Eagans and Rennell

[2019] FamCAFC 210

FAMILY COURT OF AUSTRALIA

EAGANS & RENNELL [2019] FamCAFC 210

FAMILY LAW – APPEAL – REINSTATE – Where the applicant seeks to reinstate his appeal deemed abandoned as a result of his failure to file appeal books within the time ordered by the Appeal Registrar – Where there is a reasonable excuse for the failure to file within time – Where it cannot be said that the appeal has no chance of success – Where the prejudice to the respondent outweighs the prejudice to the applicant but the justice of the case requires that the appeal be reinstated – Application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr Eagans

RESPONDENT: Ms Rennell

FILE NUMBER: MLC 8649 of 2016

APPEAL NUMBER: SOA 3 of 2019

DATE DELIVERED: 24 October 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland J

HEARING DATE: 24 October 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 14 December 2018

LOWER COURT MNC: [2018] FCCA 3564

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. The Notice of Appeal filed on 10 January 2019 be reinstated.

2. The said Notice of Appeal be referred to the Appeal Registrar for further directions to be made in relation to the completion of the appeal books, the obtaining of the transcript for that purpose, and to prepare the appeal for hearing.

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 Eagans & Rennell 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: MLC 8649 of 2016
Appeal Number:  SOA 3 of 2019

Mr Eagans

Applicant

And

Ms Rennell

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before the court today is an Application in an Appeal filed by Mr Eagans (“the father”) on 20 June 2019, seeking a number of orders.

2. The first two orders in effect seek assistance in obtaining the transcript of the hearing before the primary judge.  Pausing there, I have explained to the father that this Court does not have any funding to provide transcript to litigants in person.  Fortuitously though, this is a case where the transcript is available.  The primary judge ordered the transcript, and there is the ability for this Court to request that transcript to be provided for the purposes of the appeal, and that administrative process will now be put in place, such that a formal request will be made by the Appeal Registrar to the Principal Registrar of the Federal Circuit Court of Australia to obtain that transcript.

3. Thus, that deals with two of the three orders sought today.

4. The primary order sought is reinstatement of the father’s Notice of Appeal filed on 10 January 2019, which Notice was deemed abandoned because of the failure by the father to file appeal books in accordance with the orders of the Appeal Registrar.  What the father did was file appeal books which did not include the transcript.  His affidavit says that he could not afford to meet that cost, but as I have just indicated, that is no longer an issue, and the transcript can be provided.

5. The application to reinstate is opposed by Ms Rennell (“the mother”).

6. There are three factors which I have to have regard to in determining whether an appeal that has been deemed abandoned should be reinstated.  The first factor is whether there is a satisfactory explanation for the failure to file the appeal books in accordance with the orders of the Appeal Registrar.  Pausing there, I am satisfied that there is an adequate explanation for that, namely the inability of the father to purchase the transcript, but, to repeat, that is no longer an issue for the reasons I have already explained.

7. The second factor that I need to have regard to is the merits of the appeal.  As I have explained to the parties, I am not sitting here today as the Appeal Court hearing the appeal.  I have to, as best I can, make an assessment of the likely success or otherwise of the appeal, and I can only do that by reference to the documents that are before this Court, namely the judgment of the primary judge and the Notice of Appeal.  Having read those documents, I am not in a position to say that there is absolutely no chance of success.  If I was in a position to say that, then the application for reinstatement would be dismissed.  However, I have explained to the father that that does not mean that the appeal will succeed.  It simply means that there is enough to let it proceed as an appeal to be determined by the Full Court. 

8. The third factor to which I am required to have regard is the prejudice to the parties depending upon the result of the application.  There is prejudice on both sides.  The prejudice to the father is if the appeal is not reinstated, then that limits his opportunity to take the matter any further.  By that I mean there is no appeal to the Full Court from an order refusing the application, but he could if so advised seek special leave to appeal from the High Court of Australia.  However, in most circumstances, that is not a realistic option.

9. On the other side of the coin though, there is serious prejudice to the respondent if I reinstate the appeal.  The respondent has put to me today that she considers she has been, and continues to be, harassed by court proceedings instituted and pursued by the father, and she is wanting to bring those proceedings to an end.  I understand that sentiment, but unfortunately, and with respect to the mother, it is not a matter which would prevent reinstatement of this appeal.  Certainly, there is prejudice to her in the appeal being reinstated because she will have to deal with it.  That will mean time, resources, and maybe money in responding to it, but that is where the prejudice I can take into account lies.

10. The authorities are such that the overarching principle in these matters is that the Family Law Rules 2004 (Cth), which set up time limits, should not be used to prevent justice being achieved, and in assessing where the justice of the case lies, it is necessary to look at the factors I have identified so far, namely the reasons for the failure to file the appeal books in accordance with the orders of the Appeal Registrar, the merits of the appeal and the prejudice to the parties.

11. To repeat, I have found that there is a satisfactory explanation for the failure to file the appeal books in accordance with the orders of the Appeal Registrar.  In relation of the merits of the appeal, I cannot say that there is absolutely no prospect of success.  In terms of prejudice, the prejudice to the respondent in my view outweighs the prejudice to the applicant.  However, given what I have found in relation to the explanation for the failure to file and the merits of the appeal, in my view, the justice of the case requires that the application be granted.

I certify that the preceding eleven (11) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 24 October 2019

Associate: 

Date:  6 November 2019