Gholke and Gholke - [2019] FamCAFC 64

FAMILY COURT OF AUSTRALIA

GHOLKE & GHOLKE

[2019] FamCAFC 64

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME TO FILE NOTICE OF APPEAL – Where the evidence as to why the applicant did not file within time is not challenged by the respondent – Where it cannot be said that there is no chance of success on appeal – Where even if there is the remotest chance of success that is sufficient to allow the appeal to proceed – Where the prejudice suffered by either party depending on the result tends to balance itself out – Where the justice of the case requires that the application be allowed – Time to file a Notice of Appeal extended.

Family Law Act 1975 (Cth) s 93A(2)
Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Ms Gholke

RESPONDENT:

Mr Gholke

APPEAL NUMBER:

WEA

2019

FILE NUMBER:

PTW

7003

2017

DATE DELIVERED:

16 April 2019

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland J

HEARING DATE:

16 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Ingleby

SOLICITOR FOR THE APPLICANT:

Carr & Co

COUNSEL FOR THE RESPONDENT:

Mr Hedges SC

SOLICITOR FOR THE RESPONDENT:

Dimond Family Lawyers

Orders

The time for the applicant to file and serve a Notice of Appeal against the order made by Chief Judge Thackray on 21 November 2018 be extended to the close of business on Tuesday 23 April 2019.
The Application in an Appeal filed on 1 February 2019 insofar as it seeks an order granting leave to adduce further evidence be referred to the Full Court hearing the appeal.
Appeal no. WEA 4L of 2019 be consolidated and heard together with appeal no. WEA 5 of 2019.
The directions hearing listed today before the Appeal Registrar in appeal no. WEA 5 of 2019 be adjourned to the first date available after the filing of a draft appeal index by the applicant in appeal no. WEA 4L of 2019 with the intention that both appeals be the subject of that directions hearing.
The applicant pay the respondent’s costs of and incidental to the Application in an Appeal fixed in the sum of TWO THOUSAND DOLLARS [$2,000].

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 Gholke & Gholke 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WEA 4L of 2019
File Number: PTW 7003 of 2017

