Delayney and Wilkerson
[2013] FamCAFC 213
•19 December 2013
FAMILY COURT OF AUSTRALIA
| DELAYNEY & WILKERSON | [2013] FamCAFC 213 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application to extend time to file a Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where the reason for delay in filing a Notice of Appeal is accepted - Where consideration of the grounds of appeal find that it would not be an injustice to the applicant to not grant an extension of time. |
| Family Law Rules 2004 (Cth): rr 22.02, 22.03, 22.12 |
Gallo & Dawson (1990) 93 ALR 479
| APPLICANT: | Mr Delayney |
| RESPONDENT: | Ms Wilkerson |
| FILE NUMBER: | SYC | 1318 | of | 2009 |
| APPEAL NUMBER: | EA | 53 | of | 2013 |
| DATE DELIVERED: | 19 December 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATES: | 17 and 19 December 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 November 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1095 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In Person |
| SOLICITOR FOR THE APPELLANT: |
| COUNSEL FOR THE RESPONDENT: | In Person |
| SOLICITOR FOR THE RESPONDENT: |
Orders
That the Application in an Appeal filed by Mr Delayney on 8 May 2013 for an extension of time to file a Notice of Appeal against the orders of
Judge Dunkley on 7 November 2012 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Delayney & Wilkerson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 53 of 2013
File Number: SYC 1318 of 2009
| Mr Delayney |
Appellant
And
| Ms Wilkerson |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
This is an application by Mr Delayney (“the applicant”) for an extension of time to file a Notice of Appeal.
The proposed appeal concerns child support orders made in the Federal Circuit Court by Judge Dunkley on 7 November 2012.
By order 1 of the orders, dated that day, his Honour set aside a child support agreement entered into by the applicant and Ms Wilkerson (“the respondent”).
The child support agreement was dated 24 August 2006 and made provision for the payment of child support by the applicant for the parties’ children, N born in February 2000 and B born in December 2002.
By order 2 of his Honour’s orders, the agreement was set aside on
6 February 2012. The significance of that date is that it is the date upon which the applicant commenced proceedings in the Federal Circuit Court to set aside the child support agreement. It is that order that is the subject of this application and, if an extension of time is given, would be the subject of the appeal. It is argued by the applicant that the date upon which the agreement was set aside should have been some four years earlier when, on his own petition, he was made bankrupt.
It is the respondent’s position that the application for an extension of time should be dismissed. She does not concede that there is an adequate explanation given by the applicant for the delay in presenting his Notice of Appeal, or that he has established that if leave was not given an injustice would follow.
Background facts
So as to give this application context it is necessary to record a few seemingly uncontroversial facts.
N was born in 2000. B was born in 2002.
Following the parties’ separation, on 24 August 2006, they entered into a child support agreement which, as already mentioned, required the payment of child support by the applicant to the respondent for the parties’ two children.
In May 2008 the applicant was charged with the commission of one or more criminal offences. The nature of those offences is not clear and it is inferred irrelevant. The relevant uncontroversial fact is that from that time the applicant has been unable to earn an income.
On 22 August 2008, on his own petition, the applicant became bankrupt.
The applicant was sentenced to a term of imprisonment on 15 December 2010, which sentence commenced immediately.
The applicant was discharged from his bankruptcy on 23 August 2011.
As was earlier mentioned, the applicant filed his application to set aside the child support agreement on 6 February 2012.
On 7 November 2012 his Honour made the orders referred to for which he published his reasons.
At the time that the orders were made the applicant was still incarcerated. Aware that judgment had been delivered, when within the week he had not received it the applicant sought the assistance of a welfare officer to obtain a copy. An approach was made to the court, or his Honour’s chambers, it is not clear which, for a further copy of the judgment. The applicant deposes that he received the reasons and order on 23 November 2012. It follows that the judgment and orders were received within time to lodge an appeal.
The applicant deposes to the difficulties he experienced in garnering the documents required to present his appeal. For example, on 26 November 2012 he wrote to the Appeals Registry seeking documents and indicating his intention to appeal.
The documents were sent to the applicant by letter from the Appeals Registry on 10 December 2012. It was at that time that the applicant was formally informed about the timeframe within which to lodge an appeal.
In any event, it is his evidence that with delay occasioned by reason of his circumstances, and a reduction in people available to assist him over the December/January 2012/2013 period while he was still incarcerated, he completed the requisite application for an extension of time within which to file an appeal and the Draft Notice of Appeal, and forwarded it to the Appeals Registry.
When the applicant had not heard back, on 6 April 2013 he wrote to the Appeals Registry enquiring as to the status of his application for an extension of time. By letter dated 19 April 2013, the Appeals Registry informed the applicant that no documents had been received from him; the point being if the applicant’s evidence on this point is accepted, and it seems there is no reason not to accept it, his original documents did not make it to the Appeals Registry.
Thus a duplicate set of documents were forwarded by the applicant to the Appeals Registry, with those documents received on 8 May 2013.
