DEMYAN & BEATTIE
[2015] FamCAFC 140
•24 July 2015
FAMILY COURT OF AUSTRALIA
| DEMYAN & BEATTIE | [2015] FamCAFC 140 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend time to file Notice of Appeal – Where granting of leave is not automatic and involves the exercise of judicial discretion – Where the applicant has adequately explained his failure to file the Notice of Appeal within time – Where the proposed appeal concerns an interlocutory order in relation to a matter of practice and procedure – Where it is appropriate to give greater weight to the lack of merit in the proposed appeal – Application dismissed. |
| Family Law Rules 2004 (Cth): r 22.03 Family Law Regulations 1984 (Cth): reg 15A |
| Gallo v Dawson (1990) 93 ALR 479 In the marriage of Rutherford (1991) 15 Fam LR 1 Tindall & Saldo [2015] FamCAFC 1 |
| APPLICANT: | Mr Demyan |
| RESPONDENT: | Ms Beattie |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2026 | of | 2009 |
| APPEAL NUMBER: | EA | 88 | of | 2015 |
| DATE DELIVERED:: | 24 July 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 16 and 22 July 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT ORDERS MADE: | 13 May 2015 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Demyan in Person |
| SOLICITOR FOR THE RESPONDENT: | Fielden & Associates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The Application in an Appeal filed 15 June 2015 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Demyan & Beattie 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 88 of 2015
File Number: NCC 2026 of 2009
| Mr Demyan |
Applicant
And
| Ms Beattie |
Respondent
REASONS FOR JUDGMENT
This is an application by Mr Demyan (“the father”) filed 15 June 2015 for an extension of time to file an application for leave to appeal against Order 1 made on 13 May 2015 by Cleary J. By Order 1, the primary judge dismissed the father’s application for the appointment of a clinical psychologist as an expert in parenting proceedings.
Ms Beattie (“the mother”) is the respondent to this application and in the parenting proceedings. Those proceedings relate to the parties’ child, R (“the child”) who was born in 2009.
Central to the parenting proceedings is a disagreement about the amount of time, if any, the child should spend with the father. That issue has always been contentious and, as might be anticipated, is the subject of orders which both parties seek to change. With the concurrence of the parties and an Independent Children’s Lawyer (“ICL”) appointed to represent the child’s interests. Mr W, who is a psychologist, was appointed to prepare a family report. He did so and his report was released to the parties and ICL on 24 March 2015.
The father is concerned about statements apparently made by the child to the psychologist and the psychologist’s ultimate recommendation. Thus, on 29 April 2015, he filed an application for the appointment of another expert. He sought that that expert read the psychologist’s report and then interview the parties and child so that the putative expert could express an opinion about whether the child had recounted his own opinions of the father or had been unduly influenced by the mother to reject him.
The mother and ICL opposed the father’s application and, as has already been mentioned, it was dismissed.
In dismissing the father’s application, the primary judge pointed out that the father sought the appointment of an expert with the same qualifications as the first report writer. The point being, there was no suggestion that the report writer was not qualified to express the opinions which he did. Rather, as her Honour explained, the father hoped to achieve a different opinion from a similarly qualified expert. Because that process would inevitably require that the child be interviewed again, the primary judge said she would need to be satisfied there was a proper basis for putting the child through another round of interviews. As the primary judge said, her task was “…to ensure that there’s no more interviewing of children in particular than is necessary”. Her Honour was not persuaded that a second opinion was necessary.
The parenting proceedings are listed for final hearing to commence on 24 September 2015.
The father’s application for an extension of time was listed for hearing on 16 July 2015. However, the primary judge’s reasons for judgment were not available on that occasion and, because there was an argument about whether the appeal might attract appellate intervention, the proceedings were adjourned so that the reasons could be published. In the event they were not and the hearing proceeded on 22 July 2015 with the transcript.
The applicable rules and principles
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.03 provides that a Notice of Appeal, including a Notice of Appeal in which leave to appeal is sought, must be filed within 28 days after the date the order appealed from was made.
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. 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, the strength of the proposed appeal and the consequences for the parties of the grant or refusal of leave. The overarching principle being to ensure that injustice is not visited upon either of the parties. To refuse an extension of time in relation to an appeal which is devoid of merit would not visit an injustice on the applicant for an extension.
Discussion
The last date for filing an application for leave to appeal was 10 June 2015.
The father signed a Notice of Appeal on 18 May 2015 which he forwarded to a registrar of the Family Court at Newcastle. The father explained he had always dealt with this registrar and he believed she would take care of the administrative steps needed for his Notice of Appeal to be filed. What he did not know was that the Registrar was no longer with the Court, as a consequence of which it took some time for his documents to reach the Appeals Registry in Sydney. Although the Notice of Appeal was received within time, it was not accompanied by a filing fee or an application for exemption from paying the filing fee.
Attempts made by the Registry to contact the father in order to rectify this deficiency were unsuccessful, as a consequence of which his Notice of Appeal was not filed.
It is the father’s evidence that he sent an application to waive the filing fee to the Court at Newcastle and he does not know why that document was not received in Sydney in time. There is no reason why the father’s evidence would not be accepted, as a consequence of which he has established a reasonable explanation for his failure to file the Notice of Appeal in time.
Thus, it is necessary to consider the merit of the proposed appeal.
The father, who appears unrepresented, prepared his grounds of appeal. Although the putative grounds are no grounds at all, he asserts an error of law in that her Honour:
·failed to take into account the child’s maturity and level of understanding; and
·ought to have dealt with this case in the same manner as she did in the case of Tindall & Saldo [2015] FamCAFC 1.
The father understands that her Honour’s order is an interlocutory decree and is not a prescribed decree as that term is defined by reg 15A of the Family Law Regulations 1984 (Cth). In other words, that it is an interlocutory decree in relation to a matter of practice and procedure and is not an interlocutory decree in relation to a child welfare matter. It is well settled that particular caution should be exercised in the review by way of appeal of an order which pertains to practice and procedure (In the marriage of Rutherford (1991) 15 Fam LR 1).
The child is six years old. The basis upon which his age and maturity might justify a report from a different psychologist was not explained to her Honour or on this application. In and of itself the failure to make that argument would be fatal to the proposed appeal.
Of course, the matters which the father would seek to have the second psychologist investigate may be appropriate matters for cross-examination of the report writer. They are not capable of establishing appellate error at this interlocutory stage.
It follows, that notwithstanding the father has explained his failure to file the Notice of Appeal within time to the Court’s satisfaction, it is appropriate to give greater weight to the lack of merit in the proposed appeal. The father’s application for an extension of time for leave to appeal will accordingly be dismissed.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 24 July 2015.
Associate:
Date: 24 July 2015
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