DUARTE & MORSE
[2017] FamCAFC 158
•15 August 2017
FAMILY COURT OF AUSTRALIA
| DUARTE & MORSE | [2017] FamCAFC 158 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the appeal was deemed abandoned after the appellant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Merits of the appeal – Where it would be futile to extend time – Application dismissed. |
| Family Law Act 1975 (Cth) ss 67Z, 69ZN Family Law Rules 2004 (Cth) rr 2.04D, 7.04, 22.13, Schedule 2 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Duarte |
| RESPONDENT: | Mr Morse |
| FILE NUMBER: | SYC | 737 | of | 2014 |
| APPEAL NUMBER: | EA | 64 | of | 2017 |
| DATE DELIVERED: | 15 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 1 August 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 May 2017 |
| LOWER COURT MNC: | [2017] FamCA 350 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Spain |
| SOLICITOR FOR THE RESPONDENT: | Slater & Gordon Lawyers |
Orders
The application to reinstate Appeal EA 64 of 2017 against the orders of Le Poer Trench J made on 16 May 2017 is dismissed.
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 Duarte & Morse 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 64 of 2017
File Number: SYC 737 of 2014
| Ms Duarte |
Applicant
and
| Mr Morse |
Respondent
REASONS FOR JUDGMENT
On 16 May 2017 Le Poer Trench J made orders dismissing the Applications in a Case filed by Ms Duarge (“the applicant”) on 1 October 2014 and
11 December 2014.
The orders made were in relation to parenting proceedings between the applicant and Mr Morse (“the respondent”), concerning the parties’ three children born 3 August 2006, 21 July 2010 and 21 October 2012. As recorded in his Honour’s reasons the applications relevantly sought the following orders:
Restoration of former orders made 24th March, 2014, by His Honour Justice Le Pour [sic] Trench
Seeking Certiorari writ to quash “Form 4” filed 12th June, 2014, by [the then Independent Children’s Lawyer]; or, in the alternative, seeking a declaration of invalidity of “Form 4” filed 12 June, 2014, by [the then Independent Children’s Lawyer]
Seeking Certiorari writ to quash “Form 4” filed 13th June, 2014, by [the respondent]; or in the alternative, seeking declaration of invalidity of “Form 4” filed 13 June, 2014, by [the respondent]
On 13 June 2017 the applicant, who is a self-represented litigant, filed a Notice of Appeal against the primary judge’s orders dismissing her applications, seeking, in effect, the same orders she had sought before his Honour in the event that the appeal be upheld. On 15 June 2017 the Appeal Registry forwarded a letter to the applicant telling her of the obligation to file a draft appeal index by 11 July 2017. The draft index was not filed by this date and so by operation of r 22.13 of the Family Law Rules 2004 (Cth) (“the Rules”) the appeal was deemed abandoned from the close of business on 11 July 2017. The applicant was informed of this by way of letter from the Appeal Registry dated 12 July 2017.
The applicant now seeks that the appeal be reinstated.
Before considering the application for reinstatement it will be beneficial to give some background as to his Honour’s reasons for context.
Background
The parties have been engaged in parenting proceedings for several years. On 24 March 2014 the primary judge made orders providing for the children to live with the applicant and spend time with the respondent. The orders contained restraints on the applicant, which included not allowing the children to be “left in the care of [the applicant’s new partner] unsupervised by her”.
On 12 June 2014 the Independent Children’s Lawyer filed a Form 4, being a Notice of Child Abuse, Family Violence or Risk of Family Violence. The Form 4 set out details of concern relating to the safety of the children living in the same house as the applicant’s new partner.
On 13 June 2014 the respondent also filed a Form 4, stating a risk to the children arising from being in the presence of the applicant’s new partner.
On 10 July 2014 the matter came before Stevenson J and her Honour made orders on 25 July 2014 that the children live with the respondent.
On 1 October 2014 the applicant filed an Application in a Case seeking the reinstatement of the orders of 24 March 2014; that is, that the children would again change residence to live with her.
