FIRE & FIRE
[2011] FamCAFC 109
•27 April 2011
FAMILY COURT OF AUSTRALIA
| FIRE & FIRE | [2011] FamCAFC 109 |
| FAMILY LAW - APPLICATION IN AN APPEAL – wife seeks extension of time to file an appeal against orders made in February 2010 – orders expressed to be by consent – wife through her counsel advised that she did not oppose orders – orders supported by independent children’s lawyer and husband asked that they be made – application opposed by husband – rule 22.03 provides that Notice of Appeal must be filed within 28 days after order appealed from is made – Notice of Appeal not filed until March 2011 – wife says not in a fit mental state to address the issue of filing Notice as a result of the hearing and circumstances surrounding it being traumatic for her - appropriate course of action is for the wife to file an application seeking to vary the orders of February 2010, which the wife has now done – appropriate course underway which will be completed with a final hearing in July 2011 – application refused – little or no likelihood of success in relation to the proposed appeal – application dismissed. |
| Family Law Act 1975 (Cth) ss 94AAA(1), (5), (10), (11), (12); r 22.02 and 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 McMahon and McMahon (1976) FLC 90-038 Tormsen and Tormsen (1993) FLC 92-392 Rice and Asplund (1979) FLC 90-725 |
| APPELLANT: | MS FIRE |
| RESPONDENT: | MR FIRE |
| FILE NUMBER: | MLC | 12680 | of | 2007 |
| APPEAL NUMBER: | SA | 26 | of | 2011 |
| DATE DELIVERED: | 27 April 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 27 April 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | NA |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Grant |
| SOLICITOR FOR THE RESPONDENT: | Ms Marco |
Orders
The Application in an Appeal filed by the wife on 28 March 2011 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Fire & Fire is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA26 of 2011
File Number: MLC 12680 of 2007
| MS FIRE |
Appellant
And
| MR FIRE |
Respondent
EX-TEMPORE REASONS FOR JUDGMENT
Introduction
I have before me an Application in an Appeal filed on 28 March 2011 by the wife. In that application, the wife seeks a number of orders. However, the only order in respect of which the application has been accepted by the Registry is order number 2 in which the wife seeks that an extension of time be granted to file an appeal against the orders made on 8 February 2010.
Those orders were made by Turner FM and they were orders expressed to be by consent. It is common ground though that what happened on the day was that minutes of order were presented to his Honour, ostensibly through the independent children’s lawyer. The husband, who appeared in person, asked his Honour to make those orders, supported by the Independent Children’s Lawyer. The wife was represented by counsel at the time and her counsel advised his Honour that the wife did not oppose those orders being made, and on that basis, understandably, the Federal Magistrate recorded the orders as being made by consent.
The Application in an Appeal is opposed by the husband.
By way of brief background, 8 February 2010 was the fourth day of a hearing before Turner FM in this matter where his Honour was dealing with applications by the parties for parenting orders and there were also financial issues in dispute and particularly child support. The hearing commenced before his Honour on 2 February, continued on 3 February and 4 February, and then the matter was called on again on 8 February to continue, and it was early on that day that the minutes of order that I have just referred to were presented to his Honour.
The orders that were made comprise extensive parenting orders as well as orders in relation to child support.
The application before me today is supported by an affidavit of the wife filed on 28 March 2011.
There is also what is described as a further proposed Notice of Appeal which was filed on 6 April 2011 and I take that to be the Notice of Appeal that the wife wishes to proceed on if she is granted an extension of time. I have shown that document to the wife today and she has confirmed that that is the case.
I note that there is also a further very short affidavit filed by the wife on 6 April 2011, presumably filed in support of this application. I have read that affidavit and its annexures and I fail to see that it has any relevance to the issue which is the subject of the application that I am dealing with today. It does repeat some of the material which is in the earlier affidavit particularly as to alleged bias by the independent children’s lawyer and counsel for the independent children’s lawyer, and it refers again to what is alleged to be the involvement of the husband’s current partner in these proceedings. The affidavit also sets out some detail about the wife’s current financial circumstances and why she is not able to afford legal assistance.
In any event, I confirm that I have difficulty in understanding the direct relevance of that affidavit to the application that is before me today.
The Law
The relevant sections of the Family Law Act 1975 (Cth) that apply are
s 94AAA(1), (5), (10), (11) and (12) and the relevant rules from Chapter 22 of the Family Law Rules 2004 (Cth) are rule 22.02 and rule 22.03. I set out those sections and rules as follows:
s 94AAA
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Magistrates Court exercising original jurisdiction under this Act, or
(b)a decree or decision of a Federal Magistrate exercising original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
…
(5)An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b)such further time as is allowed in accordance with the standard Rules of Court.
