Chranley and Smart
[2010] FamCAFC 139
•12 July 2010
FAMILY COURT OF AUSTRALIA
| CHRANLEY & SMART | [2010] FamCAFC 139 |
| FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the appeal was deemed abandoned after the father’s failure to file a draft appeal index – long running proceedings – where no adequate reason was provided for the failure to comply – where there is little chance of a successful appeal – conduct of the father – consideration of the consequences for the parties – application dismissed. |
| Family Law Act 1975 (Cth) s 94(2D)(c) & s 94(2F) Family Law Rules 2004 (Cth) rr 22.13, 22.44 & former rule 22.57 |
| Bane & Hacker [2009] FamCAFC 110 Batey-Elton & Elton [2009] FamCAFC 101 Gallo v Dawson (1990) 93 ALR 479 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Mr Chranley |
| RESPONDENT: | Ms Smart |
| INDEPENDENT CHILDREN’S LAWYER: | Graeme Hemsley |
| FILE NUMBER: | ADC | 207 | of | 2008 |
| APPEAL NUMBER: | SA | 26 | of | 2010 |
| DATE DELIVERED: | 12 July 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 12 July 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 6 April 2010 |
| LOWER COURT MNC: | [2010] FamCA 300 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | In Person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Graeme Hemsley |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Graeme Hemsley |
Orders
The Application in an Appeal filed by the father on 3 June 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Chranley & Smart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICITON OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 26 of 2010
File Number: ADC 207 of 2008
| Mr Chranley |
Applicant
And
| Ms Smart |
Respondent
EX TEMPORE REASONS
The application before me today is an Application in an Appeal filed by the father on 3 June 2010, and I note that at this point the father leaves the courtroom. I proceed regardless. The father seeks orders, in effect, that Appeal SA 26 of 2010 be reinstated and he have leave to file a draft index to the appeal books in relation to that appeal. I note that the father has returned to the Court.
In support of the application there is an affidavit filed by the father. There are two paragraphs of that affidavit and they are as follows:
1.THE ORDERS OF JUSTICE DAWE IN RELATION TO ADC 207/2008 WERE HANDED DOWN ON THE 28/5/2010 IN THE ADELAIDE REGISTRY
2.I WAS UNABLE TO FILE A DRAFT INDEX WITHIN THE TIME FRAME BECAUSE OF THE ABOVE ORDERS OF JUSTICE DAWE
Unfortunately they do not give me any indication as to what the basis of the application is. I have attempted to clarify that with the father as I have attempted to clarify a number of things with him, but he has ignored my questions and has been abusive of me, this Court and the Independent Children’s Lawyer in this case, Mr Hemsley. He has continually referred to an affidavit that he filed some three years ago and the dismissal of proceedings at about that time as being a justification for his behaviour today.
In any event, I have listened patiently to whatever the father has had to say today and I have given him every opportunity to both clarify the issues that are before me, to respond to my questions and to make submissions in support of his application. There are some things that he has said which I can say go to the issues that I have to determine today and I will come to that in a moment.
What the father is looking to do is to reinstate an appeal against orders made by Dawe J on 6 April 2010. On that day Dawe J made orders and delivered two sets of reasons for judgment. One of the issues I attempted to clarify with was whether he was appealing against all orders made on that day or not. He failed to respond to that question and thus I proceed on the basis that he is looking to appeal against all of those orders.
What Dawe J had before her was, firstly, an application for final parenting orders contained in a response filed by the mother on 22 October 2009. The father had filed an application seeking final parental orders some time before that on 26 June 2009. However, on 5 January 2010 the father filed a Notice of Discontinuance, discontinuing his Initiating Application filed on 26 June 2009. Thus on that basis the matter was set down before Dawe J for an undefended hearing and the date of that hearing was 6 April 2010.
The other matters before Dawe J on 6 April 2010 were a number of Contravention and Contempt Applications filed by the father and her Honour had listed those for the purpose of giving directions for the hearing of those applications.
Now, despite the Notice of Discontinuance, it is apparent from her Honour’s reasons that the father appeared. It seems that he sought to present documents and make submissions in relation to the issue of the parenting orders. Dawe J, though, determined that she would proceed to hear the matter as an undefended hearing, and that, indeed, was one of the orders that her Honour made that day namely:
The Court will continue to hear the only outstanding application for final orders on an undefended basis being the response to the initiating application filed by the mother on 22 October 2009.