Ms Gholke

Applicant

And

Mr Gholke

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is the hearing of an Application in an Appeal filed on 1 February 2019 by Ms Gholke (“the mother”) seeking a number of orders, but, primarily, seeking an order extending the time to file a Notice of Appeal against an order made by Chief Judge Thackray on 21 November 2018 dismissing an application filed by the mother on 8 November 2018 seeking to reopen the hearing of the matter that was before his Honour. His Honour had previously concluded the hearing, but had not yet made his final orders.
There are other orders sought in the application, namely that if time is extended and an appeal is allowed to be filed, that that appeal be consolidated and heard together with a separate appeal the mother has filed against the orders made on 4 January 2019. Just so the link is clear, those orders were the final orders made by his Honour in relation to the matter that was before him, and the hearing of which was sought to be reopened. The other order sought is an order pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) seeking leave to adduce further evidence, being the evidence set out in paragraphs 5 to 37 of the affidavit filed in support of the application before the court today.
On 21 November 2018, his Honour delivered ex tempore reasons for judgment, but those reasons were not available to the parties until 21 December 2018. Pursuant to the Family Law Rules 2004 (Cth) (“the Rules”), the mother had 28 days to file an appeal, if that was to be the case, following the making of the orders, namely those orders made on 21 November 2018. However, she failed to do that.
The mother has set out in her affidavit filed in support of her application, why she did not file a Notice of Appeal within that 28 day time period, and I do not propose to go into the detail of that, because the evidence set out in that regard is not challenged by Mr Gholke (“the father”).
The adequacy of the reasons provided for the failure to comply with the relevant time-frame is one factor that needs to be considered. However, that is not the only factor.
The principles that apply in applications to extend time are well known, and I need do no more than refer to the oft-cited High Court decision of Gallo v Dawson (1990) 93 ALR 479, and in particular, to what McHugh J said at 480 as follows:
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 Full Court cases, and I refer to two cases in that regard, namely McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, there are a number of factors to be addressed, and the overarching principle is to ensure that injustice is not visited upon a party as a result of a strict application of the Rules.
The three most significant factors in this matter are, the adequacy of the reasons for the failure to file a Notice of Appeal within time, the prospects of success of the appeal, because, of course, if there are no prospects of success, then there is little point in extending the time to allow an appeal to proceed, and the hardship or the prejudice that a party would suffer depending upon whether the application is granted or refused.
Turning then to the relevant factors in this case.
To repeat, I do not need to deal with the question of the adequacy of the reasons, and indeed, there have been no submissions in relation to the hardship or prejudice that either party may suffer, but I will mention that briefly in a moment.
The factor which has taken up almost all of the time in this hearing, is the prospects of success of the proposed appeal in the event that time is extended.
As is required, the mother has provided the court with a Draft Notice of Appeal, which is the Notice of Appeal she would want to proceed upon in the event that time is extended. There are two grounds of appeal specified in that Draft as follows:
1.The learned trial judge erred in dismissing the mother’s application to adduce further evidence by giving insufficient weight to the implications of the evidence for the father’s employment commitments in circumstances where those commitments were crucial to the consideration of the competing proposals of the parties.
2.The learned trial judge erred in dismissing the mother’s application to adduce further evidence by taking into account an irrelevant consideration, namely his impending retirement.
In relation to Ground 1, it seems to me that it is conceded, and to me it is obvious, that a central issue in his Honour’s decision was the father’s work commitments. As I read the documents, the application to reopen the hearing filed by the mother was centred on that. The father had provided her with, as she deposes to in paragraph 8 of her affidavit filed in support of this application, a working roster for the period between 4 December 2017 and 3 March 2019. She was provided with that roster on 10 November 2018, and that roster was handed up to his Honour at the hearing of the application to reopen, and became, it seems from the court file, Exhibit 2.
Some time was spent during the hearing today clarifying what the roster represented. At the end of that discussion, it seems to be, and for my part it is now obvious from Exhibit 2, that the roster that was provided to the mother is a combination of what I would describe as a work roster, and a roster of time that the father had available to spend with the child the subject of these proceedings.
Now, it is said on behalf of the father that there is no, and I emphasise “no”, prospect of success of this appeal. That submission is important, because, as the authorities recognise, and this application is similar in that regard to an application for summary dismissal of the proceedings, that even if there is the remotest chance of success, that is sufficient. Of course, at a hearing such as this, it is not open to this Court to be definitive as to whether an appeal will or will not be successful, because the material before this Court today is not the complete material that would be before the Full Court, when and if the appeal, if allowed to proceed, is heard. However, that said, if it can be seen that there is the remotest chance of success that is sufficient to allow the appeal to proceed. That is not to say that if that is established, anyone, and particularly an appellant, can take comfort that an appeal will be successful. That is not the test for the purposes of an application such as this.
The submissions in support of the father’s position, that there is no chance of success, in general, are that although the father’s working commitments were central to his Honour’s decision, his Honour was alive to what the father’s roster was, and the flexibility of it. In other words, there is no dispute that there was a basic position of eight days on, six days off, but that was not set in stone, and the father was not necessarily required to stick by that basic roster. There were times when he would spend time outside of that in Perth, and on holidays, and the like. As his Honour said in [14] of his reasons for judgment:
Accordingly, even if the mother’s view of the proposed new evidence, which I do not think is to be preferred, was correct, I do not consider acceptance of that evidence would impact, in a substantial way, on the ultimate findings that I made and would not affect the outcome of the proceeding.
The father relies primarily on that particular paragraph, in suggesting that a different roster would have made no difference to his Honour’s decision. However, with respect, I disagree with that submission. In my view, even if this is described as a weight challenge, and I am not convinced that that is what it is entirely, but considering it at that level, it seems to me that there is a sufficient difference between the evidence that was before his Honour at the hearing, compared with the roster that was sought to be presented on re-opening, to result in a finding that it cannot be said that there is no chance of success on appeal.
In relation to the third factor, namely the hardship or prejudice to the parties in the event of either a refusal or a grant of the application, there were no submissions directed to this factor, but in short, it often balances itself out in that obviously if the application is refused, then there is prejudice to the mother in that she will not be able to pursue the appeal. There is no appeal from a decision refusing the application, except by special leave to the High Court, and on a proportionate basis, that is not necessarily readily available. On the other hand, there would also be prejudice to the father if the application is granted, in that he will need to deal with the appeal, and as is currently the position, there is no appeal on foot.
In summary then, I find that this is a case where it cannot be said that there is no chance of success on appeal, and in my view, the justice of the case requires that the application be granted.

I certify that the preceding twenty (20) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 16 April 2019

Associate:

Date: 27 May 2019