…
(10) Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1A); or
(b)for leave to amend the grounds of an appeal under subsection (1) or (1A); or
(c)to reinstate an appeal under subsection (1) or (1A) that, because of the standard Rules of Court, was taken to have been abandoned; or
(d)to stay an order of the Family Court made in connection with an appeal under subsection (1) or (1A); or
(e)for an extension of time within which to file an application for leave to appeal; or
(f)for security for costs in relation to an appeal; or
(g)to reinstate an appeal dismissed under a provision of the Rules of Court; or
(h)to adjourn the hearing of an appeal; or
(i)to vacate the hearing date of an appeal; or
(j)to expedite the hearing of an appeal;
may be heard and determined by a single Judge or by a Full Court.
(11)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12)An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Rule 22.02
(1)A person may start an appeal by filing a Notice of Appeal:
(a)for an appeal from a court of summary jurisdiction other than a Family Law Magistrate of Western Australia – in the registry of a Family Court that is closest to the court of summary jurisdiction that made the order appealed from; and
(b)in any other case – in the Regional Appeal Registry.
(2)If an appeal cannot be started without the leave of the court, leave must be sought in the Notice of Appeal.
Rule 22.03
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 importance of rule 22.03 is that it provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Now, that did not happen in this case and that is why the wife needs to make an application for an extension of time.
The law in relation to applications for extensions of time is well settled. The High Court case which is often cited is that of Gallo v Dawson (1990) 93 ALR 479 and, in particular, I refer to what 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: 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.
That decision has been followed in a number of decisions of the Full Court of this Court including in such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what those cases tell me, and, in particular, Gallo v Dawson, is that there are a number of relevant factors which need to be addressed, such as whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of the application. But the overarching principle is to ensure that injustice is not visited upon primarily the applicant, but also the respondent.
Discussion
Addressing the relevant factors arising in this case, there is first the question of delay and the explanation for that. Of course, as I have said, a Notice of Appeal was not filed within the requisite 28 days and it was not until 28 March 2011 when the application seeking an extension of time was filed.
In terms of the wife’s reasons for delay, they are set out in her affidavit filed on 28 March 2011 and, in particular, in paragraph 2 as follows:
An appeal was not made by myself within the 28 days of those orders for many reasons:
a)emotional shock, fear and distress prior, during and after that court hearing exacerbated by the continued harassment and intimidation by the exhusband during and after those proceedings eg being cross examined by him, the power imbalance with [Ms L] and the ICL, threat to the children’s safety and wellbeing;
b)Post Traumatic Stress / Anxiety, the emotional shock, distress from the continued ‘cycle of violence’ ie the feeling of degradation and domination by the exhusband at: having to fulfill the legal requirement of seeing a psychiatrist, the difficulties and strenuous efforts made in following the court orders relating to seeing a psychiatrist eg the exhusband refused to help with the cost of the psychiatrist fees then he sent a legal letter in May 2010 regarding this;
c)no recall of being advised on the option of appealing within 28 days, not having the money to obtain legal advice and not being able to get assistance from legal id (due to my car being worth over $11K);
d)being the primary carer of 3 young children, not having the support of family;
e)going to strenuous efforts to fulfill the court orders in regard to the psychiatrist which included the help of general practitioners such as [Dr H] (International Expert on Domestic Violence) to assist;
f) the stress and difficulties of ongoing financial circumstances.
In summary the wife says that the hearing which commenced on 2 February 2010 and concluded on 8 February 2010, and the circumstances surrounding it, were so traumatic to her that she was not in a fit mental state to address the issue of filing a Notice of Appeal within the requisite 28 day period. That state in respect of her inability to file documentation extended until she was able to file her application in an appeal on 28 March 2011.
The wife deposes to the stress and anxiety that she suffered and the emotional shock, as she describes it. She deposes to her attempts to ensure that the order of 8 February 2010 was complied with, coupled with the need for her to devote her time and attention to the three young children of this marriage.
I note that the wife was represented at the hearing which culminated with the orders made on 8 February 2010. However, there is a Notice of Ceasing to Act filed on 23 February 2010, which of course was within the 28-day period.
The next relevant factor which I need to address is whether there is a substantial issue to be raised on appeal, and I must say that it is here where I have the most difficulty with the wife’s application. As I have referred to, there is a further proposed Notice of Appeal filed on 6 April 2011 which is intended to be the Notice of Appeal going forward in the event that an extension of time is granted. This document has been prepared by Ms Fire herself without, presumably, any legal assistance and that is obvious because it is quite difficult to discern what the issues in the appeal are. Ms Fire has also completed Part C of the document, which is totally unnecessary given that the orders were final orders and leave to appeal is not necessary. However, I have read that and it does provide an insight into what the complaints are that Ms Fire has in relation to the orders that were made.