It is instructive to set out her Honour’s reasons for making that order as follows:
1.In relation to this matter, the father has been on notice that the matter is listed before me, on an undefended basis, concerning the final orders sought by the mother. Currently, there are no further applications before the Court by way of final orders, although the father, who appears unrepresented today, has shouted at the Court that he intends to file further application seeking final orders.
2.The matter is currently listed before me to hear the question of the final orders in relation to the child, [S], on an undefended basis today.
3.This is a superior Court of record, and is a Court which relies upon the documents which have been filed, and not the documents which the parties yell at the Court that they are going to file.
4.This application is a matter which concerns the welfare of the child, [S]. These current proceedings before the Court have been outstanding for some time. In fact, proceedings were first started before the Court many years ago, and it is only the current file which is currently before me, being proceedings which were started in January 2008, in the Federal Magistrates Court. The matter was subsequently transferred to the Family Court of Australia. The Court has heard several applications in relation to the matter, and has directed that the matter proceed on an undefended basis, because of the father’s discontinuance.
5.It is correct to say that there are a number of contraventions and contempt proceedings outstanding, and, in the usual course of matters, some contraventions and contempts would be dealt with before a conclusion of a trial in relation to final orders, particularly those concerning children. However, this is not a hearing in relation to defended proceedings, but a hearing in relation to the undefended application, by the mother, for final orders, which include orders that the time spent between the father and the child, [S], be at the desire and determination of the child.
6.Notwithstanding the authorities and the usual process of matters in relation to defended hearings, contempt and contravention proceedings, and notwithstanding the shouting of the response of the father before me, in Court, this morning, I am satisfied that one of the significant factors to be taken into account in this matter is what is in the best interests of the child, [S]. To that extent, I have given consideration to the Child and Parents’ Issues Assessment, which was conducted by the Family Consultant, Dr [A], in this matter, and which is the subject of a report to the Court of 16 December 2009.
7.Taking into account all of those matters, I therefore intend to proceed to hear the application for final orders by the mother, on an undefended basis this afternoon, with a view to thereafter listing the applications for contravention and contempt, which the father says are a number in excess of 110.
Her Honour then proceeded to hear that matter on an undefended basis, and at the end of the day her Honour reserved her decision but her Honour proceeded to make certain interim parenting orders pending delivery of her judgment.
Her Honour also, as I say, had before her a number of Contravention and Contempt Applications and her Honour ordered that those applications be listed for hearing commencing on 9 August 2010 for five days. That was the subject of the second set of orders made by her Honour on 6 April 2010.
Her Honour settled and published her ex tempore reasons for judgment on 22 April 2010, and according to the Court file they were forwarded to all the parties, including the father at his address for service at P. That had been his Notice of Address for Service for a considerable period of time in these proceedings, and, of course, copies of those reasons were also forwarded to the address for service of the mother, Ms Smart and also to Mr Hemsley.
The Family Law Rules provide for a draft appeal index to the appeal books to be filed no later than 28 days after the orders against which an appeal is sought to be brought are made, or 28 days after the reasons for judgment are published. Now, according to the calculations of the Regional Appeals Registrar, in this instance any party who had filed a Notice of Appeal against the orders made by her Honour was required to file a draft index to the appeal books, no later than 20 May 2010. That was conveyed to the parties in a letter sent out by the Regional Appeals Registrar on 20 April 2010. The father, being the only party who wished to appeal against the orders made by Dawe J, failed to file a draft index within the relevant time period and, as a result, pursuant to Rule 22.13(3) of the Family Law Rules 2004, the Notice of Appeal that he filed on 16 April 2010 was deemed to be abandoned.
