GILVRAY & MELLAND
[2020] FamCAFC 195
•30 July 2020
FAMILY COURT OF AUSTRALIA
| GILVRAY & MELLAND | [2020] FamCAFC 195 |
| FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the orders sought to be appealed are interim orders – Where the final hearing is listed for two days in the first week of September 2020 – Where even if the applicant was successful in her application it is a physical and practical impossibility for the appeals to be listed, heard and determined prior to the final hearing in September – Where the worst thing that could happen in the best interests of the child is for the final hearing to not take place – Where the application is futile – Where the explanation for the failure to file Notices of Appeal within time is inadequate – Where there is absolutely no merit in any of the proposed appeals sought to be pursued – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Gilvray |
| RESPONDENT: | Mr Melland |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Hutchings |
| APPEAL NUMBER: | SOA | 8 | of | 2020 |
| FILE NUMBER: | PAC | 5421 | of | 2018 |
| DATE DELIVERED: | 30 July 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 30 July 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 13 June 2019 4 July 2019 |
| LOWER COURT MNC: | NA – Transcript only |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Order
The Application in an Appeal filed on 10 February 2020 be 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 Gilvray & Melland 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).
| APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 8 of 2020
File Number: PAC 5421 of 2018
| Ms Gilvray |
Applicant
And
| Mr Melland |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Before the court today is an Application in an Appeal filed by Ms Gilvray (“the mother”) on 10 February 2020. There are a number of orders sought in that application, but the only order which this Court can have any regard to, and deal with, is what is described as order number 1 on the additional page of the orders sought, and that order seeks an extension of the time to file all Notices of Appeal. Given that, I strike out from the application all other orders sought.
Mr Melland (“the father”) opposes the application.
In support of the application, there is an affidavit also filed by the mother on 10 February 2020. In that affidavit there is a combination of handwritten documents and typed documents, and doing the best I can, it seems that the explanation of the applicant for failing to file Notices of Appeal within time is that she was unaware that she could appeal. There are other matters deposed to in that affidavit and, specifically, there are 15 paragraphs under the heading “Reasons why an extension should now be granted”. None of the contents of those paragraphs is relevant to an application for an extension of time, and I disregard them entirely.
There is a document which comprises part of this application which is a partially printed and partially handwritten document headed “NOTICE OF DEFENCE”. That is a document which also has no relevance whatsoever to the application before this court, and I strike it out.
The orders that are the subject of the appeals, if allowed to proceed, are orders made, first, by Judge Mercuri on 13 June 2019, then orders made by Judge Burchardt on 4 July 2019, 25 November 2019 and 29 November 2019 respectively. As is required, the mother has filed four Draft Notices of Appeal in relation to the orders made on those four dates.
In terms of what else is before this Court in relation to each of those orders, there are no discrete reasons for judgment provided by the two judges referred to, but I have the transcripts of the hearings that took place before those two judges on the relevant dates.
Turning then to what I consider to be the most relevant and important issue in relation to this application, namely that [in early] September 2020, there is to be a final hearing of the parenting issues as between the parties, and that is listed before Judge Burchardt with an estimated hearing time of two days. I have confirmed with the parties today that that is the date of the final hearing, and that it is proceeding.
The relevance of that date is this. The orders the subject of this application are, for want of a better description, interim orders. I use that phrase advisedly because some of the orders, are not interim orders, they are, for example, orders adjourning the matter to future dates. In any event, the subject matter of each of those hearings on those respective dates was the ongoing interim situation in relation to parenting issues.
As I put to the mother, even if she was successful today in persuading this Court that she should have extensions of time to file the four Notices of Appeal, it is a physical and practical impossibility for those appeals to be listed, heard and determined, prior to 3 September 2020. Thus, what that does, is render this application futile because, of course, what will be dealt with at the final hearing is precisely the matters which are the subject of the orders now sought to be appealed against, but which are made on an interim basis.
