GADOURY & KOLLER
[2016] FamCAFC 160
•17 August 2016
FAMILY COURT OF AUSTRALIA
| GADOURY & KOLLER | [2016] FamCAFC 160 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application seeking an extension of time to file a Notice of Appeal – Where the orders provide for the father to have certain overnight time with the child – Where orders were pronounced in court but it is submitted they are inconsistent with the final orders – Where there is an adequate explanation for the delay and some merit to the proposed appeal – Application allowed. FAMILY LAW – COSTS – Where both parties are self-represented and have not incurred costs – No order as to costs. |
| Family Law Act 1975 (Cth) Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Gadoury |
| RESPONDENT: | Ms Koller |
| FILE NUMBER: | BRC | 8782 | of | 2015 |
| APPEAL NUMBER: | NA | 52 | of | 2016 |
| DATE DELIVERED: | 17 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 17 August 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 May 2016 |
| LOWER COURT MNC: | [2016] FCCA 1434 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Gadoury (in person) |
| FOR THE RESPONDENT: | Ms Koller (in person) |
Orders
The Application for an extension of time to file Notice of Appeal NA52 of 2016 is allowed.
The Notice of Appeal NA52 of 2016 be filed by 4.00pm today.
No order as to costs.
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 Gadoury & Koller 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 BRISBANE |
Appeal Number: NA52 of 2016
File Number: BRC8782 of 2015
| Mr Gadoury |
Applicant
And
| Ms Koller |
Respondent
REASONS FOR JUDGMENT
Mr Gadoury (“the father”) filed an Application in an Appeal on 18 July 2016 seeking an extension of time to file a Notice of Appeal from parenting orders made by Judge Vasta on 16 May 2016. Pursuant to r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”), appeals must be filed within 28 days from the date the orders appealed from were made. The father was therefore approximately one month out of time.
The Application to Extent time to Appeal
Background
The father and Ms Koller (“the mother”) have one child together, born mid 2013 (“the child”). The parents separated on 23 March 2015, with the mother remaining as the primary carer of the child.
The reason for the application before Judge Vasta was the father’s desire to spend more time with the child. Prior to the orders, the child was spending a Tuesday and Thursday night with the father (but returning home to the mother as she fell asleep) and some time during the day on Sundays. The trial judge summarised the issue before him as “how much time ought the father spend with the child, given her tender years, and what sort of road map ought the Court take.”
Reasons of the trial judge
Each parent was described by the family report writer as having cared for the child “extremely well”. The family report writer therefore recommended that the child would be able to cope with overnight time with the father, and recommended that such overnight time occur on either the Tuesday or Thursday night the child already spent with the father. The trial judge favoured this arrangement, noting:
12.For the reasons that I explained during the submissions, I was of the view that the mid-week arrangement is better simply because [the child] is, at this time, spending time with her father at a time where she is close to going to sleep. By her staying with the father overnight, it would allow her to naturally understand that the father’s house is also a place that she can go to sleep overnight and this would be somewhat more comfortable for her.
His Honour set out the relevant legislation. His Honour was careful to record at [26] that both parents acknowledged it was important for the child to have a meaningful relationship with each of them. Further, the trial judge commented:
28....
(b)… To the credit of both these parents, it seems to me that they really have put [the child] front and centre at the forefront of their lives, and they are ensuring that the best interests of [the child] are well and truly thought of;
His Honour concluded that equal time would not be appropriate at this stage, and it was not an arrangement either of the parties were seeking. The judge considered that substantial and significant time would be practicable, but the “issue is whether it would be in the child’s best interests to do so.”
The trial judge concluded that an order for overnight time once a week, during the week and overnight time each alternate weekend was appropriate. Further orders were made for when the child grew older, but they are not relevant here or the subject of the proposed appeal.
Principles for an Extension of Time
As noted at the outset of these Reasons, a notice of appeal must be filed within 28 days of the date of the order being appealed (per r 22.03 of the Rules). Rule 1.14 enables a party to apply to shorten or extend a period of time that is fixed under the Rules. There is otherwise no further guidance in the Rules or the Family Law Act 1975 (Cth) relating to extensions of time to file a notice of appeal.