Given that, s 94(2D)(c) of the Family Law Act 1975 allowed for the father to file an application seeking reinstatement of the appeal and that is what he has done. The problem, though, is that I have no idea from the affidavit filed by the father in support of that application, on what basis he says the appeal should be reinstated. In paragraph 1 of the affidavit he simply identifies that orders of Dawe J were handed down on 28 May 2010. Now, there were, indeed, orders handed down by Dawe J on 28 May 2010 and I have been informed by the Independent Children’s Lawyer today, that they were the final parenting orders made by Dawe J and her Honour, on that day, also delivered extensive reasons for judgment. However I cannot follow or understand the point that the father is attempting to make in paragraph 1. As an aside, certainly the orders of 28 May 2010 are relevant to this matter generally, given, as I said, that on 6 April 2010 her Honour reserved her judgment and made interim orders pending delivery of her judgment, and they are orders that I have assumed that the father wants to appeal against. However, the fact is that Dawe J has now made final orders and those final orders have overtaken the interim orders that her Honour made. Thus, prima facie any appeal against the interim orders would be fruitless.
There is a second paragraph of the affidavit in support of the application and, to repeat, it says:
I was unable to file a draft index within the timeframe, because of the above orders of Dawe J.
Now, the “above orders” can only refer to the orders of 28 May 2010, but as I say, the father has ignored my request for him to clarify the meaning of that paragraph and I can only speculate, but speculation does not provide any further answers, because, of course, those orders were made on 28 May 2010, yet the draft index had to be filed by 20 May 2010, eight days before.
The father has now interrupted, and he has finally made an attempt to respond to my earlier question. What he now says is that he was not present for that part of the hearing on 6 April 2010 when the interim orders were made. He says he was unaware of the interim orders until he received the orders of 28 May 2010. Now, I do not accept that explanation by the father, because I proceed on the basis that the father was provided, by the Court, with not only a copy of the orders made by Dawe J on 6 April 2010, which would include the interim orders, but also the reasons for judgment that I have already referred to.
I also observe that there is absolutely nothing in his affidavit which raised that as a reason why he failed to comply with the rule. Indeed, looking at the orders of 28 May 2010, there is nothing in those orders which refers to there being interim orders. In any event, to repeat, my position is that I do not accept what the father has attempted to put to me from the bar table, and I proceed on the basis that he has received and did receive the orders of 6 April 2010 and the reasons for judgment and the letter of the Regional Appeals Registrar of 20 April 2010. He clearly received the letter of the Appeals Registrar of 25 May 2010 which advised that the appeal was deemed abandoned and advising him that he should file an application for reinstatement, and there is no explanation from the father as to why he would have received that letter but not the previous letter, nor the orders or the reasons for judgment. The father has been before the Family Court of Australia (including the Full Court) and the Federal Magistrates Court, as he himself said, for eight years. If anybody who has ever appeared in these Courts is well aware of the procedures and the requirements and the timeframes, it is the father. I further add that, given the father walked out of her Honour’s courtroom before her Honour had made the orders, the onus was on the father to ascertain what orders, if any, were made by Dawe J after he left. Apparently, he did not do that, if his story is to be accepted, but as I say, I do not accept that he was unaware of the orders and the reasons for judgment in time for him to file a draft appeal index.
I mentioned earlier that there were some matters that fell from the father which are relevant to this issue. I have mentioned now one matter, because in his previous answers, if they could be termed as such, to my questions, amidst the abuse and the offensive language, he did indicate then that he did not get the relevant correspondence. He has repeated that. He also threw in - and I say that advisedly - that he did not file an appeal index for health reasons. Now, there is absolutely nothing in his affidavit in support of that submission and I reject it entirely. It is typical of the father to throw in matters that he thinks might assist him, regardless of the accuracy or otherwise of the statements.
The summary of all that is that there is no reason that the father has put before me that I accept as to why he failed to comply with the rule as to the filing of the draft appeal index.
I observe at this point that the father is making his application pursuant to s 94(2D)(c) of the Act. Relevantly, s 94(2F) provides that:
No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
The effect of that is that other than an application being accepted by the High Court for special leave, any determination that I make on the father’s application is not subject to an appeal to the Full Court.
Now, I referred in my earlier remarks to the relevant rule under which the appeal is deemed to be abandoned, namely Rule 22.13, and I will not repeat that. The next relevant rule is Rule 22.44, which provides, simply, that:
A party may apply to have an appeal taken to be abandoned under this Chapter reinstated.
