COLLINS & RICARDO
[2015] FamCAFC 48
•27 March 2015
FAMILY COURT OF AUSTRALIA
| COLLINS & RICARDO | [2015] FamCAFC 48 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where the father is involved in multiple ongoing proceedings – Where the father claims he did not receive instructions from the Appeals Registry in sufficient time to lodge his appeal – Where the father claims he was occupied prosecuting other matters – Whether the trial judge erred in dismissing the father’s application for interim parenting orders – Application dismissed. FAMILY LAW – APPEAL – Application to reinstate abandoned appeal – Where the father is involved in multiple ongoing proceedings – Where the father claims he did not receive instructions from the Appeals Registry in sufficient time to comply with the Family Court Rules 2004 (Cth) – Where the father is an experienced litigant – Application dismissed. |
| Family Law Act 1975 (Cth) Family Court Rules 2004 (Cth) r 22.13 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Mr Collins |
| RESPONDENT: | Ms Ricardo |
| FILE NUMBER: | SYC | 4959 | of | 2009 |
| APPEAL NUMBERS: | EA | 6 | of | 2015 |
| EA | 18 | of | 2015 |
| DATE DELIVERED: | 27 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 24 March 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 19 December 2014 |
| 15 January 2015 |
| LOWER COURT MNC: | [2014] FamCA 1155 |
| [2015] FamCA 7 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person attending by telephone link |
Orders
Application for reinstatement of appeal EA 6 of 2015 against order of Loughnan J made on 19 December 2014 be dismissed.
Application for extension of time to appeal against orders of Stevenson J of
15 January 2015 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 6 of 2015
EA 18 of 2015
File Number: SYC 4959 of 2009
| Mr Collins |
Applicant
and
| Ms Ricardo |
Respondent
REASONS FOR JUDGMENT
Mr Collins (“the father”) brings two applications in relation to two appeals. The first is an application filed on 19 February 2015 seeking to reinstate an appeal, EA 6 of 2015, against orders made by Loughnan J and which was deemed to have been abandoned because of the father’s failure to file a draft index to the appeal book within the prescribed time.
The second application, also filed on 19 February 2015, seeks an extension of time in which to bring an appeal against orders made by Stevenson J on
15 January 2015 in which she dismissed the father’s application for interim parenting orders.
Orders of Loughnan J
This application relates to the father’s appeal against orders made by
Loughnan J on 19 December 2014 that relate to the father’s contravention application against Ms Ricardo (“the mother”) in relation to parenting orders made concerning their child, S (“the child”), who is aged six. After several days of hearing, on 12 January 2012, Watts J made final parenting orders that provided for the child to live with the mother and provided for the child to spend supervised time with the father.
The father appealed those orders and that appeal has yet to be determined.
In the hearing before Loughnan J, the father asserted some 19 instances in which he said the mother had contravened the orders made on
12 January 2012. Of those asserted contraventions, seven were dismissed by
his Honour, the mother was required to answer the allegations in respect of 12 others and two were withdrawn by the father.
His Honour found that on three occasions the mother, without reasonable excuse, had contravened the orders of 12 January 2012 and he stood over those matters for consideration of what orders should be made in consequence of the findings. His Honour otherwise dismissed the father’s contravention application filed 20 March 2013.
On 14 January 2015 the father appealed his Honour’s orders. The appeal having been filed, on 15 January 2015 the Appeal Registrar wrote to the father advising him that the draft appeal index had to be filed by 11 February 2015. The father did not file the draft appeal index and, as a result his appeal was deemed to have been abandoned. He was notified of that fact by letter from the Appeal Registrar on 12 February 2015.
Rule 22.13 of the Family Court Rules 2004 (Cth) (“the Rules”) provides that the appellant must file a draft index to the appeal book within 28 days of filing the Notice of Appeal and failure to do so will result in the appeal being taken to be abandoned.
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. Although that case dealt with an extension of time to appeal, the principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88).
The central principle is that such applications ought be allowed where to do otherwise may cause a substantial injustice.
The order for reinstatement is not automatic but involves the exercise of discretion. The discretion is given for the sole purpose of enabling the court to do justice between the parties. In determining whether strict application of 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.
Merit of the appeal
As part of a consideration of the application, it is necessary to consider the merits of the proposed appeal to determine whether the making of the order for reinstatement would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. 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”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the court on the application.
Trial judge’s reasons
His Honour said, after noting that the father’s application contained
19 allegations of contravention against the mother:
18. … The wording of the allegations to be put to the mother was settled with [the father]. In relation to some of the allegations, in my view the application did not support a competent allegation. As to those allegations, the application was dismissed.
It seems that although his Honour delivered reasons for those findings, the father sought further reasons, which his Honour provided. His Honour first set out the legal framework by which asserted contraventions are considered [20] and noted that as the possible penalties to be imposed on a person found to have contravened an order without reasonable excuse can include imprisonment and fines, the rules of evidence are applied and the applicant bears the onus of proving the contravention.