The grounds of appeal set out are somewhat unintelligible, I am sorry to say. They primarily go to matters which appear to arise subsequent to the making of the orders. What the wife needs to appreciate is that an appeal is against orders made at a particular point in time, and what happens subsequent to those orders is irrelevant to the appeal unless there is an application to lead further evidence, and there is no such application here.
Putting that issue aside, the immediate problem that presents itself for Ms Fire is that this was a consent order. Certainly, because of the nature of the orders, the Federal Magistrate had to bring his own assessment to bear in making the orders, and he still needed to be satisfied that the orders were in the best interests of the children. However, he was faced with a scenario of the father consenting, the independent children’s lawyer promoting these orders, the mother not opposing and he having heard extensive evidence both from the parties and also from the Family Consultant. At the end of the day, his Honour had no hesitation in making the orders, and I say that because I have had the benefit of reading the transcript of the hearing on 8 February 2010.
In any event, I am, unfortunately, struggling to find anywhere in the grounds of appeal where there are errors alleged to be made by the Federal Magistrate. It seems that the complaints that the wife has are against her own lawyer, against the independent children’s lawyer, against the husband, and against his partner. In other words, everybody but the Federal Magistrate, and it is not possible to successfully appeal against orders made by a Federal Magistrate by complaining about the conduct of the lawyers and the parties involved.
Thus, I fail to see how there is any likelihood of success of an appeal in the terms of the Notice of Appeal which the wife will pursue in the event that she is granted an extension of time.
As I have also attempted to explain to the wife today, given the complaints that she is making, that the appropriate course, was for the wife to not seek to appeal against the orders, but to file a further application seeking to vary them because of change of circumstances or because she felt she was unfairly treated by her lawyers, that there was a conspiracy between her lawyers and the independent children’s lawyer and the husband. Indeed, I note that that is what the wife has done, namely, on 20 January 2011 she filed an initiating application seeking to vary almost all of the orders made by the Federal Magistrate on 8 February 2010, and, in my view, that was the proper course for her to take. That application has been dealt with, together with an application in a case filed by the wife on 31 January 2011, by the Federal Magistrate on 22 February 2011 and the husband has filed a response. The Application and the Response have been set down for hearing before the Federal Magistrate in July 2011 when these issues that the wife wishes to raise about what has happened since the order, and the need to change the orders, and also, if she is minded still to pursue issues that occurred at the time with the lawyers, are better aired.
In terms of other factors that are relevant to this application, nothing really has been put to me about the history of the proceedings. With the conduct of the parties, obviously the wife is making a number of allegations against the conduct of the father, alleging domestic violence historically and indeed continuing, but that is not conduct which is relevant to the application before me today and it does not assist in me finding in favour of the wife in terms of her application today.
There are the consequences for the parties of the grant or refusal of the application. There are obvious consequences to both parties. If I grant the application that would mean the appeal would be able to proceed and that will clearly impact upon the husband. He will then have to address that appeal. He would presumably have to instruct his legal advisers to respond appropriately, and there would be both time and money involved in that exercise.
On the other hand, if I refuse the application, then there are serious consequences for the wife in that the wife would not be able to pursue an appeal against the orders made on 8 February 2010, and there is no appeal from such a decision. There is, though, the ability to make an application for special leave to the High Court but that in itself is a difficult application to make and the question is whether it would be warranted, or indeed even successful in a case like this.
Although that is the position the wife would find herself in if I refuse this application, it seems to me that it is not such a consequence which would lead me to grant the application because, as I say, and to repeat, it seems to me that the appropriate course for the wife is, rather than appeal against the orders of 8 February 2010, to do what she has now done and file an application seeking to vary those orders. I also note that the husband has not raised any opposition to that application filed on 20 January 2011 on the basis of the principles of the case of Rice & Asplund (1979).
Thus I am not so concerned, in terms of refusing this application, that that would mean the wife would not be able to appeal against the orders of 8 February 2010.
Now, all that I have said, and the factors that I have addressed, leads to the overarching principle which is, of course, where the justice of the case lies. In that regard, it seems to me the most significant factor in favour of refusing the application is the fact that there is little or no likelihood of success of the proposed appeal for the reasons that I have briefly outlined. But also, a factor of almost the same significance is what I have just referred to, namely, what I consider to be the more appropriate course which is underway and will be completed with a final hearing in July 2011.
Thus I propose to dismiss the application.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 27 April 2011.
Associate:
Date: 19 May 2011
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