The applicant provided a Draft Notice of Appeal and appeal index on
15 July 2013.
The applicant’s parole date was set at 21 September 2013, thus his application was listed after he was due to be released; the point being it would be, in all probability, much easier for him to attend to these matters if the court set the date when he was at liberty. Unfortunately the date that was allocated needed to be shifted and the application was listed for hearing at 3 pm on 17 December 2013.
In the meantime the respondent filed a response to the application and appeal and a supporting affidavit. Simply put, the respondent sets out briefly the argument that she advances about why leave should not be given.
In the event, correspondence was sent to the applicant and the respondent by the Appeals Registry on 3 December 2013 informing the parties of the December listing. The respondent received her letter but the applicant did not, thus when the matter was called on, he was not in attendance. My court officer made contact with him by telephone and I decided that it would be appropriate to adjourn the application so that the applicant could gather himself and present the argument that he wanted to present in support of his application. Thus the hearing proceeded today with the applicant attending personally and the respondent appearing by telephone.
The applicable rules and principles
Chapter 22 of the Family Law Rules 2004 deals with appeals.
Rule 22.02 deals with how an appeal is to be commenced, namely by filing a notice of appeal.
Rule 22.03 sets out the timeframe within which an appeal is to be filed.
Rule 22.02 provides for a party to make an application for leave to appeal.
In this case the last date for filing an appeal, which would include an application for leave to appeal the child support order, was 7 December 2012.
The granting of leave is not automatic and involves the exercise of discretion. The principles relating to applications for an extension of time to file an appeal are set out in Gallo & Dawson (1990) 93 ALR 479.
The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether 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 the parties of the grant or refusal of leave.
Discussion
I will now turn to the explanation given by the applicant for the time taken within which to present his Notice of Appeal. As I explained to the applicant during exchanges, it is accepted that it is more difficult for a person who is incarcerated to meet the time limits and complete the requisite forms to present an appeal, including an application for leave to appeal.
Here, although the applicant received the judgment and orders which he would challenge within time, the timeframe was obviously tight and, as the chronology demonstrates, the applicant moved quite promptly to obtain the documents that he needed in order to present his appeal.
I have accepted the explanation for his inability to present the Notice of Appeal within time and that the applicant took necessary steps reasonably promptly in order to progress his intended appeal.
The consequences of mail going astray should not be visited on him. Notwithstanding the respondent’s concern that the applicant could have moved with even greater speed and ensured that his application and appeal were presented within time, his explanation for his delay is accepted.
The more significant issue is whether to refuse to extend time would work an injustice to the applicant. It is here that it is necessary to consider the grounds of appeal which the applicant would pursue if an extension is given.
As earlier referred to, the applicant succeeded in having the child support agreement set aside. He was unable to persuade the trial judge, however, that the date upon which that order should commence was the date upon which he was made bankrupt, rather than the date upon which he filed his application.
The ground of appeal which goes to this issue says:
Paragraph 2 of the court orders do not take into account the circumstances current at the time of bankruptcy.
The applicant provides no particulars of what those circumstances might have been. In argument this morning he alluded to the great stress under which he laboured at the time he was declared bankrupt, and the period leading to and resulting in his term of imprisonment.
The trial judge considered two dates upon which the order that the child support agreement be set aside might commence. He correctly identified that determining that issue was a matter for the exercise of his discretion. At [33] of the trial judge’s reasons, he correctly identified that the applicant argued that the date should be the date of his bankruptcy.
The trial judge indicated an alternate date was the date of filing his application and, it is at [34] and [35] in particular, that his Honour explains why he chose that date rather than an earlier date, in particular the date of bankruptcy.
His Honour considered that although the applicant provided reasons for not filing his application some four years earlier, those reasons were not persuasive. His Honour referred to the notice provided by the Child Support Agency to the applicant that he could file an application pursuant to section 136 of the Child Support (Assessment) Act 1989 (Cth).
At [35] of the reasons, his Honour explains that the delay in filing was within the applicant’s control and that it would not be equitable for him to benefit from his delay. The trial judge points out that the applicant became bankrupt on his own petition and commented:
…If he had time to file that documentation he certainly had time to file an initiating application in this court.
It is the applicant’s argument that that sentence in particular fails to come to grips with the stress under which he laboured at the time he presented his debtors’ petition and the period following.
It cannot be overlooked, and his Honour did not, that the period following is something close to four years.
Nothing in the material presented by the applicant in support of his application for an extension of time would cast doubt on the reasonableness of the
trial judge’s decision to conclude that the applicant’s reasons for not filing in the following years were unpersuasive.
In short, the applicant would seek to challenge a decision which is quintessentially one for the trial judge. It has not been demonstrated that the trial judge acted on an error of principle nor that the decision is plainly wrong such as to be tantamount to an error of law.
The material presented by the applicant does not establish that to refuse him an extension of time within which to present an appeal, including an application for leave to appeal, would work an injustice, and thus the application will be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on
19 December 2013.
Associate:
Date: 30 January 2014
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