The mother made certain concessions in the matter which his Honour recorded in the reasons at [49].
As to the process adopted before him, his Honour indicated that the father and his present partner had given evidence and been cross-examined. His Honour observed that rather than using cross-examination to resolve relevant factual disputes:
54. … much if not all of the focus of the father’s cross-examination was to discredit the mother as a witness. Indeed, even before the conclusion of submissions, the father sought that the mother be dealt with for perjury and later, that her testimony be referred to the Director of Public Prosecutions for consideration of perjury charges.
His Honour continued and said that the issues ventilated in cross-examination were “largely irrelevant or peripheral”.
The judge then considered and made findings about so many of the contravention allegations as remained before him. Of those, he found that in some cases, the facts did not support a finding on the balance of probabilities that the mother breached the order and, having regard to the onus of proof being on the father, dismissed the charge (allegations 1, 8, 11, 16, 17,18, and 19).
His Honour found that the mother had, without reasonable excuse, contravened orders made on 12 January 2012 in that she failed to advise the father of her address, failed to bring the child to a contact centre on 6 October 2012 and failed to bring the child to a contact centre on 7 October 2012.
The proposed grounds of appeal have been drawn by the father and are not altogether clear but it seems that he contends that his Honour erred in not finding certain of the asserted contraventions proved. The grounds assert that the orders, the subject of the contravention were “very clear” and in effect assert the facts on which they were made and contend error in his Honour not accepting that the contravention was made out. The grounds do not identify any error in his Honour’s order but are a restatement of the father’s position before his Honour.
Reason for default
The father swore an affidavit in support of the application on 16 February 2015 and argued that he had not received the letter of 15 January 2015 in which his attention was drawn to the necessity to file a draft appeal index by
11 February 2015 and thus fell into default.
He said:
5. I live in a rural location mail usually takes 5-7 days to receive. Mail has gone lost in the past and sent to other addresses. 112 [YL] Rd often gets our mail instead of ourselves at 1012 [YL] Rd. …
He said that he had asked Loughnan J to order that he receive all notifications from the court by email.
These difficulties were amplified in the affidavit of Ms Collins, the father’s partner, sworn on 16 February 2015 in support of the application to extend time in which to appeal Justice Stevenson’s orders. She said:
2. During the last 3 years, email and internet access has been very slow and sporadic. The local Testra (sic) exchange is overloaded and congested. The line from the exchange suffers from periodic lightning strikes. Outages can be from days to months. Telstra have been continuoulsy (sic) rung and have compensated accordingly.
The father further said that he had in the past received letters from the Appeals Registry although not that of the Registrar of 15 January 2015 nor that of
12 February 2015.
Although the father contends that such is the difficulty he experiences in receiving mail, he has “always asked for email copies as well as mail copies”, I observe that on the Notice of Appeal, the father has noted his residential address, albeit his email address is also on the document. There is no document or other record produced by the father to demonstrate that when he lodged the Notice of Appeal he requested that any information be sent to him by email.
In oral argument, the father agreed that he had not specifically requested the Appeals Registry to communicate with him by email. However, he added that, in any event, email communication with him is as problematic as is his receipt of mail. He said that he could not afford to take a post office box at the local post office.
That there was a difficulty in receiving mail and email are matters of which the father is well aware. It is, in my view, the obligation of the father to take such steps as is necessary to ensure that there can be proper communication with the court to ensure he complies with the rules provided for the conduct of appeals.
It is certainly not for the court to make those arrangements of its own volition without a request.
The father is no stranger to the appeal process. Indeed, apart from the two applications being considered in this hearing, the father has two appeals presently before the Court and a third has been finalised. In those circumstances he would well have anticipated having to comply with the relevant rules and file a draft appeal index without being told by the Registrar.
While the father agreed that he had filed such documents in earlier appeals, he pointed to matters which he said were pressing on him at the time and, as a result of which, he was not unreasonable in waiting for a letter from the Appeals Registrar to tell him when to file a draft appeal index.
In his affidavit, again in support of the extension of time in which to appeal the orders of Stevenson J, the father said:
4. I was under Appeals court directions to compile and serve Appeals Books by the 30/1/15 in another matter, which was completed on the due date.
5. I then needed to do an Application in a case and extensive affidavit in support in regards to the Contravention orders currently before Justice Loughnan.
6. I was then required to do a “Notice of Motion and supporting affidavit in the Supreme Court in unrelated Child custody hearings
7. During this time my wife became sick. She is 8 months pregnant and miscarried 18 months ago. This meant attending medical appointments with my wife. My wife is aged 42.
The thrust of this part of the explanation for the default is that the father has so many pieces of litigation on foot that he could not comply with the requirements in each.
I am unpersuaded that the father’s asserted difficulties in receiving mail provide a reasonable explanation for failing to ensure he prosecuted his appeal in accordance with the rules. Nor am I persuaded that because the father choses to litigate in a number of fora and on a number of fronts in the Family Court that he should be relieved from proper compliance with the rules of court.