Now, it has to be noted that that rule is the current rule in place of the former Rule 22.57 which dealt with reinstatement of appeals, and that rule provided a number of factors that the Court may consider in determining the application. It is useful to set out the former Rule 22.57 as follows:
22.57 Application for reinstatement of appeal
(1) A party may apply to have an appeal abandoned under subrule 22.56 (1) reinstated.
(2) In determining an application under subrule (1), the court may consider, among other things, the following:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been made promptly;
(d)whether the non‑compliance was intentional;
(e)whether there is a good reason for the non‑compliance;
(f)the extent to which the party has otherwise complied, in the case, with orders and legislative provisions;
(g)whether the non‑compliance was caused by the party or the party’s lawyer;
(h)the effect of non‑compliance on each other party;
(i)the effect that reinstating the appeal would have on each other party and on parties to other cases in the court;
(j)an order for costs, including costs on an indemnity basis;
(k)whether a party should be prevented from taking any further steps in the appeal until the costs are paid.
Now, with the current rule, there are no factors set out to provide guidance in considering such an application, but logically, and the authorities support this, the sorts of matters identified in the former Rule 22.57 are the sorts of matters which are relevant to this application and would and should be considered by the Court in dealing with any reinstatement application. But ultimately, it is a matter of discretion, and I refer to Bane & Hacker [2009] FamCAFC 110 at paragraph 25.
I now turn briefly to the authorities and, first, I refer to the High Court decision of Gallo v Dawson (1990) 93 ALR 479 and particularly the judgment of McHugh J at page 480. His Honour said this:
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 and Agency Co. of Australasia Ltd. (1978) VR 257, at p 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 p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. 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 p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 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 p 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.
Although that case was dealing with an extension of time to appeal it has been held in this Court on a number of occasions that the principles there set out equally apply to an application to reinstate an appeal (see Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101).
Now what McHugh J highlighted was that this is, of course, an exercise of discretion and that 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. And in order to determine whether the rules 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. His Honour went on and said, “it is always necessary to consider the prospects of the applicant succeeding in the appeal.” It is also necessary to bear in mind what his Honour termed, “‘the vested right [of the respondent] to retain the judgment’ unless the application is granted.”
The fundamental issue is whether the reinstatement of the appeal is necessary to enable the Court to do justice between the parties. And in looking at the justice of the case there are a number of factors that have to be taken into account. As McHugh J said, for example, “the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties, the question of delay and the question of prejudice” all come into the mix in terms of how this Court is to decide where the justice of the case might lie.
Now, in terms of what the respondent mother says, she says that the appeal should not be reinstated. She makes the point, which I agree with, that the father has been before this Court long enough to know how this Court, the Full Court of the Family Court and the Federal Magistrates Court operate, and the time frames that apply. And, of course, undoubtedly, if the appeal is reinstated and allowed to proceed, at least, initially, there will be prejudice to the respondent. She has the benefit of the orders that the learned Judge has made and that is not something to be overlooked. There is also the issue of the finalisation of these proceedings being further delayed in the event that the appeal is reinstated.
What troubles me about all this is what impact this will have on the applicant. As I have said already, if he is seeking to appeal against the interim orders, then given final orders have now been made such an appeal would be fruitless. It seems to me and doing the best I can without any assistance from the father apart from abuse and offensive language and having looked at her Honour’s reasons for judgment, what is left for the father to complain about is that her Honour proceeded to hear the application for final orders as an undefended hearing and then, ultimately, on 28 May 2010 made those final orders. And, in doing so, she only proceeded on the basis of the material that was before her on that day, and it seems did not permit the applicant to present further material. Now, that is not a criticism of her Honour, but a statement or fact and, indeed, as is obvious from her Honour’s reasons for judgment, her Honour determined to proceed on that basis because of the history of the matter to that point, the fact that the father had discontinued his application and the matter was listed for an undefended hearing.
The other issue or the only other issue, it seems to me, that the father can complain about is the listing of the contravention and contempt applications. However, I am still not entirely sure what he is saying about that. He says that there are a number of applications, and a figure of 110 has been bandied about. I have not checked the file to confirm that, but assume that is correct, what he then seems to be complaining about is that Dawe J has indicated that those applications will be heard in five days and no more. Now, I cannot find anywhere in her Honour’s reasons for judgments where she has said that. Her Honour certainly set down the applications to be heard over five days, but nowhere in her Honour’s reasons for judgment has her Honour said that five days is all that is being allocated and no more.
