Cresswell & Conroy
[2023] FedCFamC1A 91
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cresswell & Conroy [2023] FedCFamC1A 91
Appeal from: Cresswell & Conroy [2023] FedCFamC2F 274 Appeal number(s): NAA 92 of 2023 File number(s): PAC 4677 of 2016 Judgment of: SCHONELL J Date of judgment: 7 June 2023 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Reinstatement – Where the appeal was deemed abandoned due to a failure to file the draft appeal index in time – Where the appellant’s solicitor filed an affidavit stating that he inadvertently mistook the date for filing – Where the need for reinstatement is through no fault of the appellant – Where the Notice of Appeal needs amendment and it cannot be said that it is without merit – Where there is more substantial prejudice to the appellant if the appeal is not reinstated – Appeal reinstated – Appellant to file draft appeal index with 72 hours. Legislation: Family Law Act 1975 (Cth) s 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.14, 13.44
Cases cited: Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Traver and Boyce [2021] FamCAFC 44
Number of paragraphs: 15 Date of hearing: 7 June 2023 Place: Sydney Counsel for the Appellant: Mr Harper Solicitor for the Appellant: Wilkinson Throsby & Edwards Counsel for the Respondent: Ms Breeze Solicitor for the Respondent: STC Legal Counsel for the Independent Children's Lawyer: Ms Stolier Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates ORDERS
NAA 92 of 2023
PAC 4677 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CRESSWELL
Appellant
AND: MR CONROY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SCHONELL J
DATE OF ORDER:
7 JUNE 2023
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 12 April 2023 is reinstated pursuant to r 13.44 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
2.The appellant is to file the draft appeal index within 72 hours.
3.The appellant is to file an amended Notice of Appeal within 14 days.
4.Within seven (7) days, the appellant pay the respondent’s costs of the Application in an Appeal agreed in the sum of $5,000.
5.The Application in an Appeal filed 11 May 2023 is otherwise dismissed.
6.The matter is referred to the appeal registrar for the making of further directions.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cresswell & Conroy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application in an Appeal filed 11 May 2023, the appellant seeks to reinstate a Notice of Appeal filed 12 April 2023 that was deemed abandoned by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
BACKGROUND
The appellant is party to long running parenting and financial proceedings that commenced in 2016. The final hearing before a judge of the Federal Circuit Court of Australia (as it then was) commenced in February 2019 and concluded with final submissions on 19 November 2021.
The primary judge delivered reasons and made orders on 15 March 2023, which provided for the respondent to have sole parental responsibility of the parties’ one child aged 9 years, and for the appellant to spend time with the child on a gradually increasing basis such that by the commencement of the 2024 school year the child would spend time with the appellant each alternate weekend and half school holidays as well as on other special days. The primary judge also made orders pursuant to s 90SM of the Family Law Act 1975 (Cth).
Since February 2019, the child has been living in the primary care of the respondent and spending supervised time with the appellant. The appellant’s application before the primary judge was that the child live with her. In her reasons, the primary judge recorded:
275. On balance and for reasons which have earlier been discussed, while there is a strong argument for [the child] to live with [the appellant], it is determined that his best interests are met by an order that he live with [the respondent].
…
276.As noted earlier in these Reasons for Judgment, continued supervision of [the child’s] time with [the appellant] is not supported by the evidence.
In support of the Application in an Appeal, the appellant’s solicitor has sworn an affidavit which records that he filed the Notice of Appeal on 12 April 2023 and that the appellant has paid for the transcript of the hearing. The affidavit filed 11 May 2023 states:
21. I had inadvertently “diarised” the date for filing the Draft Appeal Index as 12 May 2023 not 10 May 2023.
22. Annexed marked “A” is a true copy of the partially completed Draft Appeal Index as it was at 5.00 pm Tuesday 9 May 2023. I am able to complete and file the document by 12 May 2023.
23. I regret that I had overlooked the fact that an Application may have been made to extend time to file documents.
24. It is not the wish of [the appellant] to abandon her Appeal.
As a consequence of the appellant’s failure to file the draft appeal index, the appellant’s Notice of Appeal is deemed to have been abandoned pursuant to r 13.14.
APPLICABLE LAW
Pursuant to r 13.44 of the Rules, “a party may apply to have an appeal taken to be abandoned under this Chapter reinstated”. The rule itself provides no guidance as to how any discretion to reinstate is to be exercised.
In Traver and Boyce [2021] FamCAFC 44, Strickland J observed, in the context of an application for reinstatement (albeit in reference to the former family law rules), the following:
11.In terms of the principles to be applied, r 22.44 of the Rules provides for an application to reinstate an appeal taken to be abandoned, however, unlike its predecessor r 22.57, this rule does not provide any specified criteria that may be taken into account in the exercise of discretion by the court, and that is consistent with the Full Court decision of Bemert and Swallow (2010) FLC 93-441 where their Honours concluded at [154]:
…[i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account. …
12. That said, the Full Court also noted at [154] that:
…[i]t is important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175].
13.As to that latter case and, in particular, the issue of case management, I refer to what French CJ said at [30], and I do not need to do more than just refer to that.
14.In any event, importantly, despite what the Full Court said at [154], it was also identified in Bemert and Swallow that the principles applicable to the determination of an application for an extension of time, as set out, for example, in an oft-quoted extract from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479, apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said this at 480 – 481:
…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. 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. 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. 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. 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…
(Citations omitted)
15.Thus, in summary, the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, and, in looking at where the justice of the case lies, there are a number of factors that may be relevant to be taken into account.
16.In my view, the three most relevant factors here are, first, whether there are adequate reasons that explain the failure to comply with the relevant timeframe, secondly, the merits of the appeal, and thirdly, the prejudice to the parties depending upon whether the application is granted or dismissed.
DISCUSSION
I have referred to earlier the affidavit of the appellant’s solicitor explaining the circumstances in which the appeal was deemed abandoned.
It is self-evident that it is through no fault of the appellant. It is clear from the affidavit of the solicitor that the appellant has taken steps to prosecute the appeal diligently, including the ordering of a transcript and that the draft appeal index can be filed forthwith.
In relation to the question of merits, the test is whether the Notice of Appeal has a chance of success. In that respect, even a remote chance of success will suffice (see Jackamarra v Krakouer (1998) 195 CLR 516). Part E of the Notice of Appeal is absent any particulars that would permit the respondent to ascertain how it was that the primary judge erred. I acknowledge that, in light of the primary judge’s comments referred to earlier, it could be asserted that it was a finely balanced determination. That said, the Notice of Appeal requires significant amendment. I am not prepared to find at this stage that the appeal has no chance of success.
There is a prejudice that is occasioned irrespective of the outcome to one of the parties. On balance, there is a more substantial prejudice to the appellant. The prejudice occasioned to the respondent can be ameliorated by an order for costs.
CONCLUSION
For the above reasons, I am satisfied that it is appropriate that the appellant’s appeal be reinstated. To do otherwise would be to fail to do justice as between the parties.
Accordingly, I propose to make orders directing the reinstatement of the appellant’s Notice of Appeal pursuant to r 13.44 as well as other procedural orders including for the filing of the draft appeal index and an Amended Notice of Appeal.
The appellant agreed that it was appropriate that an order be made for the payment of the respondent’s costs of the application. The appellant and the respondent agreed that costs should be fixed in the sum of $5,000.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 7 June 2023
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