For example, there is an airport watch list order made on 13 June 2019, and there is an order in relation to supervised time between the father and the child the subject of the parenting proceedings, and the mother’s position today is that she challenges those orders. However, they are plainly matters which will be the subject of the final hearing, and the worst thing that can happen in this matter, in the best interests of the child, which I would hope both parties have at the forefront of their minds, is for the final hearing not to take place as listed, and for all issues in dispute between the parties not to be aired and determined on a final basis. If, of course, these appeals were allowed to proceed, any result could still only be an interim order. There would still need to be at some time in the future, and heaven knows when, given the unfortunate state of the court lists at the moment, a final hearing.
Thus, in my view, to repeat, it is futile for this application to proceed.
Despite this, the mother has indicated that she still wishes to proceed with the application. However, she has not been able to give this Court a sensible and reasonable answer to the question, why she would be pursuing the application in the circumstances that I have outlined. Thus, given that in my view this application is futile, I will be dismissing the application for that very reason.
That said, it is important to at least refer to the Draft Notices of Appeal which are sought to be pursued if an extension of time is granted. I also consider it necessary, because the mother is without legal representation, as is the father, to say something about the merits of the application which is before this court.
It is unfortunate that neither party, but more particularly, the mother, does not have legal representation because, if she did, I suspect that we would not be here today hearing this application. That cannot be helped though, the mother does not have legal representation, and I understand and accept that she has done the very best that she can in presenting this application, but unfortunately it is not sufficient to enable an order to be made as sought by her, and for this purpose I put aside for the moment the futility of the application.
With an application seeking an extension of time, there are three primary matters that need to be addressed. First, the explanation for the failure to file the Notices of Appeal within time, secondly, the merits of the appeals, and thirdly, the prejudice to the parties.
In relation to the first matter, I have referred already to what appears to be the explanation that the mother gives in her affidavit, however, I do not accept that as an adequate explanation. For her to simply say, as she does, “I was not aware that I could appeal,” is not sufficient. She is without legal representation, but the onus is still on her, in those circumstances, to ascertain what the position is in relation to the proceedings that she has brought.
There is an oft-cited quote from a judge of the High Court of Australia, namely McHugh J, in Gallo v Dawson (1990) 93 ALR 479 at 481, where his Honour was dealing with an application for an extension of time, and what his Honour there said was significant, and it is this, “[l]ack of legal knowledge is a misfortune, not a privilege”. That applies in this case.
I add that there is nothing in the affidavit which indicates to this Court what enquiries, if any, the mother made in relation to what her options were, what advice she sought, and from whom, and when it was that she came to be aware that she could appeal. The affidavit is entirely deficient in those respects.
Thus, I find that there is no adequate explanation for the failure to file Notices of Appeal within time. And to be clear, we are not talking about one Notice of Appeal, we are talking about four Notices of Appeal, against four orders, spread over five to six months.
The final thing I will say about that is, the application was filed on 10 February 2020. The last order the subject of any proposed appeal was made on 29 November 2019. There is no explanation of when in that period the mother became aware, if this is when it happened, of her ability to appeal, and no explanation of the delay in relation to filing the application that is now before this Court.
Turning to the second major factor, the merits of the appeals.
The position is, if it can be found that there is absolutely no merit in any of the proposed appeals, then for that reason alone, the application should be dismissed because, of course, if the application was allowed and those appeals were to proceed, the first thing that would happen with them is, they would be dismissed for lack of merit. Again, that would be an exercise in futility. And for my part, having read the Draft Notices of Appeal and the transcripts of the hearings before each of the two judges mentioned above, there is no merit in any of the proposed appeals.
The grounds of appeal are, unfortunately, difficult to follow, but that is a consequence of the mother not having the assistance of any legal representation, so what this Court does in those circumstances, is do the best it can, and that is what I have done in relation to looking at each of these Draft Notices of Appeal.
I will emphasise why I have come to that finding by referring by way of example to one of the Draft Notices of Appeal, namely the Notice against the orders made on 25 November 2019.
