Casey and Stadler and Anor
[2020] FamCAFC 121
•20 May 2020
FAMILY COURT OF AUSTRALIA
| CASEY & STADLER AND ANOR | [2020] FamCAFC 121 |
| APPEAL – APPLICATION FOR REINSTATEMENT – Where the applicant failed to file a Draft Appeal Index as directed – Where the appeal was deemed abandoned – Where the applicant seeks to reinstate their appeal – Delay explained – Where the applicant seeks to appeal the dismissal of their application for a recovery order in relation to a 17 year old – Where the proposed grounds of appeal are unlikely to attract appellate intervention – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules (2004) r 22.13 and r 22.44 |
| Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 |
| APPLICANT: | Ms Casey |
| FIRST RESPONDENT: | Ms Stadler |
| SECOND RESPONDENT: | Mr Sade |
| FILE NUMBER: | SYC | 4789 | of | 2011 |
| APPEAL NUMBER: | EA | 5 | of | 2020 |
| DATE DELIVERED: | 20 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (by telephone) |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 13 May 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 November 2019 |
| LOWER COURT MNC: | [2019] FCCA 3813 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE FIRST RESPONDENT: | No appearance |
| THE SECOND RESPONDENT: | No appearance |
Orders
That the Application in an Appeal filed on 27 April 2020 to reinstate Appeal EA 5 of 2020 be dismissed.
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 Casey & Stadler and Anor 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 5 of 2020
File Number: SYC 4789 of 2011
| Ms Casey |
Applicant
And
| Ms Stadler |
First Respondent
And
| Mr Sade |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 27 April 2020, Ms Casey seeks to reinstate her appeal against an order made by the primary judge on 29 November 2019 (“the order”). The order dismissed her application for a recovery order concerning P, born 2002, aged 17 years.
Ms Casey is P’s paternal aunt. She says that an order was made years ago giving her parental responsibility for P. There is no evidence before me of that order but it is appropriate to proceed on the basis that she does and that she has standing as a person with an interest in the child’s welfare. It is not necessary to say anything further on this point as will shortly be explained, Ms Casey’s application to reinstate her appeal will be dismissed.
It is Ms Casey’s belief that P is in a relationship with Mr Sade and they are living together in Melbourne.
Mr Sade was named as a respondent to the application at first instance and to the proposed appeal. There is no evidence that he has been served or indeed, that any attempt at service was made. He did not participate today but as it is not apparent that he is a necessary party, the lack of service does not matter.
Ms Stadler, P’s mother, was also named as a respondent to the application at first instance but was not listed as a respondent to the appeal. She did not participate today. Again, there is no suggestion that she was served or that service was attempted. Ms Casey said that the mother has had no role in P’s life for a long time. In the circumstances, I am not troubled by the lack of evidence as to service.
Ms Casey filed her Notice of Appeal against the order on 27 December 2019. The Notice contained several defects, including omitting to name a respondent(s) to the appeal. The Appeals Registry advised Ms Casey by email on 8 January 2020 that she was required to file an Amended Notice of Appeal within 14 days to correct the defects. Ms Casey was further advised that she was required to file a Draft Appeal Index within 28 days of filing a Notice of Appeal or within 28 days of the reasons for judgment that relate to the order under appeal being issued. The settled reasons for judgment were delivered on 14 January 2020. Thus, the Draft Appeal Index was due by 4.30 pm on 11 February 2020. Ms Casey filed her Amended Notice of Appeal on 22 January 2020, but failed to file the Draft Appeal Index by the due date.
Provision is also made in r 22.13(2)(b) of the Family Law Rules (2004) (“the Rules”) for the Draft Appeal Index to be filed at such other time as might be ordered. An extended time to file a Draft Appeal Index would need to be obtained before the appeal was deemed abandoned. No such order was made and the appeal was deemed abandoned by operation of r 22.13.
Background
The background facts relevant to this application are brief; they are set out in her Honour’s reasons for judgment.
On 22 August 2019, P left the family home, following which Ms Casey sought an order for her recovery.
The application was heard by the primary judge on 29 November 2019. Ms Casey was represented by counsel. The respondents did not participate but again it is far from clear that they were served.
Ms Casey says that Mr Sade is “significantly older” than P and her family are worried about her safety and Mr Sade’s motives [2].
The primary judge was not of the opinion that P lacks competence in a legal sense and; found there was no evidence to suggest that she does not have the mental capacity to make decisions for herself [3]. The point being, as to where and with whom she lives or does not live. Her Honour noted that a recovery order would require police to return P to Ms Casey and, on the evidence, it is unlikely that P would willingly participate [4]. Nothing would prevent her leaving the family again.
