Draper & Corwin
[2021] FamCAFC 143
•9 August 2021
FAMILY COURT OF AUSTRALIA
Draper & Corwin [2021] FamCAFC 143
Appeal from: Consent Orders made 5 August 2020 Appeal number(s): SOA 99 of 2020 File number(s): MLC 4817 of 2020 Judgment of: STRICKLAND J Date of judgment: 9 August 2021 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no satisfactory reason for the failure to file a Notice of Appeal within time – Where there is no basis for leave to appeal being granted and even if there was the appeal has no chance of success – Where to allow the proposed appeal to proceed would prejudice the respondent far more than the applicant – Application dismissed.
COSTS – Where the respondent seeks costs on an indemnity basis – Where the circumstances justify an order for costs being made – Where there are exceptional circumstances which warrant an order for indemnity costs – Costs fixed in the sum of $8,000 pursuant to r 19.18(1)(a) of the Family Law Rules 2004 (Cth).
Legislation: Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 19.18(1)(a)
Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
D & D (Costs) (No. 2) (2010) FLC 93-435; [2010] FamCAFC 64
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Kohan and Kohan (1993) FLC92-340; [1992] Fam CA 116
Limousin & Limousin (Costs) (2007) 38 FamLR 478; [2007] FamCA 1178
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Division: Appeal Division Number of paragraphs: 54 Date of hearing: 19 February 2021 Place: Melbourne via Microsoft Teams The Applicant: In Person Solicitor for the Respondent: KCL Law Counsel for the Respondent: Mr Strum SC ORDERS
SOA 99 of 2020
MLC 4817 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR DRAPER
Applicant
AND: MS CORWIN
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
9 AUGUST 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 22 December 2020 be dismissed.
2.The applicant father pay the costs of the respondent mother fixed in the sum of $8,000.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Draper & Corwin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Before the Court is an Application in an Appeal filed by Mr Draper (“the father”) on 22 December 2020 seeking an extension of time to file a Notice of Appeal from consent orders made by a Judge of the Family Court of Australia on 5 August 2020.
The application is opposed by Ms Corwin (“the mother”).
The primary order that is sought to be complained of provided as follows:
3.The Application of the State Central Authority filed on 14 May 2020 pursuant to Regulation 14 of the Family Law (Child Abduction Convention) Regulations 1984 be and is hereby dismissed.
That was an application seeking the return of the child of the parties to the United States, and what the father was seeking to achieve with an appeal, was the setting aside of that order allowing him to pursue the application for the return of the child.
In the proposed Notice of Appeal, in the event that an extension of time was granted, the father sought leave to appeal, and if leave was granted to appeal the orders made.
I heard this matter on 19 February 2021, and I note that at that hearing I indicated to the parties that I would look to deliver judgment prior to 26 April 2021. The reason for that was that that apparently was the date when the substantive parenting proceedings were next listed for trial. However, on 27 January 2021, the primary Judge had ordered that that hearing be adjourned to a date to be fixed pending the outcome of this application. In any event, the pressure of work has prevented me from delivering judgment until now.
THE APPLICABLE PRINCIPLES
The law in relation to applications for an extension of time is well settled. For example, in the High Court decision of Gallo v Dawson (1990) 93 ALR 479, McHugh J said this 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.
Thus, the fundamental issue is whether an extension of time is necessary to enable the Court to do justice between the parties, and in addressing that there are a number of factors to be taken into account. Primarily though, the three factors to be considered are the reasons for the failure to file a Notice of Appeal within time, the prospect of success of the Application for Leave to Appeal and the appeal if leave is granted, and the prejudice to the parties depending upon the outcome of the application.
The reasons for the failure to file within time
For this I need to go to the father’s brief affidavit filed on 22 December 2020, and to his more expansive affidavit filed on 5 February 2021.
In summary, the father says first that “despite multiple enquiries” he was not advised of his ability to appeal by his own lawyers, the State Central Authority, the Judge, Court Registry staff or any other authority or person.
Pausing there, I am not told what the multiple enquiries were, and that is a difficulty in itself, but in any event there is no obligation on the State Central Authority, the Judge, or the Court Registry staff to advise the father of anything. Significantly though, he had his own lawyers in Australia and in the United States. The former remained his lawyers until 18 December 2020, and it beggars belief that if the father had raised with those experienced practitioners what his options were, he would not have been provided with the appropriate advice, at least as to the time period for filing an appeal.
