CROWTHER & TOTHILL
[2017] FamCAFC 200
•18 September 2017
FAMILY COURT OF AUSTRALIA
| CROWTHER & TOTHILL | [2017] FamCAFC 200 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is an adequate reason for the failure by the applicant to file her Notice of Appeal within time – Where it cannot be demonstrated that the appeal is hopeless or doomed to fail – Where there is prejudice to both parties no matter what the decision and in the circumstances the interests of justice require that the application be granted – Application granted. FAMILY LAW – APPLICATION IN AN APPEAL – CONSOLIDATION – Where in the event that an extension of time is granted to file a Notice of Appeal the applicant seeks an order that this appeal be heard concurrently with all other appeals in this matter – Where an extension of time has been granted – Appeals consolidated. FAMILY LAW – COSTS – Where the respondent seeks his costs – Where there are circumstances which justify such an order – Costs ordered in favour of the respondent. |
| Family Law Act 1975 (Cth) |
| Family Law Rules 2004 (Cth) Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Crowther |
| RESPONDENT: | Mr Tothill |
| INDEPENDENT CHILDREN’S LAWYER: | Ashley Kent | ||||
FILE NUMBER: | ADC | 4457 | of | 2013 | |
| APPEAL NUMBER: | SOA | 59 | of | 2017 |
| DATE DELIVERED: | 18 September 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 18 September 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 May 2017 |
| LOWER COURT MNC: | [2017] FamCA 307 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr Ingleby |
| SOLICITOR FOR THE APPLICANT: | Marshalls & Dent |
| COUNSEL FOR THE RESPONDENT: | Mr Roder SC with Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Nicholls Gervasi & Co | ||||
| Mr Kent Legal Services Commission of SA |
Orders
The time for the mother to file and serve a Notice of Appeal against the order made by Justice Hannam on 15 May 2017 be extended to 4:00pm on Monday 25 September 2017.
Subject to the filing and serving of the Notice of Appeal as referred to in paragraph 1 herein appeal no. SOA 59 of 2017 be heard together with appeal nos. SOA 41 and SOA 48 of 2017.
The mother pay the costs of the father of and incidental to the application in an appeal filed on 10 August 2017, such costs to be taxed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crowther & Tothill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
|
Appeal Number: SOA 59 of 2017
File Number: ADC 4457 of 2013
| Ms Crowther |
Applicant
And
| Mr Tothill |
First Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed on 10 August 2017 by Ms Crowther (“the mother”). The application seeks, in effect, an order that there be an extension of time to file a Notice of Appeal against the order made on 15 May 2017 by Hannam J.
The application is opposed by the father.
I note that in the same application the mother seeks an order that, presumably in the event that time is extended, the appeal be heard concurrently with all other appeals in this matter. In that regard I have confirmed with senior counsel for Mr Tothill (“the father”), that his client has no objection, if that point is reached, for this appeal to be heard concurrently with appeal numbers SOA 41 and SOA 48 of 2017.
As is obvious from earlier comments I have made, there are two related appeals in this matter. One I will describe as being a substantive appeal against parenting orders made by Hannam J on 30 June 2017, and the other is an appeal against orders made by Hannam J in those same proceedings, refusing an application by the mother to adjourn the proceedings.
Those two appeals have been consolidated and will be heard together.
To explain the context of this application, the order sought in the draft Notice of Appeal, which will be the Notice of Appeal to proceed if time is extended, is that the proceedings be remitted for hearing before a trial judge other than Hannam J. As counsel for the mother has explained, it is not intended that if this appeal is allowed to proceed, that it proceed discretely, and in relation to the issue involved, namely the reopening of the case, that that also be discretely reheard by a trial judge other than Hannam J. What is intended is that that issue, namely her Honour’s refusal to reopen the case to allow further evidence, will be addressed as, in effect, part of the overall submissions of the mother in relation to the substantive appeal, being the appeal against the parenting orders made by her Honour.
During submissions, counsel for the mother also explained that this application has been brought, in a sense, as a defensive measure to address a submission that might otherwise be made by the father in the substantive appeal, namely that the refusal by her Honour to reopen the case could not be argued before the Full Court in that appeal, because there had been no discrete appeal brought against that order.
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides a timeframe for the filing of Notices of Appeal, namely 28 days after orders are made. In this matter, no appeal was filed within that timeframe, and that of course then led to the application in an appeal which is before the court today.
RELEVANT PRINCIPLES
The principles applicable to the determination of an application for an extension of time are helpfully set out in the oft-quoted judgment of Gallo v Dawson (1990) 93 ALR 479, and specifically in the judgment of McHugh J at 480:
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 is plain, the fundamental issue is whether an extension of time is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies there may be a number of factors to take into account.
The major factors though, and indeed those which apply in respect of the application now before the court are first, whether there are adequate reasons which explain the failure to file a Notice of Appeal within the time provided in the Rules, secondly, the merits of the appeal in the sense of the prospects of success of the appeal, and thirdly, the prejudice or hardship that each of the parties will suffer depending on whether the application for an extension of time is granted or refused.
I will now address those factors in turn.
Adequate explanation
The reasons for the failure to file in time are contained in an affidavit of the mother’s solicitor filed on 10 August 2017.
