CHARRING & BUNT
[2015] FamCAFC 149
•28 July 2015
FAMILY COURT OF AUSTRALIA
| CHARRING & BUNT | [2015] FamCAFC 149 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where the applicant adequately explained the failure to file the Notice of Appeal within time – Where it is appropriate to give greater weight to the lack of merit in the proposed appeal – Where the proposed appeal is against orders made by consent – Application dismissed. |
| Family Law Rules 2004 (Cth): r 22.03 |
| Allan and Ors & Allan and Ors (2014) FLC 93-606 Gallo v Dawson (1990) 93 ALR 479 Gilbert v Estate of Gilbert (1990) FLC 92-125 |
| APPLICANT: | Ms Charring |
| RESPONDENT: | Mr Bunt |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
| FILE NUMBER: | CAC | 180 | of | 2012 |
| APPEAL NUMBER: | EA | 95 | of | 2015 |
| DATE DELIVERED: | 28 July 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 22 July 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS MADE: | 7 May 2015 |
REPRESENTATION
| FOR THE APPLICANT: | Ms Charring in Person (by phone) |
| FOR THE RESPONDENT: | Mr Bunt in Person (by video link with Canberra) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Smithies of Legal Aid ACT (by video link with Canberra) |
Orders
The Application in an Appeal filed 22 June 2015 be dismissed.
The Response to an Application in an Appeal filed 13 July 2015 be dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Charring & Bunt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 95 of 2015
File Number: CAC 180 of 2012
| Ms Charring |
Applicant
And
| Mr Bunt |
Respondent
REASONS FOR JUDGMENT
Introduction
By application in an appeal filed 22 June 2015 Ms Charring (“the mother”) seeks an extension of time to file a Notice of Appeal against final parenting orders made by Judge Brewster on 7 May 2015. With the exception of an order that the mother have sole parental responsibility for the parties’ child, the orders of 7 May 2015 were made with the consent of the parties and an Independent Children’s Lawyer (“ICL”) appointed to represent the child’s interests. In essence, the gravamen of the consent orders was to continue an arrangement whereby the child lived with the mother and for the child to spend time with the father unsupervised.
The child’s father is Mr Bunt (“the father”), who is the respondent in this application. He opposes the application for an extension of time. So does the ICL.
The applicable rules and principles
Chapter 22 of the Family Law Rules 2004 (Cth) (“the rules”) deals with appeals.
Pursuant to r 22.03 of the rules, a Notice of Appeal must be filed within 28 days after the date the order appealed from was made.
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. The discretion to extend time 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 leave. However, the overarching principle is to ensure that injustice is not visited upon either of the parties.
Delay
The last day the mother had to file a Notice of Appeal as of right was 4 June 2015, being 28 days after his Honour made the orders which would be the subject of challenge if the appeal proceeded.
In the mother’s affidavit filed on 22 June 2015 she says she received his Honour’s orders in the post on 11 June 2015. Self-evidently by then her time to appeal as of right had lapsed.
Ordinarily the failure to lodge an appeal within 28 days of when the orders were pronounced in court and to wait until after they issued, would not provide an adequate explanation for the failure to lodge an appeal in time. However, there are a number of unusual aspects to the manner in which his Honour made the orders which makes it reasonable to adopt a more benign approach to the question of delay.
First, his Honour’s pronouncement of the orders was not so clear that an unrepresented litigant would necessarily appreciate they had been made.
Secondly, the trial judge indicated he might recast the wording used in the consent orders to reflect his preferred mode of drafting. To that end the trial judge requested that the ICL provide the consent orders in electronic form in the event he made the “cosmetic changes” alluded to. This happened and no doubt is the reason why the engrossed orders did not issue until about 11 June 2015.
Thirdly and although it is conceivable that the orders were made later than 7 May 2015, there has been no application for his Honour to amend the record and the parties and ICL agreed this application should be decided on the basis the orders were made on the date stated.
The mother attempted to file a Notice of Appeal on 18 June 2015 and her application for an extension of time was filed on 22 June 2015. In light of the confusion about the manner in which the orders were made, the mother has provided a reasonable explanation for her delay.
Merits of the Appeal
The mother’s draft Notice of Appeal sets out the grounds of appeal she would pursue. She appears to assert bias on the part of the ICL insofar as the ICL allegedly failed to read and tender certain subpoenaed documents and allegedly made false statements to the court with respect to those documents. The remainder of the mother’s grounds relate to the father’s alleged failure to comply with orders regarding his attendance upon a psychologist and the possibility that the Department of Community Services would seek to have a Magellan Report ordered.
The fact that an order is made by consent does not make the order any different to an order made after a hearing. The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties. Therefore, save for an important qualification, an order made by consent may be the subject of an appeal in the same way as any other order (Allan and Ors & Allan and Ors (2014) FLC 93-606 at 79,507).
That “important qualification” is that the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party’s right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence or the absence of jurisdiction (Gilbert v Estate of Gilbert (1990) FLC 92-125 at 77-839).
Although the grounds of appeal have the flavour of vitiating grounds, the complaint about the ICL’s approach to the hearing could not establish a basis for appellate intervention. Simply put, the ICL was entitled to form a view about the outcome which would advance the best interests of the child and merely because the approach adopted by the ICL differed to that taken by the mother could not amount to error. Without more, nor could the fact that the parties chose to enter into consent orders before they inspected all the documents produced under subpoena. That was a forensic decision which could not now impugn the orders on appeal.
If it is the case that the Department of Community Services has initiated a child protection investigation and informed the mother the Court should request a Magellan report, that issue should be addressed at first instance and does not establish a basis for appellate intervention. Lest it be misunderstood, it is not suggested that the reported steps attributed to the Department of Community Services in and of themselves establishes a basis to change these recently made consent orders.
Conclusion
It follows, that notwithstanding the mother has explained her failure to file a Notice of Appeal within time to the Court’s satisfaction, it is appropriate to give greater weight to the lack of merit in the proposed appeal. The mother’s application for an extension of time to appeal will accordingly be dismissed.
The father and ICL do not apply for costs and the parties will, therefore, each carry their own costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 28 July 2015.
Associate:
Date: 28 July 2015
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