I note that the father failed to present any evidence at all from his lawyers in Australia as to what transpired between them in this regard. With his lawyers in the United States, although he did file an affidavit from them, there was nothing in that affidavit as to this issue.
The second, or ancillary reason proffered by the father was his inability to obtain all of the transcript of the hearing on 5 August 2020. It is common ground that for some unknown reason the Court’s provider could only make available four pages of transcript from when the matter was before the primary Judge in the morning of 5 August 2020. Thus, there was no transcript available for the hearing in the afternoon.
However, the first thing to note is that the father did not commence his attempts to obtain the transcript until 21 October 2020, namely well after the 28 day time period for filing a Notice of Appeal had expired.
Further, given the unchallenged evidence of the mother’s solicitor in her affidavit of 12 February 2021 as to what transpired on 5 August 2020, I consider that it was entirely unnecessary for all of the transcript to be obtained for the purposes of any appeal.
Thus, I find that there is no satisfactory reason for the father’s failure to file a Notice of Appeal within time.
The prospects of success of the appeal
Of course, the first issue to be addressed here is the Application for Leave to Appeal.
The test to be applied in applications for leave to appeal is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692).
The facts relied on by the father in support of the Application for Leave to Appeal are as follows:
My natural Justice was denied. Trial and ensuing conferences with SCA, Judge Williams and attorneys continued until 2 a.m. USA time after I had worked all day (I left the house at 6:00 a.m. the morning before the trial) The trial judge erred in not affording me Natural Justice by forcing a decision upon me in the early hours of my morning without any notice and without informing me of my rights. She made a judgment as to the case without having heard my case, forcing me to withdraw mid cross examination with no ability to adjourn and properly consult with counsel. Since I was mid testimony and unable to discuss any substantive matters in the case. I was in essence forced to make a decision to withdraw without being able to fully assess matters and the consequences.
(As per the original)
As can be seen, the complaint is that the father was not afforded natural justice by the primary Judge.
However, pausing there, the evidence does not support this claim. The sequence of events on 5 August 2020 were as per paragraph 11 of the affidavit of the mother’s solicitor, and it bears quoting as follows:
11. I confirm as follows in relation to the hearing on 5 August 2020:
(a)The Trial resumed in the morning and cross-examination of Mr Draper by my client’s Counsel continued.
(b) The morning recess took place at 11:05am.
(c)The matter resumed before Her Honour at approximately 11:52am at which time Counsel for the State Central Authority sought leave to withdraw from the proceedings. The transcript produced by the Applicant and annexed as “Exhibit A” to his Affidavit filed in this proceeding on 5 February 2021 relates to the appearance before Her Honour at this time.
(d)The matter was temporarily adjourned at 11:58am at which time Her Honour advised that the matter would resume at 1:30pm.
(e)The matter resumed before Her Honour from 2:38pm to 2:50pm during which time Ms Grobtuch appeared on behalf of the Applicant. Ms Grobutch informed the Court that she had spoken with her client and he did not wish to assume the conduct of the Hague Convention proceedings. Attention of all parties then turned to the future conduct of the matter.
(f)Her Honour then stood the matter down so that the legal representatives for the parties (including the Applicant) could discuss the preparation of a consent Minute for the further conduct of the matter to be submitted to Her Honour.
(g)Following discussions between the parties’ legal representatives, a proposed Minute of Orders was then circulated by my client’s Counsel, Ms Renwick, to Counsel for the State Central Authority, Independent Children’s Lawyer and the Applicant’s solicitors, MsGrobtuch and Ms Sergi at Kennedy Partners at 3:50pm.
(h)By email received at 4:03pm from Ms Sergi from Kennedy Partners, it was confirmed that there was agreement to the Minute. Annexed hereto and marked with the letters “RRG-1” is a true copy of the said email.
(i)By email received at 4:10pm, Counsel for the State Central Authority confirmed agreement to the Minute.
(j)At 4:34pm my Assistant sent an email to Her Honour’s Associate, copied to all of the lawyers for the parties, attaching the proposed Minute of Orders consented to by all parties.
(k)The matter then resumed before Her Honour from 4:45pm to 4:56pm at which time Orders were made by the Court by consent and granting leave for the State Central Authority to withdraw from the proceedings.
