2017
FAMILY COURT OF AUSTRALIA
| CASANO & ANTIPOV | [2017] FamCAFC 50 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the father failed to attend a hearing for his application for an extension of time to file the appeal books – Where the appeal was taken to be abandoned – Where the appeal was instituted within time – Where the appeal is not so devoid of merit that to reinstate it would be futile – Appeal reinstated and procedural orders varied – Applicant to pay costs of the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) s 97(3) Family Law Rules 2004 (Cth) rr 22.03, 22.21 |
| Batey-Elton & Elton [2009] FamCAFC 101 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Mr Casano |
| RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Ms Antipov Ms Rowley |
| FILE NUMBER: | PAC | 3528 | of | 2012 |
| APPEAL NUMBER: | EA | 153 | of | 2016 |
| DATE DELIVERED: | 29 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 28 March 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 August 2016 |
| LOWER COURT MNC: | [2016] FamCA 653 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr O’Sullivan (by telephone) of O’Sullivan Legal |
| SOLICITOR FOR THE RESPONDENT: | Ms Karagiannis of Legal Aid NSW |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Rowley of Rowley & Associates |
Orders
Appeal No EA 153 of 2016 is reinstated.
That the procedural orders made on 3 November 2016 be varied as follows:
(a)In Orders 3 and 4 the date for compliance be varied from 22 December 2016 to 28 April 2017;
(b)In Order 5 the date for compliance be varied from 24 February 2017 to 5 May 2017;
(c)In order 6 the date for compliance be varied from 24 March 2017 to 2 June 2017; and
(d)In Order 7 the date for compliance be varied from 6 April 2017 to 16 June 2017.
The applicant pay the Independent Children's Lawyer’s costs of and incidental to the application for reinstatement of the appeal, such costs to be agreed or assessed and to be paid within 28 days of their agreement or assessment.
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 Casano & Antipov 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 SYDNEY |
Appeal Number: EA 153 of 2016
File Number: PAC 3528 of 2012
| Mr Casano |
Applicant
and
| Ms Antipov |
Respondent
and
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 10 August 2016 following contested proceedings between Mr Casano (“the father”) and Ms Antipov (“the mother”) Hannam J made parenting orders concerning the parties’ only child B (“the child”) who was born in 2009. The orders provided that the mother have sole parental responsibility for the child. The trial judge further ordered that the father spend no time with and have no communication with the child.
An earlier order made in September 2015 provided for the father to spend supervised time with the child. The father elected not to take up that time and, as a result, has not seen the child since November 2015.
By Notice of Appeal filed on 7 September 2016, the father challenges her Honour’s orders.
Having filed the Notice of Appeal within the time specified by r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”), a procedural hearing was conducted by an Appeal Registrar on 3 November 2016. On that occasion the father was represented by counsel. Orders were made that the father file and serve his appeal books by 22 December 2016. The father failed to comply with those procedural orders and instead, on 21 December 2016, filed an Application in an Appeal seeking an extension of time of six months in which to comply with the orders made on 3 November 2016.
The application was listed for hearing before the Appeal Registrar on
18 January 2017 when there was no appearance by or on behalf of the father. The application was adjourned to 10.00 am on 22 February 2017. The applicant, who now lives in Country O, contacted the Appeal Registry by email and requested that the application be heard in the absence of the parties, or that he be permitted to attend the hearing of his application by telephone and, in view of the time difference, that it be listed for hearing at 2.00 pm instead of 10.00 am. This second request was granted. However on 22 February 2017 the father again failed to telephone the Appeals Registry for the purpose of attending that hearing.
Accordingly, on 22 February 2017 the Appeal Registrar made orders dismissing the Application in an Appeal filed by father on 21 December 2016 seeking an extension of time in which to file the appeal books, and pursuant to r 22.21 of the Rules deemed the appeal to be abandoned.
The father seeks that the decision of Registrar Cameron made on 22 February 2017 be reviewed. The application also seeks variations of the procedural orders of 3 November 2016.
A solicitor appeared for the father on the application and agreed that the thrust of the application is for reinstatement of the appeal and that it was unnecessary to consider the application for review of the Registrar’s decision to dismiss the father’s application for an extension of time. Both the respondent and Independent Children’s Lawyer agreed with this course.
Applicant’s evidence
It seems that the father’s previous solicitors ceased to act for him in early December 2016.