Prejudice
In argument on the application the father contended that there was prejudice to him if the appeal is not reinstated because he said it was important that all of the asserted five contraventions be heard and, because he said each would succeed, the consequential orders that flowed from the successful contraventions would be important in ensuring that the mother complied with the orders.
Given that his Honour has already found three contraventions proved and the matter is awaiting a hearing as to penalty, it is difficult to understand why eight such findings would ensure compliance, where three would not.
As his Honour observed in his reasons, the technicalities and proof of the matters asserted are strictly observed because the court can impose quite draconian penalties.
I do not regard the matters put by the father as being persuasive of any prejudice accruing to him if the appeal is not reinstated.
There is, of course, prejudice of a significant order to the mother if the appeal is reinstated, she then being at risk of there being further findings against her, and, per force, a consideration of further penalty.
Principally, it is important to understand that contravention applications are not proceedings inter partes and it is crucial that the prosecution of asserted contraventions does not become an instrument of oppression between the parties. There is much in the father’s oral submissions and in the asserted grounds of appeal that lend force to this consideration.
In any event, although the test of merit of an appeal is a low one, I am unpersuaded that there is any merit in the father’s appeal against his Honour’s dismissing some of the asserted contraventions and on this basis, I would refuse the order for reinstatement.
In the High Court decision of Jackamarra v Krakouer (1998) 195 CLR 516, Gummow and Hayne JJ said 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.
…
In this case, all other things are not equal. First, I am not persuaded that the father has demonstrated an arguable case for appeal. Secondly, the difficulties for the father in receiving communications by mail were well known to him as were the processes to be followed in prosecuting his appeal. Thirdly, that he chooses to conduct multiple pieces of litigation in a number of fora is neither answer to nor excuse for failing to comply with the statutory requirements imposed on him as an appellant. It is in my view utterly unpersuasive of him to call in his aid those difficulties when he could have well anticipated having to file a draft Notice of Appeal and ought to have made proper arrangements to ensure he received communications from the court.
Thus, although this appeal was filed regularly and in accordance with the time limits prescribed by the rules, the application should be dismissed both because the father has not sufficiently explained why he failed to comply with the rules governing appeals and because there is no merit in the proposed appeal.
Appeal against orders of Stevenson J
On 15 January 2015 after an hearing conducted ex parte the mother on
15 December 2015, her Honour dismissed the father’s interim application that sought to vary the parenting orders made on 12 January 2012 to provide that the child spend unsupervised time with him at his residence on the South Coast of New South Wales and in Cairns.
Her Honour observed that when the orders were made in 2012 they provided for the child to spend time with the father at contact centres in City 1, Western Australia and Wollongong, New South Wales. She noted that in October 2012 the mother moved from Western Australia to Cairns, Queensland and that the father had travelled to Western Australia and Cairns to see the child.
Her Honour, after referring to the various medical reports tendered by the father about his psychological and other functioning said:
11. It is to the father’s credit that he has subjected himself to these various assessments, which resulted generally in favourable reports. The reality is, however, that this material does not assist me in assessing the likely effect upon the child [S] of the changes to her parenting arrangements which are now sought by the father. The evidence placed before me by the father does not enable me to determine what orders are in [S’s] best interests, having regard to the considerations set out in Part VII of the Family Law Act…
Her Honour concluded by noting that the father had at that time an outstanding appeal against the 12 January 2012 orders and an extant application for fresh parenting orders, and said that she was not prepared to make orders in the absence of evidence which addresses the considerations set out in Part VII of the Act. Thus her Honour dismissed the father’s application.
On 19 February 2015 the father filed an application seeking an extension of time in which to appeal against her Honour’s order of 15 January 2015.
In support of the application, the father again relies on the difficulties he experiences in receiving mail. He contended that he did not receive her Honour’s orders until 23 January 2015 and could not file a Notice of Appeal against those orders in the prescribed time because he was attending to other requirements necessary for the prosecution of other matters, one being conducted in another court.
The proposed Notice of Appeal contains sixteen grounds of appeal, the first nine of which amount to statements of the father’s position in relation to the parenting proceedings generally and do not raise any assertion of error in her Honour’s orders. Ground ten seems to be a challenge to the weight her Honour placed on the documents tendered by the father in support of his application for interim orders. Grounds eleven to sixteen are, as with grounds one to nine merely statements of the father’s position.
As reference to the principles quoted above demonstrates, extension of time in which to appeal will not be granted if to do so would otherwise be futile, that is that there is no prospect of success on appeal.
The issue before her Honour was narrow indeed. Her Honour’s reasons succinctly demonstrate she could not make the orders the father sought on limited evidence and without a proper hearing. Her Honour’s reasoning was impeccable, the propounded grounds of appeal would enjoy no prospect of success and I will refuse the application.
I certify that the preceding fifty four (54) paragraphs are a true copy of the
reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
27 March 2015.
Associate:
Date: 27 March 2015
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