I add to that sequence that the counsel for the State Central Authority, prior to formally seeking leave to withdraw, sought and obtained the permission of her Honour to confer with the father, despite him being under cross-examination at the time, to explain to him what the Authority had decided, and to advise him of his options, including to proceed with the application himself. That then occurred prior to the resumption of the hearing after approximately three hours at 2.38 pm when the father’s Australian lawyer advised her Honour that she had obtained instructions from the father that he did not wish to assume the conduct of the Hague Convention proceedings. The matter was then stood down to enable the parties and their legal representatives to negotiate and prepare Minutes of Order as to the future conduct of the proceedings. That exercise was undertaken, and her Honour was presented with Consent Minutes of Order at 4:45pm. Her Honour then made the orders at the request of all parties.
What that reveals is that there was nothing done by her Honour that could be interpreted as “forcing a decision” on the father, or forcing him “to withdraw mid cross examination with no ability to adjourn and properly consult with counsel”. In truth, it is readily apparent that if the father has any complaint to make, it could only be against his legal advisors, and certainly not the primary Judge.
In these circumstances the test is not satisfied, and there is no basis for leave to appeal to be granted if the Application for Leave to Appeal was able to be pursued by the granting of an extension of time.
However, if I am wrong about that, and it is possible that leave might be granted, I turn to the one ground of appeal. That reads as follows:
1. I was not awarded natural justice
a-I and US central authority received no prior warning to SCA Withdrawal
b-It was middle of the night/early morning in the USA
c-I was in the middle of testimony was not able to be properly informed as to my position
d-I was not offered option of adjourning and having time to come to a decision
e-I was not given full array of rights and options available to me such as starting a new trial privately or self representing
f-My consent to agree to withdrawal was pressured to be immediate and was not informed consent
g-An oral initiating application was made on my behalf without my consent
(As per the original)
Again, as can be seen, the complaint is that the father was not “awarded natural justice” and he provides seven particulars for that.
Plainly, this ground of appeal has no merit, and once again it is a complaint more appropriately directed to others, and perhaps his lawyers, rather than to the primary Judge.
With the first particular, that does not relate to anything that her Honour did. And, in any event, there is no evidence as to when either he or the US Central Authority received notice that the State Central Authority would be withdrawing. All we know is that counsel for the State Central Authority announced to her Honour at 11:52am on 5 August 2020, that her instructions were to seek leave to withdraw. Thus, there is no merit in the ground of appeal based on this particular.
As to the second particular, as was pointed out by counsel for the mother, that was the timing for every day of the hearing that had been proceeding before her Honour, including the three days or so of cross-examination of the father. In any event, again, this particular does not relate to anything that her Honour did, and there is no merit in the ground of appeal based on this particular.
With the third particular, that is simply not correct. I proceed on the basis that counsel for the State Central Authority, and/or the father’s own lawyers, advised him of his position, given that was the purpose of standing the matter down. There is no evidence to suggest otherwise. Accordingly, there is also no merit in the ground of appeal based on this particular.
As to the fourth particular, it is not for her Honour to “offer” the option of adjourning; it is for the father to make an application to that effect, and he did not. I also note again that the father was represented at all relevant times.
It is unclear what decision the father is suggesting he did not have time to consider. In any event, whether it was to adjourn, or to assume the conduct of the proceedings, or to consent to the orders made at the end of the day, I find that he had sufficient time to make any of these decisions, and there is no merit in the ground of appeal based on this particular.
With the fifth particular, again it was not for her Honour to provide any advice to the father. He had counsel for the State Central Authority to a limited extent, but more specifically his own lawyers to advise him. Thus, there is no merit in the ground of appeal based on this particular.
As to the sixth particular, the evidence does not bear that out, and yet again it is not something that can be sheeted home to her Honour. There is no merit in the ground of appeal based on this particular.
Finally, with the last particular, the evidence simply fails to establish that that even occurred, and in any event, it would not be relevant to anything that her Honour did, or did not do. Thus, once more there is no merit in the ground of appeal based on this particular.
Accordingly, even if leave to appeal could be granted, I am not persuaded that the ground of appeal has any chance of success.