The father said that he did not appear at the first listed hearing of his application for extension of time because, as he is now living in Country O, the allocated time for the hearing, 10.00 am, was 6.00 am in Country O and it represented an inconvenience for him. When the second hearing was listed, it was listed at 2.00 pm to suit the time difference. As to his failure to attend this appearance, the father said that he telephoned the Registry at the required time on 22 February 2017 and annexed a record of his calls to his affidavit. The father deposed to making a number of attempts to call the Registry without success. When he finally made contact, he was unsuccessful in attending the directions hearing. The father says that at 10.53 am he received an email from the Appeal Registry advising him that his application had been dismissed and the appeal deemed abandoned.
The application for reinstatement was opposed by both the advocate for the mother and the Independent Children's Lawyer.
Reinstatement of the Appeal
The well-known principles derived from Gallo v Dawson (1990) 93 ALR 479 have been applied to applications for reinstatement of an appeal, although the question in Gallo v Dawson concerned the extension of time in which to appeal rather than reinstating a filed appeal (see Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101).
The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time, or to reinstate an appeal, is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave.
The appeal was brought within the time provided by the Rules and after the appeal was deemed abandoned, the applicant sought reinstatement within a relatively short time.
Failure to comply with the order for preparation of the appeal books and failure to attend the hearing of the application for extension
In this matter, at least in the first instance, the father’s failure to attend the appointed directions hearing is not explained by his personal inconvenience by it being early in the morning. Although it was suggested for the mother that the father’s account of his failure to attend the second directions hearing was unsupported, I am nonetheless prepared to accept it for these purposes.
As to why the father failed to comply with the direction to file the appeal books, it was said that he had not appreciated the enormity of the task involved. For the mother it was observed that the father had previously appealed interim orders of the trial judge which involved preparing appeal books. It is difficult then to understand how the father’s previous experience did not inform him of the level of effort required to prepare the appeal books as directed.
Nonetheless, it was argued for the father that he is now in funds sufficient to enable him to prepare the appeal books in a timely fashion.
The application for extension of time in which to permit the filing of the appeal books sought an extension of six months to enable to father to comply with the directions. In his application for reinstatement, that application was not pressed and the father sought an extension of some weeks to permit him to comply with the procedural directions.
Lest it be thought that delay in bringing the appeal to hearing through failure to comply with procedural directions is some technical or minor matter, it is apposite to recall what was said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. That case, although concerned with time limits for the commencing of proceedings, nonetheless resonates on the question of delay and justice. McHugh J said at 553:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
Moreover, s 97(3) of the Family Law Act 1975 (Cth) (“the Act”) contains the statutory prescription that in proceedings under the Act the Court “shall endeavour to ensure that the proceedings are not protracted.”
It was argued for the mother and by the Independent Children's Lawyer that to permit the reinstatement of the appeal would represent a significant burden on the mother, and through her, the child.
It was submitted that while in 2012 the child was spending four nights each fortnight with the father, the trial judge ordered in September 2015 that the father’s time with the child be supervised. The father has not taken up the ordered time and it appears uncontentious that he has not seen the child since November 2015. Of course, he is now living in Country O which no doubt will make any time he spends with the child difficult to facilitate.
It was further argued that the proceedings before the trial judge were bitter and protracted and to permit the appeal to continue would impose an emotional burden on the mother. The Independent Children’s Lawyer submitted that to do so would not be in the child’s interests.
There can be no doubt that the continuation of such litigation can represent a source of ongoing anxiety and uncertainty for the mother where orders relating to the child are under challenge.
Merits of the appeal
In determining the application, it is necessary to consider whether the appeal is so devoid of merit that it would be futile to make the order sought. In such a case it would create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. It is recognised that it must be clearly shown that the appeal would fail before an applicant is denied the right to have his or her appeal heard.
This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. Where an appeal has been properly instituted but not appropriately prosecuted, it is not necessary to embark on a detailed examination of the prospects of success as Brennan CJ and McHugh J said in Jackamarra v Krakouer (1998) 195 CLR 516 at [7]:
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.
(Footnotes omitted)
For the mother it was argued that the father’s appeal is lacking in merit. She contended that the appeal challenges the exercise of the trial judge’s discretion and pointed to the well-known hurdles to appellate success in such challenges.
Nonetheless I am not persuaded that it is sufficiently devoid of merit that it would be futile to order it to be reinstated.
In this case, I am satisfied that the applicant’s appeal should be reinstated. I propose too to make the variations to the procedural orders as sought by the father.
Costs
The Independent Children's Lawyer sought an order that the father pay her costs of and incidental to the application for reinstatement.
Although the father’s solicitor said that he had no present information about the father’s financial circumstances, I take into account that the father’s affidavit indicates that he now has sufficient funds to pay for the preparation of the appeal books. I also note that in this case the father seeks an indulgence from the Court brought about by his default. In my view, it is in all the circumstances appropriate that a costs order by made.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 29 March 2017.
Associate:
Date: 29 March 2017
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