The orders made on that day, in summary, provided for the matter to be adjourned to 29 November 2019, and to explain that, on 25 November 2019, the mother failed to attend the hearing and his Honour, instead of making orders in the absence of the mother, adjourned the matter to 29 November 2019, and ordered that the mother attend on that day. That is also the date when the primary judge adjourned the matter for final hearing to 3 September 2020. There is also an order about the setting down or hearing fee for that hearing. Thus they are the orders, namely an adjournment, a listing of the matter for final hearing, the mother to attend on the next hearing date, and the mother seeks to appeal against those orders.
Looking then at the mother’s Draft Notice of Appeal, the grounds of appeal cannot be described in that way; what we have is a narrative. The tenor of that narrative is the mother putting forward her explanation for not attending the court on 25 November 2019, for example, she went to the wrong court, she phoned the court, she spoke to a registrar, she emailed the court to apologise about not attending, and so on. Plainly, there is no basis there to establish any appealable error by the primary judge in the orders that he made. It is a nonsense appeal. It is a waste of this Court’s time to even have to consider an application for an extension of time for such an appeal to be filed. That perhaps gives the flavour of the appeals that the mother wishes to pursue, subject to obtaining an extension of time.
However, to emphasise that, I will go to the proposed appeal against the orders made on 13 June 2019.
The orders made on that day were in summary, the matter was adjourned to 4 July 2019 to Judge Burchardt, who is the judge who has had the carriage of this case. There were then orders made restraining the parties or either of them from removing the child from the Commonwealth of Australia, and the necessary orders about the Australian Federal Police and the Marshal taking appropriate steps to give effect to that injunction, and requesting the Australian Federal Police to place the name of the child on what is called the airport watch list. Then there were orders made about the parties doing all that was necessary for them to be placed on a waiting list for supervised time at a community children’s contact centre, and for the Independent Children’s Lawyer (“ICL”) to provide copies of the necessary application form to the parties. There were notations made, which are not of course orders, but they put the orders into some context. One notation which has relevance is notation A, which reads, “[t]he mother in agreeing to this order, is not to be taken to agreeing to time between the father and the child”, and that notation relates, obviously, to the issue of supervised time.
The grounds of appeal are set out in the Draft Notice of Appeal at Annexure A, and again, they cannot be described as grounds of appeal. They are a narrative, and the best I can make of the complaint that the mother raises here, is that she alleges the ICL forced her to consent to the orders that were made. Now, that is a serious allegation to make against an ICL who is not only there to represent the child, but is an officer of the court. There is absolutely nothing put which provides any basis for that serious allegation, and when that is coupled with what appears in the transcript, it is just not borne out.
The judge who heard the matter went to great pains to explain the orders that were sought, namely, the watch list order, and the order that the parties go on a wait list for supervised time, and explained the effect of those orders, and the mother then agreed for those orders to be made. No ifs or buts, no, “Oh, I’m being forced into this,” or, “Oh, the ICL has forced me to agree to this.” Or even simply, “I don’t agree with any of these orders your Honour.” Nothing like that appears anywhere in the transcript. Instead, what appears in the transcript, is the mother understanding what the judge was about to order, agreeing with those orders, and accepting them. Thus, no basis for, and no merit in that proposed appeal.
To repeat, I find that there is absolutely no merit in any of the proposed appeals sought to be pursued if an extension of time was granted.
Given that, I do not need to go any further, as the third factor which is often looked at in these matters, is what prejudice there is to the parties, depending upon the granting or the refusing of the application. I am not going to go there because the two most important factors I have addressed, are, to repeat, there is no adequate explanation for the failure to file Notices of Appeal within time, and there is no merit in any of the proposed appeals.
Even if there was some utility in allowing this application, I would not be prepared to, and I would be dismissing it for the reasons that I have just set out.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 30 July 2020.
Associate:
Date: 7 August 2020
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