On 11 December 2014 the applicant filed another Application in a Case seeking that both of the Form 4 Notices be quashed by a writ of certiorari, or, in the alternative, be declared to be invalid.
These were the applications dismissed by his Honour on 16 May 2017. The current interim orders in place at this time were orders made by his Honour on 11 April 2016 which provided for the children to live with the respondent and permitted the applicant to have face-to-face time with the children, subject to specified requirements.
The final parenting proceedings were heard by his Honour from 26 June 2017 to 7 July 2017 when they were adjourned part-heard to 2 and 3 August 2017 for submissions. These dates having now passed, the parties are awaiting final judgment and orders to be made by the primary judge.
To give context and, perhaps, understanding of the thrust of the issue being argued, it is helpful to give some further detail in relation to the Notices of Risk filed.
Where an interested person (in this case both the respondent and the Independent Children’s Lawyer) alleges a child to whom the proceedings relate has been or is at risk of abuse, that person must file a notice. The form prescribed by the Rules is Form 4 (s 67Z of the Family Law Act 1975 (Cth); r 2.04D and Schedule 2 of the Rules). Section 67Z further provides that the notice must be filed in the proceedings and served on the person who it is alleged has abused the child, or from whom the child is at risk of being abused.
As a result of the filing of these Notices, a Registrar of the Court forwarded the Notices to the Director-General of the NSW Department of Family and Community Services (“the Department”) with a request that they prepare a report concerning the allegations contained in the Notices.
Having been notified, the Department applied to be joined as a party and subsequently became party to the proceedings.
It is important here to note that at no time after the filing of the Notices and including during the hearing before Stevenson J, did the applicant raise any challenge to the validity of the Notices filed.
The first challenge to the validity of the Notices came in the 11 December 2014 Application in a Case.
Application for reinstatement
In support of the application for reinstatement the applicant says that following the 10 day trial of the substantive proceedings she fell ill and was bedridden for several days. Due to her illness the applicant says she accidentally missed the deadline for filing the draft appeal index and it was not her intention to abandon the appeal. When the applicant became aware that the appeal had been abandoned she promptly applied to have it reinstated, filing her application for reinstatement on 19 July 2017.
The respondent opposes the application and argues that the appeal should not be reinstated because, in effect, it has no prospects of success.
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. Although that case dealt with an extension of time to appeal, the principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88). The central principle is that such applications should be allowed where to do otherwise may cause a substantial injustice. In Gallo v Dawson McHugh J said 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 … 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…
(References omitted)
It must be appreciated too, that in dealing with appeals that have been properly filed, but not appropriately prosecuted, the appeal will usually be reinstated unless some exception exists to the contrary. In Jackamarra v Krakouer (1998) 195 CLR 516 Brennan CJ and McHugh J said at [7]:
…It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, “must be investigated and decided in the manner appointed”. If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.
(Emphasis added, footnotes omitted)
As such, it is necessary to consider whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that it must be clearly shown that the appeal would fail before an applicant is denied the right to have his or her appeal heard.
Merits of the appeal
Challenges to the Form 4s - certiorari or declaration of invalidity
The applicant contends that the Notices filed were invalid because they did not comply with the Rules and thus the Court should have either quashed the notices or declared them invalid. Until that had been done, the applicant argued that the Court had no jurisdiction to proceed with a hearing which relied on the information contained in those Notices. That is, though framed as an argument as to a lack of compliance with the Rules, the real challenge is to the evidence led in the subsequent hearings in support of the allegations contained in the Notices and the joining of the Department as a party to the proceedings.
The challenges to the Notices, whether by way of an order in the nature of a writ of certiorari or declaration of invalidity are misconceived.
First, no complaint was made at the time of their filing. They formed part, but only part of the evidence before Stevenson J, and clearly any non-compliance was waived by her Honour.
Secondly, as his Honour made plain, there is no power which would permit his Honour either to quash or declare the notices to be invalid.
