Gupta & Gupta (No 2)
[2017] FamCAFC 232
•13 November 2017
FAMILY COURT OF AUSTRALIA
| GUPTA & GUPTA (NO. 2) | [2017] FamCAFC 232 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s appeal was deemed to be abandoned due to his failure to file a draft appeal index within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Where the appeal is not so devoid of merit that it would be futile to reinstate it – Appeal reinstated. |
| Family Law Act 1975 (Cth) |
Family Law Rules 2004 (Cth) r 22.13
| Gallo v Dawson (1990) 93 ALR 479 |
Rand & Rand [2009] FamCAFC 88
| APPLICANT: | Mr Gupta |
| RESPONDENT: | Ms Gupta |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Samuel |
| FILE NUMBER: | PAC | 5828 | of | 2008 |
| APPEAL NUMBER: | EA | 95 | of | 2017 |
| DATE DELIVERED: | 13 November 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 7 November 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 August 2017 |
| LOWER COURT MNC: | [2017] FCCA 1843 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | No appearance by or on behalf of the respondent |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
Appeal No EA 95 of 2017 is reinstated.
The applicant file and serve the draft appeal index within 14 days of this order.
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 Gupta & Gupta (No. 2) 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 JURDISCTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 95 of 2017
File Number: PAC 5828 of 2008
| Mr Gupta |
Applicant
and
| Ms Gupta |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Mr Gupta (“the father”) seeks reinstatement of his abandoned appeal by way of an Application in an Appeal filed on 18 October 2017.
The appeal relates to final parenting orders made by Judge Hughes on
11 August 2017 between the father and Ms Gupta (“the mother”) in relation to the parties’ two children born in 2005 and 2009. The orders provided that the mother have sole parental responsibility for the children and that they live with her and spend no time with the father, unless otherwise agreed between the parties in writing. Her Honour also made restraining orders under s 68B of the Family Law Act 1975 (Cth) (“the Act”) for the personal protection of the mother and children.
On that same day, 11 August 2017, the primary judge also made orders restraining the father from commencing any further family law proceedings involving the mother or the children without obtaining leave of the Court.
On 6 September 2017 the father filed a Notice of Appeal against both sets of orders made by the primary judge.
On 18 September 2017 the Appeal Registry forwarded a letter to the father informing him of the obligation to file and serve a draft appeal index to the appeal books by 4.30 pm on 4 October 2017. The draft index was not filed by this date and so by operation of r 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”) the appeal was deemed abandoned from 4.30 pm on 4 October 2017.
On 5 October 2017 the father attempted to file the draft appeal index but was advised by the Appeal Registry on 6 October 2017 that the appeal had been deemed abandoned.
The father now seeks that the appeal be reinstated.
Before considering the application for reinstatement it will be beneficial to give some background as to her Honour’s reasons for context.
Background
The parties entered into an arranged marriage in 2003, separated in 2008 and were divorced in 2012. Their first child was born during the relationship in 2005. The parties have been engaged in protracted parenting proceedings since 2008, before the birth of their second child in 2009. Final parenting orders were made in November 2010 in the absence of the father. Those orders provided that the children live with the mother and spend time with the father only as agreed between the parties. The mother was also granted sole parental responsibility for the children.
By his application filed on 16 June 2015 the father recommenced the parenting proceedings. At the final hearing her Honour found that the father had had minimal involvement in the children’s lives, with her reasons recording that the children had only had face-to-face contact with the father on three occasions since 2008. Her Honour also found that there had been extensive family violence perpetrated by the father against the mother, and that the children were fearful of the father and did not want to have a relationship with him.
Application for reinstatement
In support of the application for reinstatement the father says that he was aware that the draft appeal index was due to be filed in the Appeal Registry by
4 October 2017, but he was unable to file it by this date. He did though attempt to file the document one day late on 5 October 2017. The father says the delay in filing the draft appeal index was because he was evicted from his home after his tenancy contract was terminated, and that all his “documents and systems” were still at those premises. He said he was then denied access to those premises “for a considerable amount of time”.
The father said that he used public places to access the court portal but that the files listed on the portal did “not reflect the true picture” and thus there was a delay in “groping through [the] files” to present the information he wanted to the Court.
When the father became aware that the appeal had been deemed abandoned he promptly applied to have it reinstated.
There was no appearance by or on behalf of the mother at the hearing of the application for reinstatement.
Gallo v Dawson (1990) 93 ALR 479 sets out the principles relating to an application to reinstate an appeal. Although that case dealt with an extension of time to appeal, the principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88). The central principle is that such applications should be allowed where to do otherwise may cause a substantial injustice. In Gallo v Dawson 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 … 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 … 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 …
(References omitted)
In dealing with appeals that have been properly filed, but not appropriately prosecuted, the appeal will usually be reinstated unless some exception exists to the contrary. The consideration of whether the appeal is “arguable” also requires consideration. In Jackamarra v Krakouer (1998) 195 CLR 516 Brennan CJ and McHugh J said at [7]:
… It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, “must be investigated and decided in the manner appointed”. If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.
(Emphasis added, footnotes omitted)
Merits of the appeal
It is necessary to consider whether the appeal is so devoid of merit that it would be futile to make the order sought. However, it must be clearly shown that the appeal would fail before an applicant is denied the right to have his or her appeal heard.
The father’s Notice of Appeal sets out six challenges to her Honour’s orders. One of the grounds relates to her Honour declining to accede to the father’s request to re-examine a witness following the conclusion of his cross-examination. The remaining grounds, in essence, challenge her Honour’s findings as to the father’s history of family violence, the history of the father’s communication with the children and assert that her Honour did not consider the father’s allegations against the mother.
The Independent Children’s Lawyer submitted that the appeal was, in his opinion, not completely devoid of merit.
In my view, the appeal is not sufficiently devoid of merit that it would be futile to order it to be reinstated. Accordingly in this case, I am satisfied that the father’s appeal should be reinstated and I will make that order, and orders providing for the filing of the draft appeal index.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
13 November 2017.
Associate:
Date: 13 November 2017
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