Clancy & Alcott
[2021] FamCAFC 149
•6 August 2021
FAMILY COURT OF AUSTRALIA
Clancy & Alcott [2021] FamCAFC 149
Appeal from: Clancy & Alcott [2021] FamCA 380 Appeal number(s): EAA 69 of 2021 File number(s): SYC 4960 of 2014 Judgment of: ALDRIDGE J Date of judgment: 6 August 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for reinstatement of an appeal and an extension of time to file a draft appeal index – Where there is no reasonable explanation for the delay – Where the appeal has no merit – Application dismissed – Applicant to pay respondent’s costs of the application in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 70NBA Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Xuarez & Vitela(No. 2) [2017] FamCAFC 236
Division: Appeal Division Number of paragraphs: 27 Date of hearing: 6 August 2021 Place: Sydney The Applicant: Self-represented litigant Counsel for the Respondent: Ms Tabbernor Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
EAA 69 of 2021
SYC 4960 of 2014APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR CLANCY
Applicant
AND: MS ALCOTT
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
6 AUGUST 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 28 July 2021 is dismissed.
2.The appellant is to pay the respondent’s costs of the application fixed in the sum of $2,700.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clancy & Alcott has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ADLRIDGE J:
INTRODUCTION
By an Application in an Appeal filed on 28 July 2021, Mr Clancy (“the applicant”) seeks reinstatement of his appeal against orders made by a judge of the Family Court of Australia on 31 May 2020.
The applicant and Ms Alcott (“the respondent”) have a child who was born in 2013 (“the child”).
On 14 September 2020, a suite of parenting orders was made by consent. The child was to live with the respondent, who was to have sole parental responsibility for her. The applicant was to spend time with the child which was to be supervised by B Contact Centre until 26 February 2022. To that end, both parents were required by the orders to “arrange an appointment with the management of B Contact Centre for assessment for suitability of supervised time” (Order 4(a)).
The respondent contacted B Contact Centre within the seven days and formed the view, according to the applicant’s evidence, that the service was not able to support all of the child’s special needs. She then located other similar commercial supervision agencies which she said could cater to the child needs and completed the uptake formalities required for them.
On 29 December 2020, the applicant filed a contravention application alleging that the respondent had breached the consent orders because she “did not take part in the intake process of [B Contact Centre]”. The primary judge dismissed the contravention application after finding that the applicant had not established a prima facie case of breach. This was because the applicant’s own evidence had established that the respondent did arrange an appointment with the management of B Contact Centre for assessment of suitability of supervised time (at [4]).
In addition, his Honour adjourned the matter to 28 June 2021 “to consider [e]ach parent’s proposal for an order varying the [applicant’s] time with the child” pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”) and that the application pursuant to s 70NBA of the Act “proceed by way of minutes of order, to be exchanged by the parties” and be provided to the primary judge’s chambers.
The applicant filed a Notice of Appeal on 28 June 2021 against each of these orders. The appeal was deemed to be abandoned on 26 July 2021.
THE APPLICATION IN AN APPEAL
The present application was filed on 28 July 2021 and is opposed by the respondent.
The principles to be applied were stated by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480-481 as follows:
…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 aim is to do justice between the parties. It is well established that an appellant should not likely lose the benefit of a regularly commenced appeal because of a procedural fault. If however, the appeal is so devoid of merit so as to render the appeal futile, it is not in the interests of justice to let it go forward (Jackamarra v Krakouer (1998) 195 CLR 516).
The applicant acted promptly in bringing this application and the procedural default, which was a failure to draft an appeal index in time, is of no great moment. However, the applicant has not yet produced a draft appeal index or explained why he did not comply with the obligation to file it in time.
Having regard to Order 3 made by the primary judge, which adjourned the proceedings to 28 June 2021, the applicant agrees that any appeal against that order is futile because that day has come and gone.
Order 4 is a procedural order which requires the parties to provide short minutes of order. It is not a decree, therefore, which can be the subject of an appeal (Xuarez & Vitela(No. 2) [2017] FamCAFC 236).
In any event, if B Contact Centre cannot be the contact supervisor as provided by the orders, it seems obvious that the issue as to who is to provide the supervision is something that could properly be revisited consequent upon the bringing of a contravention successful or unsuccessful because of the application of 70NBA of the Act. The direction, therefore, of his Honour is entirely unremarkable.
Indeed, at the hearing to be held on 18 August 2021, the applicant will himself contend for a variation of the orders particularly in relation to the time the child is to spend with him. The applicant said although he would prefer B Contact Centre to be the supervisor, he would accept E Contact Centre as the supervisor. This is a further reason why the appeal against Order 4 is futile because both parties agree that there should be some reconsideration of the orders.
It follows, therefore, that Grounds 4 and 5 of the appeal, which directly relate to those orders, cannot succeed. The remaining grounds are:
1. His Honour’s decision of 31 May was plainly unreasonable and unjust.
2.His Honour erred by failing to provide adequate reasons for the change of orders made by him.
3.His [Honour] erred in Order 1 of his orders dated 31 May 2020 in finding the [respondent] had arranged an appointment pursuant to Order 4a) of the September 2020 orders.
…
6.His Honour erred when he said the [respondent] complied with order 4a) of the 2020 orders.
As to Ground 2, reasons need not be lengthy to be adequate. They must be sufficient to explain why the decision was made and how the parties’ contentions were resolved, see Bennett and Bennett (1991) FLC 92-191 and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110.
His Honour’s reasons make it plain that he considered that the contact made by the respondent with B Contact Centre was in fact in compliance with the order. Since we know why his Honour made the order, the reasons are adequate and this ground cannot succeed.
Turning then to the submission that the decision was plainly unjust or that his Honour was in error in finding that the respondent had arranged an appointment with B Contact Centre in compliance with Order 4(a) of the 14 September 2020 orders, the applicant accepts that his evidence demonstrated that the respondent did in fact contact B Contact Centre within the time provided and discussed suitability.
His complaint, however, is that he regards the respondent as being obliged physically to attend the service. He further contends that the reason that B Contact Centre was found not to be suitable was because of the respondent’s decision herself to reject the service. He therefore contends that not only did the respondent not comply with the order by not physically attending upon B Contact Centre but that it was not up to her to decide whether the service was suitable or not. However, that is not the contravention that was brought if indeed they are the facts. The contravention that was brought was quite limited and simply said that the breach occurred as a result of the respondent failing to contact the supervisor to assess the management of the service and suitability. As I have said, the applicant accepts that she did so.
It follows, therefore, that Grounds 1, 3, and 6 also cannot be made out and any appeal would be futile.
It would therefore not be in the interests of justice to permit this appeal to go forward. That follows, the application is dismissed.
COSTS
The respondent has sought an order that the applicant pay her costs in this application fixed in the sum of $2,700 on the basis that the application was wholly unsuccessful.
The applicant, in turn, asked me to take into account his financial circumstances. Other than for saying he had $3,000 in the bank and that he earned $1,400 per fortnight, from which he had to pay the costs for whatever supervisor is currently providing supervision for his time with the child, he did not give me any other details.
It is, therefore, difficult to take into account his financial position but, in any event, it is also well established that a lack of means is not necessarily determinative of a cost application.
Having regard to the matters in issue and the strength of the appeal and the matters that the applicant has put before me, I consider that the circumstances exist to justify the making of a costs order.
The appellant is to pay the respondent’s cost of this application fixed in the sum of $2,700.
I certify that the preceding twenty-seven (27) numbered paragraphs is a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 10 August 2021
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