Guinness and Guinness

[2007] FamCA 383

FAMILY COURT OF AUSTRALIA

GUINNESS & GUINNESS [2007] FamCA 383

FAMILY LAW - APPEAL - Application to extend time to appeal parenting orders– Parenting orders made some eight months before property orders made - Reasons for judgment published in both matters at time of property orders – Notice of Appeal in relation to property orders filed in time – Application to extend time to appeal parenting orders granted.

Family Law Act 1975 (Cth), s 94
Family Law Rules 2004, ch 22

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

APPLICANT: Guinness

RESPONDENT: Guinness

INDEPENDENT CHILDREN’S LAWYER: Turner Whelan

FILE NUMBER: SYF 3422 of 2002

APPEAL NUMBER: EA 15 of 2007

DATE DELIVERED: 1 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 1 March 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Bizannes & Associates

SOLICITOR FOR THE RESPONDENT: Anne Marie Proctor & Associates

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Turner Whelan

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Guinness v Guinness.

Orders

1. That the father be granted an extension of time to today’s date to appeal the parenting orders made by the Honourable Justice Cohen on 30 June 2006.

2. That the Notice of Appeal filed 2 February 2007 be deemed the Notice of Appeal both in respect of parenting and property orders.

3. That the Appeals Registrar is requested to conduct a procedural hearing to settle the appeal book index at a time and date to be notified to the parties.

4. Costs of today reserved to the Full Court.

IT IS NOTED:

1. That at the procedural hearing before the Appeals Registrar, leave has been granted to Ms Proctor, solicitor for the respondent wife, to appear via telephone.

2. The independent children’s lawyer should be notified of the time and date of the procedural hearing. Ms Saltoon will advise the Appeals Registrar on or before the procedural hearing date whether or not the independent children’s lawyer will participate in the appeal.

3. That the appellant’s solicitor provided an undertaking to provide Ms Proctor with a draft appeal index today.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 15  of 2007
File Number: SYF 3422  of 2002

Guinness

Applicant

And

Guinness  

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. By Application in a Case filed 2 February 2007 the father seeks the following orders:

   1.An Order extending the time to appeal against orders made in the suit on 30 June 2006 by His Honor [sic] Mr. Justice Cohen in respect to the children of the marriage [E] born [in] 1997 and [L] born [in] 1999.

   2.An Order granting leave to proceed on appeal against orders made in the suit on 30 June 2006 by His Honor [sic] Mr. Justice Cohen in relation to children matters

   3.Further or other orders as the Court deems meet

2. No response to the application has been filed by or on behalf of the mother.  Today I granted leave to Ms P, the mother’s solicitor, to make an oral application for orders that the father’s Application in a Case be dismissed. 

Evidence

1. The father’s application is supported by his affidavit sworn on 1 February 2007.  In that affidavit the father sets out that the case was listed for final hearing in October 2005 and after the hearing the trial Judge reserved both on issues in relation to children and property matters.  A period of eight months expired and on 30 June 2006 the trial Judge made orders in relation to the children’s matters but did not publish reasons for judgment in both matters until 5 January 2007, some 14 months after the last day of the hearing.

2. He seeks, on that basis, an extension of time to file his Notice of Appeal in respect of the parenting matters.  As required by the rules a draft notice of appeal in respect of the children’s matters has been filed which sets out four grounds of proposed appeal in relation to the parenting orders. 

Background

1. The following background is set out in the judgment of the trial Judge.

2. The father was aged about 41 years at the time of the hearing and was engaged in his own business as a motor mechanic operating from the former matrimonial home in south Sydney. 

3. The mother was aged approximately 45 years at the date of the hearing and was a Commonwealth public servant.  The parties married in January 1994 and separated under the one roof in January 2002 and physically separated in February 2002.

4. There are two children of the parties’ relationship namely E born in 1997 and L born in 1999. Pursuant to the trial Judge’s orders the children are to live with the mother and have supervised contact, as it was then described prior to the amendments to the Act, to the father subject to the father completing the registration process with Centacare Contact Service, on the south coast of New South Wales, and paying fees for that service as well as attending for and obtaining drug screening for cannabis each 14 days.

5. The hearing took place before the trial Judge over seven days in October 2005.  The trial Judge made orders on 30 June 2006 and 5 January 2007 and published his reasons for judgment on 5 January 2007.

Relevant statute law and rules

1. Section 94 of the Family Law Act 1975 (Cth) (“the Act”) provides for appeals to the Family Court from courts other than the Federal Magistrates Court. Section 94(1A) provides as follows:

   An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.

2. Sections 94(2D), (2E) and (2F) are also relevant. They provide:

   (2D)    Applications of a procedural nature, including applications:

   (a)for an extension of time within which to institute an appeal under subsection (1) or (1AA); or

   (b)for leave to amend the grounds of an appeal under subsection (1) or (1AA); or

   (c)to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or

   (d)to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) or (1AA); 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 Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

   (2E)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

   (2F)No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

3. Chapter 22 of the Family Law Rules 2004 (“the rules”) deals with appeals.

4. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).

5. Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made.  Rule 22.12 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.

6. Rule 22.42 provides for an application to be made in respect of an appeal including an application for permission to appeal an order. 

Relevant legal principles – application for leave to appeal out of time

1. The relevant principles to be applied by a trial Judge in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave.

2. The exercise of discretion also involves an assessment of prospects of a successful appeal. 

3. The principles which relate to an application for an extension of time in which to institute an appeal have been referred to in a number of cases, including McMahon and McMahon (1976) FLC 90-038 at 75,144, Tormsen and Tormsen (1993) FLC 92-392 at 80,017 and Gallo v Dawson (supra) at 480 where McHugh J said:

   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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935:

   “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

4. His Honour’s observations, although made in the context of an application to extend the time in which to file a Notice of Appeal against an order dismissing an action brought in the original jurisdiction of the High Court, are apposite to the present application.

Issues in this application

1. In his affidavit in support of the application the father notes:  

   Following a delay of 8 months His Honor [sic] pronounced judgment in respect to the children matters on 30 June 2006 and made orders in relation to the children but gave no reasons for judgment and delayed the orders in respect to the property matters and his reasons in both aspects of the case until 5 January 2007 14 months after the last day of the hearing.

2. The father deposes in light of the delay by his Honour in publishing reasons for judgment to 5 January on both issues, children and property, that leave be granted to appeal the children’s orders made by his Honour on 30 June 2006 at the same time as the property orders, although technically out of time. 

3. The father has filed a Notice of Appeal in respect of both the trial Judge’s parenting orders made 30 June 2006 and the property orders made 5 January 2007.  The appeal in respect of the latter orders was filed in the time prescribed in the rules. 

4. The appeal in respect of the parenting orders is not competent unless an extension of time in which to appeal those orders is made.

Discussion

Will strict compliance with the rules work an injustice on the applicant?

(a)      history of the proceedings

1. The history of the litigation, and the lack of reasons in respect of the orders made on 30 June 2006 strongly suggest that strict compliance with the rules would work an injustice to the father as he did not have the benefit of the relevant reasons when he filed his appeal.

(b)     the conduct of the parties

1. There is nothing in the conduct of the parties raised in the father’s affidavit material which is relevant to this application.

(c)      the nature of the litigation

1. The litigation between the parties involves orders concerning the children.  Such proceedings are not strictly inter partes litigation and require in the exercise of discretion to take into account matters relevant to the best interests of the children even though those interests may not be the paramount concern of the Court in this application.

2. The father seeks if the appeal is successful there be an order for equal shared parental responsibility and that he spend significant and substantial time with the children each alternate weekend, for one half of school holidays, on father’s day, Christmas day and each of the children’s birthdays.  The orders sought by the father do not include any provision for delivery and collection of the children who reside in Canberra with the mother.

3. The orders sought also do not appear to be in line with the father’s closing address noted by the trial Judge, namely, that the father agreed to supervision for a period of six months, that he attend for supervised drug screening for cannabis no less than once a month and that on the expiration of six months and providing his drug screens were negative, that he obtain regular unsupervised contact with the children such contact to alternate between one month in Canberra and then in alternate months in Sydney. 

(d)     consequence for the parties of the grant or refusal of the application for extension of time

1. The father will be denied the prospect of arguing his grounds of appeal in respect of the parenting orders, and unless there is a significant or substantial change of circumstances, will be bound by the orders of the trial Judge.

(e)      the prospects of success of the appeal

1. This factor is normally a most significant one in considering an application for extension of time.  Without extensively canvassing the proposed grounds of appeal, the grounds do not prima facie demonstrate strong prospects of success.  However, proposed ground 4 could be said to be arguable notwithstanding the difficulties associated with an appeal against a discretionary judgment.

(f)       can hardship or injustice to the respondent be compensated by an order for costs

1. It is clear from the trial Judge’s reasons in respect of the property proceedings that the father would have the capacity to meet an order for costs if unsuccessful in the appeal.  This factor ameliorates any prejudice which may be suffered by the mother if leave is granted.  I also note that the appeal could be heard at the same time as the property appeal thus minimising the legal proceedings in which the mother would be involved.

(g)       delay by the father and explanation for the delay

1. I accept that theoretically the father could have filed a Notice of Appeal in the time provided in the rules and subsequently filed an amended Notice of Appeal.  However, on a practical basis I accept that the father could not have properly considered whether or not it was appropriate to appeal until he had had the benefit of perusing the trial Judge’s reasons for judgment. 

Conclusions

1. In Gallo v Dawson (supra) McHugh J noted:

   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…

2. Having regard to the matters discussed above and taking into account that the father has an appeal filed in time in respect of the trial Judge’s property orders, I find that it would be appropriate, and in the interests of justice to extend time to permit the father to appeal the parenting orders made on 30 June 2006.  I would propose that time be extended to today and the Notice of Appeal filed 2 February 2007 be deemed to be filed in accordance with the extension of time so granted.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate: 

Date:  1 March 2007