The prejudice to either party depending on the outcome
If the application is granted, the mother would be seriously prejudiced. She would have to respond to the Application for Leave to Appeal and the appeal, and that would require time and resources to be expended, as well as the incurring of legal costs, whereas at the present time she can proceed on the basis that there is no Application for Leave to Appeal or appeal on foot.
On the other hand, if the application is dismissed, the father would not be able to proceed with his Application for Leave to Appeal and the appeal. There is also no appeal from a refusal to grant an application seeking an extension of time, although there is the possibility of making an Application for Special Leave to Appeal to the High Court of Australia, but that in itself is a difficult application to make, and the question here would be whether it was warranted, or, indeed, whether it would even be successful. However, the inability to proceed with the Application for Leave to Appeal and the appeal is significantly ameliorated by the fact that there is no merit in the Application for Leave to Appeal or the appeal if leave is granted. Thus, if time was extended, and the father pursued the Application for Leave to Appeal and the appeal, then almost certainly he would be unsuccessful. Thus, in reality there would be no prejudice to the father if the application is dismissed.
CONCLUSION
The consideration of those three principal factors informs the decision as to whether it is necessary to extend the time to do justice between the parties. Having found that there is no satisfactory reason for the failure to file a Notice of Appeal within time, and significantly, having found that there is no basis for leave to appeal being granted, and even if there was, the ground of appeal has no chance of success, and finally, that to allow the proposed appeal to proceed would prejudice the mother far more than the father, it is not in the interests of justice to grant the application, and it must be dismissed.
COSTS
On the basis that the application would be dismissed, the mother made an application for costs. She sought the amount of $11,130 calculated on an indemnity basis. Alternatively, she sought the amount of $4,837 calculated on a party/party basis. I note that those costs are limited to the solicitor’s costs given that senior and junior counsel appeared pro bono.
The father opposed any order for costs being made.
The first question is whether a costs order should be made at all.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) governs any application for costs whether it is in the context of an appeal or a first instance hearing, and relevantly provides as follows:
(1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant…
As can be seen, the primary position is that each party is to bear their own costs, but a costs order can be made where there are circumstances that justify it, and in determining that, regard has to be had to the factors set out in s 117(2A).
There is no question that there are circumstances here that justify an order for costs, given that the father has been “wholly unsuccessful in the proceedings” (s 117(2A)(e)).
In support of his opposition to any order being made, the father relied on his financial circumstances. He says that he earns USD 27,000 per annum working in special education, and apart from the usual living expenses he says that he has loan obligations to cover his legal fees. He also claims to have no assets of any significant value.
In contrast to this, the mother is the sole carer for the child of the parties, she lives with her parents, and she is in receipt of Centrelink benefits.
Although the financial circumstances of the father can be described as limited, there is clear Full Court authority that impecuniosity is not a bar to a costs order being made where there are circumstances which otherwise justify such an order (e.g. see D & D (Costs) (No.2) (2010) FLC 93-435), and that is the case here. The father brought an application which has ultimately has been wholly unsuccessful, and the mother has incurred legal costs in responding to that application.
Thus, there will be an order that the father pay the costs of the mother of and incidental to the Application in an Appeal filed on 22 December 2020.
The next question is on what basis should these costs be calculated; indemnity or party/party?
The ordinary rule is that an order for costs is calculated on a party/party basis, but indemnity costs can be awarded where there are exceptional circumstances that warrant the Court departing from the usual course (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; Limousin & Limousin (Costs) (2007) 38 FamLR 478; and Kohan & Kohan (1993) FLC 92-340).
Here, the mother argues that this was an “hopeless” application, and it should never have been brought. In the end result the father has failed to demonstrate any basis for this Court extending the time. His reasons for failing to file a Notice of Appeal in time were unsatisfactory, and there was no merit in the proposed Application for Leave or in the proposed appeal.
In my view, it is plain that the application was commenced and continued in circumstances where the father, properly advised, should have known that he had no chance of success. Indeed, the application should never have been brought, and I consider that the circumstances here are such that they warrant an award of indemnity costs. However, I am not persuaded that the amount of costs sought, comprising just solicitor’s fees, is appropriate.
Pursuant to r 19.18(1)(a) of the Family Law Rules 2004, this Court has a discretion to fix a specific amount for costs, and thus I propose to order that the father pay the mother’s costs fixed in the amount of $8,000.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 9 August 2021
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