Reference is often made to Gallo v Dawson (1990) 93 ALR 479, at 480 – 481 per McHugh J, for the principles relevant to granting an extension of time. The central consideration is whether an extension would be necessary to effect justice between the parties. Generally the following matters are considered:
a)Whether there is an adequate explanation for the delay;
b)The proposed grounds of appeal having some merit; and where appropriate,
c)That any prejudice to the respondent to the application can be compensated by an order for costs.
In his draft Notice of Appeal annexed to the affidavit filed 18 July 2016, the father notes he is appealing the following order made by Judge Vasta:
(2)That the child spend time with the father at all times as can be agreed and failing agreement as follows:
…
(b)From 12 May 2017:
(i)For one overnight per week, being after day-care Tuesday to before day-care Wednesday OR after day-care Thursday to before day-care Friday;
(ii)On the alternate day, after day-care to 6.45pm with the mother to collect the child from the father’s residence; and
(iii)From 4.00pm Saturday to 4.00pm Sunday each alternate weekend.
The essence of the father’s appeal is that the judge said he was going to make an order providing for overnight time every weekend, but that was not the order made.
The father’s proposed grounds of appeal are as follows:
1.His Honour erred in making an impermissible variation to the substance of the ex tempore Orders by adding the unspoken words ‘each alternate weekend’ to written Order 2(b)(iii) ‘From 4.00pm Saturday to 4.00pm Sunday’, which did not reflect his intent at the time the Orders were pronounced.
2.His Honour erred in denying procedural fairness in making the variation described in Ground 1, without formally recording the variation thereby making it more difficult to establish the current grounds for appeal.
3.His Honour erred in failing to correct the error referred to in Ground 1 when it was brought to his attention by an email from the appellant to Chambers on 20 May 2016, and again by oral submission from the appellant when the matter was relisted for an explanation of the Orders in court on 15 June 2016.
If the father’s appeal succeeded, he would seek to amend current Order 2(b)(iii) to “From 4.00pm Saturday to 4.00pm Sunday.”
The father indicated that should leave be given he intended to add another ground of appeal.
In his affidavit filed 18 July 2016, the father explains the reasons for delay in attempting to file the Notice of Appeal. The father initially attempted to correct what he perceived to be an error in the orders by applying for a correction through the slip rule in an email to the associate to his Honour. On 30 May 2016 the father received an email from the associate confirming that the words “each alternate weekend” were not pronounced, but were apparently intended by his Honour.
The father then sought to resolve the matter by consent by emailing the mother on 23 May 2016, but did not receive a reply. On 24 May 2016 the father listened to the audio of the hearing before Judge Vasta.
On 1 June 2016 the father was granted leave to purchase the transcript, he received the estimate on 6 June 2016 and made payment on 7 June 2016. On 8 June 2016 the father was advised that the matter had been relisted for 15 June 2016 so the orders could be explained by his Honour. On 15 June 2016 the father orally maintained his position that Order 2(b)(iii) was incorrect. On 17 June 2016 the father advised the Registry Manager that he still disputed the orders. On 1 July 2016 the father followed up when the audio transcript would be made available, which occurred on 4 July 2016.
Upon listening to the audio, the father was re-affirmed in his belief that the trial judge said “every week” and not “alternate weekends”:
11.… His Honour Judge Vasta clearly stated in the audio transcript the words ‘every week’ in regard to the time from 4.00pm Saturday to 4.00pm Sunday in response to a question on the exact issue in dispute. His Honour also clearly stated and explained the two overnights per week from 12 May 2017 until 26 January 2019, making his intent at the time of pronouncing the Orders perfectly clear and inconsistent with the written Orders.
The child was in the father’s care on 5 July 2016, and then he was away working from 6 July 2016 to 9 July 2016. The father attempted to file his Notice of Appeal on 11 July 2016, upon which he was advised he would need to file an Application. This was done promptly on 18 July 2016.
The mother is of the view that the orders are correct and to that extent would opposed leave being granted.
It is clear that the delay is explained. It is also apparent that there may be some merit in the appeal, if the father’s interpretation of the audio transcript is correct. The father would of course need to put this material before the Full Court to substantiate his claim. It is appropriate to grant the father leave to file his Notice of Appeal out of time.
Costs
As the parties represent themselves there is no order as to costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 17 August 2016.
Associate:
Date: 17 August 2016
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