In summary, that solicitor deposes to not having received the reasons for judgment of her Honour, and the fact of her Honour having delivered those reasons only becoming apparent when the matter was before this court on 28 July 2017, in relation to the two other appeals that I have previously mentioned. As a result of learning that, the solicitor tells the court that she contacted the associate to Hannam J and queried how the reasons had been published on 16 May 2017, and she was advised that they were forwarded to the solicitor’s firm by way of the firm’s document exchange. In that regard the solicitor tells the court in her affidavit that nothing was received through their document exchange, and that that led to the failure to file a Notice of Appeal within time.
In terms of the father’s position as to this issue, his solicitor filed an affidavit in opposition to the application on 4 September 2017. In that affidavit the solicitor for the father raises pertinent questions as to why no checks were made by the solicitor for the mother, given the reasons for judgment had not been received by her firm, and in particular, referring to the fact that the father’s solicitors were advised through an email notification of the availability of the court orders, and querying why a Notice of Appeal could not have been prepared on the basis of the orders made, without awaiting the reasons for judgment.
In my view, these questions are all legitimate matters to raise in relation to the reasons proffered by the mother for the failure to file within time. However, there is no suggestion that there was any deliberate failure, or delay, and it seems to me that there has been an oversight on the part of the solicitor for the mother in, to repeat, perhaps not checking to see what had happened once the reasons had not been delivered in the timeframe identified by her Honour when her Honour heard the matter, namely within a week.
In the end result, albeit with some reservations, I am satisfied that there is an adequate explanation for the failure to file within time.
The merits of the appeal
It is not possible for this court in an application like this to be definitive in assessing the merits of a proposed appeal. I have limited documentation, namely I have the reasons for judgment of the trial judge, and the proposed Notice of Appeal filed by the mother. Importantly, what is not before me, for example is the transcript of the hearing before the trial judge, although I do have, I think, an extract of the transcript of that hearing, as well as all of the documents which were before the trial judge for the purposes of that application, and which would be before a Full Court if the appeal was allowed to proceed.
I therefore am not able to assess in any depth the merits of the appeal, and my analysis must necessarily be limited to the documentation I do have, together with the oral submissions made on behalf of the parties today.
This is a matter where leave to appeal is required, and the draft Notice of Appeal sets out the facts that are relied on in support of the application for leave to appeal, as well as the grounds of appeal as follows:
Leave to Appeal
1.The error of principle was that case management was afforded priority over:
(a)Procedural fairness to be afforded to the mother; and
(b)The best interests of the child in terms of the Court determining it did not want to be privy to updated evidence which concerned the child after the close of evidence, despite such evidence being relevant to a determination of the child’s best interests.
2.The error of principle brought about a substantial injustice as the matter was determined on a final basis without consideration of updated evidence relating the child’s circumstances after the close of evidence.
Grounds of appeal
1.The learned Trial Judge erred by refusing the Mother permission to adduce evidence as to the progress of the Father’s time between the conclusion of the hearing on 17 March 2017 and the submissions on 15 May 2017 in circumstances where:
(a)Substantial changes to the child’s spend time arrangements were ordered to occur during this interim period
(b)The mother’s capacity to facilitate the father’s time with the child was a significant issue in the proceedings.
In the circumstances, the only question for me is whether there is an arguable case on appeal. Indeed, where it appears that there is even the remotest chance of success, then that is enough. In this regard this exercise is somewhat similar to the exercise required in determining an application for summary judgment, and to put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then, subject to where the justice of the case lies, the appeal should be allowed to proceed.
I note in that regard that the submission of senior counsel for the father was that the prospects were not strong. In my view whether that is right or wrong, it is enough, and that is all that is required. In other words, to repeat, it cannot be demonstrated that the appeal is hopeless or doomed to fail.
The consequences of the granting or refusal of the application
It seems to me that there would be prejudice or hardship either way.
If the application is granted, then the appeal will be allowed to be filed and it will be able to be pursued by the mother. The father will need to deal with it. He will need to spend time and inevitably money in responding appropriately to the appeal. Thus, there is an obvious prejudice to the father, given that as things stand, this is not an appeal he has to deal with.
On the other hand, if the application is refused, then the mother will not be able to pursue her appeal. Significantly, there is no appeal from a refusal to grant an application such as this. There is of course the ability to apply for special leave to appeal to the High Court of Australia; however, that is a difficult exercise at the best of times, and may not of course be warranted in this case. Thus, prima facie, there is a serious consequence for the mother if her application is refused.
However, I am mindful of the submission put by counsel for the mother, namely that even if this appeal is not allowed to proceed, he will be looking to still raise as a relevant matter, in the context of challenging the exercise of discretion of the trial judge, that her Honour refused to reopen the case to allow further evidence to be presented. I do not propose to say anything more about that, but that of course would lessen any prejudice that the mother might have if I was to refuse this application.
Conclusion
As the authorities recognise the court’s consideration of the relevant factors informs the court in determining the fundamental issue, namely where the justice of the case lies. Here, although it is plain that I have some reservations about it, in the end result I am satisfied with the explanation for the failure to comply with the Rules and file a Notice of Appeal within time.
In terms of the merits of the appeal, I cannot say that there is no prospect of success.
Finally, there would appear to be prejudice or hardship either way depending on whether the application is granted or refused, and in all the circumstances the interests of justice require that the application be granted.
Costs
I now have an application for costs by the father as a result of the orders that I have made in relation to the application.
That application is opposed by the mother.
In my view there should be an order for costs.
This has been an indulgence granted to the mother solely as a result of her failure to file a Notice of Appeal in time. That is the only reason the application had to be brought, and it was appropriate for the father to oppose the application and appear today.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 18 September 2017.
Associate:
Date: 26 September 2017
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