In dismissing the application, her Honour ultimately determined that P will shortly be of an age where such an application could not be made out [5]. In other words, it was recognised that the subject child would shortly achieve her majority and the authority that Ms Casey sought to exercise over her would dissipate.
Reinstatement
Rule 22.44 provides that a party may apply to reinstate an appeal taken to be abandoned under Chapter 22 of the Rules.
The principles relating to applications to reinstate an appeal are set out in Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra”), in particular, Gummow and Hayne JJ at [33]:
…[W]hen 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…
Discussion
Delay
As was mentioned earlier, the Notice of Appeal was filed in time but the Draft Appeal Index was not. The Draft Appeal Index was due by 4.30 pm on 11 February 2020. Ms Casey explained that she understood she had 28 days from when the settled reasons were given to file a Draft Appeal Index. Rule 22.13(2)(a)(ii) operates to this effect but also deems a judgment to be issued on the date of the certificate affixed to the judgment by the judge’s Associate. By reference to an email from the primary judge’s Associate, it was established that the reasons were not sent until 18 February 2020, some four weeks after the date of the Associate’s certificate. No doubt the delay in publishing the settled reasons was caused by other work but Ms Casey’s submission that she should not be disadvantaged by this should be accepted.
The effect of this is that Ms Casey has established a proper reason for her failure to file the Draft Appeal Index by 11 February 2020. The next question that must be answered is whether she has a satisfactory explanation for her failure to file a Draft Appeal Index within 28 days of 18 February 2020, namely by 17 March 2020. The simple answer is she does, because as soon as Ms Casey learned that the appeal was deemed abandoned, on 21 February 2020 she wrote to the Appeals Registry and sought that it be reinstated. Although it was not until 27 April 2020 that she presented an application capable of being filed, the point is that she tried to keep her appeal alive but nothing more could be done vis a vis the Draft Appeal Index.
Delay has been adequately explained.
Merits of the appeal
Ms Casey appeared without legal representation and has prepared the appeal documentation herself. She has done the best she could. However, I am tasked with determining whether this appeal should be allowed to proceed and one of the matters that must be addressed is the merit of the appeal. If the appeal has no merit, it would not appropriate to allow it to proceed.
Ms Casey asserts several grounds of appeal. Stated broadly, it is her contention that the primary judge made errors of fact in relation to P’s legal competency to make decisions for herself and; misunderstood the principles relevant to executing a recovery order.
I am not persuaded that the primary judge erred in the manner alleged. On a fair reading of the reasons, the primary judge was not persuaded that it was in the best interests of this 17 year old to send police to return her, against her will, to her aunt. Moreover, that having put P through that distress, that there was any basis upon which the court could be satisfied that she wouldn’t immediately leave again.
Ms Casey knows where her niece lives. In answer to my question about why she hasn’t been to see her and attempted to persuade her to return, she said that this would just result in a confrontation and possibly family violence. That sad answer bespeaks a strength of feeling in P that the primary judge well understood, and which mitigated against a recovery order being in P’s best interests or of any real utility. That strength of feeling was also apparent in Ms Casey’s opposition to the suggestion that if the appeal was allowed to proceed, P should be joined as a party and heard about whether a recovery order should issue.
Nothing emerges from her Honour’s reasons which would create any doubt as to the correctness of the decision. Furthermore, if the appeal was to be reinstated and the Full Court was persuaded that there had been error, one outcome might be that the order would be set aside and the proceedings remitted for rehearing perhaps with better evidence if there is any. By then, P will be 18 years of age, or nearly 18, at which point there would be no power to make a recovery order. It follows that not only is the appeal doomed to fail, there is no utility in it being reinstated. The lack of merit and utility in the appeal weighs heavily against reinstatement.
Prejudice
It is accepted that the effect of refusing Ms Casey’s application is that she will not be able to pursue her appeal. However the order under appeal is an interlocutory order and it is open to Ms Casey to file a fresh application based on better evidence. Ms Casey would now understand that if she does so, it is highly likely that P would be made a party to the proceedings and be heard in relation to it. However, lest it be misunderstood, this is not a recommendation to her to file a fresh application and Ms Casey would be well advised to seek assistance from a community agency to resolve her disagreement with her niece without the involvement of police.
Conclusion
The application for reinstatement will be refused.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 May 2020.
Associate:
Date: 20 May 2020
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