Thirdly, even if his Honour had made orders in accordance with those sought by the applicant, the result would not, as the applicant contends, result in all of the evidence led in and around the Notices to be invalid. The Notices merely serve as a vehicle through which an allegation may be raised and which may, and in this case did, prompt the intervention of the Department. His Honour noted that the respondent filed an affidavit in the proceedings before Stevenson J going to the allegations and the Department tendered documents relevant to that issue.
Fourthly, whether or not the Notices were compliant with the Rules did not affect the jurisdiction of the court to entertain parenting proceedings.
It was open to Stevenson J, had any challenge been made to the Notices, to disregard them and rely on the evidence otherwise before her on the issue.
I note in passing that the applicant contends that the Notices were noncompliant with the Rules in two respects. First, that they were not served on the applicant’s new partner, the person against whom the allegations were made, in a “timely fashion” and, secondly that they were not supported by an affidavit.
Neither of those complaints is made out in relation to the Notice filed on behalf of the respondent. A copy of the Notice was provided to the applicant’s new partner on 30 January 2015, within the twelve month period for service specified by r 7.04 of the Rules. Further, on the day on which the Notice was filed, 13 June 2014, the respondent also filed an affidavit in which he set out the evidence on which the allegation in the Notice was based.
It was conceded that the Notice filed on behalf of the Independent Children's Lawyer was not served the applicant’s new partner, nor apparently was an affidavit filed by the Independent Children's Lawyer in support of the Notice.
In any event, his Honour, when dealing with this issue found that, in the circumstances of this case, no prejudice was visited on the applicant’s new partner by reason of the non-compliance with the Rules in relation to that Notice.
However, as I have said, in fact, the challenge to the compliance of the Notices with the Rules is a vehicle by which the applicant seeks to challenge the evidence and therefore the validity of the parenting orders made after the Notices were filed.
Restoration of orders made on 24 March 2014
Thus, the applicant sought by way of her application filed on 1 October 2014 that the orders of 24 March 2014 be restored and, by necessary implication, all subsequent parenting orders set aside. The Notice of Appeal contends that his Honour “applied the wrong principle” in “declin[ing] to consider … prayer 5 of the [applicant’s] Application in a Case filed 1 October 2014”.
His Honour declined to consider this application at the time, noting that the final hearing of the matter was only some weeks away and that the applicant had not been exercising face-to-face contact with the children in accordance with the current interim orders. However, his Honour’s orders allowed the applicant to remake her application if the final hearing did not proceed as scheduled. In my view, in these circumstances this ground of challenge would not attract appellate intervention.
The foundational premise to the applications, being that if the Notices are by some means declared to have been invalid, then all of the evidence that was adduced in reference to the issues referred to in the Notices will, a fortiori, also be invalid and wrongly accepted, is misconceived and so too is the challenge to his Honour’s refusal to make that order.
It was open to his Honour to, in effect, ignore the Notices and determine the case on the evidence. There can be no force in the argument that the evidence, being properly adduced and relevant to the issues to be considered by the primary judge, was by reason of association with the Notices in some way “tainted” so as to render the evidence unable to be relied upon by the judge.
The applicant further contended that his Honour was in error in concluding that her application to set aside the orders made after 24 March 2014 was, in effect, an attempt to appeal those subsequently made orders. That conclusion was indeed open to the primary judge given the circumstances, but, in any event, his construction of what the applicant was seeking is not relevant to the appeal because as I have said the application is misconceived.
Conclusion
It is not to be overlooked that at the time of making the application to restore the appeal, the primary judge had completed hearing the parenting proceedings between the parties and was awaiting receipt of their submissions in the matter.
When pressed as to how there could be in those particular circumstances any utility at all in reinstating and pressing the appeal, the applicant contended that it would allow the Full Court to see that the filing of the Notices resulted in “systems abuse” and thus conclude invalidity of the process.
In Jackamarra, Gummow and Hayne JJ said at [33]:
...when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way.
In this case, all other things are not equal. There is no merit in the contended appeal and to reinstate it would not only be futile but would visit a significant injustice on the respondent in meeting the appeal.
The application for reinstatement of the appeal will thus be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
15 August 2017.
Associate:
Date: 15 August 2017
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