As the father well knows and, unfortunately, the mother does as well, if her Honour is not able to complete the hearing in five days then her Honour will consider providing further time to complete the matter. Now, of course, that is not something that her Honour has included in her reasons for judgment and advisedly so. Thus it seems to me that the father is reading far too much into the fact that his applications have been listed for five days.
Thus doing the best I can, again, it seems to me that the only complaint that has any legitimacy is that her Honour determined to proceed to hear the parenting dispute on an undefended basis.
Turning to the Notice of Appeal, the grounds of appeal are as follows:
1. JUSTICE DAWE ERRED IN LAW.
2. JUSTICE DAWE ASKED THE RESPONDENT MOTHER IN COURT ON THAT DAY IF SHE HAD AN EXCUSE TO OTHER APPLICATIONS OF CONTEMPTS AND CONTRAVENTIONS FILED FROM SEPTEMBER 2009, BEING OVER 100 APPLICATIONS.
3. JUSTICE DAWE ACCEPTED THE MOTHER’S RESPONSE TO HER QUESTION IN COURT ON THAT DAY OF YES SHE HAD A GOOD EXCUSE FOR THE CONTEMPTS AND CONTRAVENTIONS AND THEN JUSTICE DAWE CONTINUED WITH THE HEARING.
4. JUSTICE DAWE TOOK IT UPON HERSELF TO CHANGE THE RESPONDENT MOTHER’S APPLICATION IN A CASE TO AN APPLICATION FOR FINAL ORDERS.
5. JUSTICE DAWE REFUSED TO ALLOW ME TO FILE APPLICATIONS AND A RESPONSE TO THE MOTHER’S APPLICATION IN THE CASE ON THAT DAY.
Now, again, doing the best I can, grounds 2, 3 and 4 are unintelligible in the context of these proceedings. Further ground 1 does not tell anyone how her Honour is said to have erred, and ground 5 is what I have indicated seems to be the only remaining complaint of the father.
Now, it is relevant for me to look at the prospects of success of the appeal if it is reinstated. Having read her Honour’s reasons for judgment, having read the father’s material and having heard and tried to listen carefully to what the father has said to me today amongst the abuse and offensive language, it seems to me that there is no ground of appeal that the father wishes to promote which has any realistic chance of success. Now, of course, I cannot be definitive about that, and I am putting that view forward on the basis, as I say, of reading the documents. I have to allow for the possibility that an appeal may be successful, but concentrating on the grounds of the appeal which the father has promoted, as I say, my view is that there is little chance of success.
Thus pausing there, what I am presented with here is a matter which has a long and unfortunate history before the Family Court of Australia, the Federal Magistrate’s Court of Australia and the Full Court of the Family Court of Australia. Her Honour has brought the parenting proceedings to a conclusion by making final parenting orders. It was thought that they were brought to a conclusion by consent orders made in December 2007, but the father chose to bring a further application in 2009, and Ms Smart responded to that. The father then chose to discontinue that application, and her Honour listed the Response for an undefended hearing and proceeded to finalise the matter on that basis.
The father has sought to appeal. As I have said, I have attempted to identify his complaint and, as I say, it seems to me his complaint can only come down to one thing; that is, that her Honour proceeded to hear the matter on an undefended basis. To repeat though, in my view there is little chance of success of that ground of appeal.
To return to the relevant factors identified by McHugh J, there is the conduct of the parties. In that regard both before Dawe J and before me today the father has persisted in being abusive and offensive, and refusing to answer questions and clarify his own application.
With the nature of the litigation, it involves parenting orders for a child who is now aged 13 years and these proceedings have been going on for most of that young child’s life.
In relation to the consequence for the parties, I have indicated what the prejudice to the mother is, and the obvious prejudice to the father is that he will not be able to pursue his appeal, or this appeal.
Taking all these factors into account, in my view the justice of the case requires that the application be dismissed.
Therefore the order that I make is that the Application in an Appeal filed by the father on 3 June 2010 be dismissed.
I certify that the preceding 42 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 12 July 2010.
Associate
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