Hackett and Hackett - [2010] FamCAFC 129

FAMILY COURT OF AUSTRALIA

HACKETT & HACKETT

[2010] FamCAFC 129

FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where appeal deemed abandoned – where the draft appeal index was faxed to the Court within time but not recorded as being received by the Appeals Registrar – consideration of rule 24.06 providing for the filing of documents by facsimile – appeal reinstated.

Family Law Rules 2004 (Cth) r 24.06

APPLICANT:

Mr Hackett

RESPONDENT:

Ms Hackett

APPEAL NUMBER:

2010

FILE NUMBER:

MLC

1738

2008

DATE DELIVERED:

7 May 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

7 May 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 January 2010

LOWER COURT MNC:

[2010] FMCAfam17

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Fernandez

SOLICITOR FOR THE APPLICANT:

T A Fernandez

COUNSEL FOR THE RESPONDENT:

Ms Farrell

SOLICITOR FOR THE RESPONDENT:

Nevett Ford

Orders

That Appeal No. SA 9 of 2010 filed on 11 February 2010 against orders of Bender FM made on 15 January 2010 be reinstated.
That this matter be referred to the Appeals Registrar of the Southern Regional Appeal Registry for further directions.
That the respondent’s costs of and incidental to the appeal be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Hackett & Hackett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

APPEAL NUMBER: SA 9 of 2010
FILE NUMBER: MLC 1738 of 2008

Mr Hackett

Applicant

And

Ms Hackett

Respondent

EX TEMPORE REASONS

I have before me today an Application in an Appeal filed on behalf of the husband. The application seeks an order for the reinstatement of an appeal which is deemed to have been abandoned. The Notice of Appeal was filed on 11 February 2010 against orders made by Bender FM on 15 January 2010. In the usual way the Appeals Registrar then sent a letter on 16 February 2010 to the appellant referring the appellant to the requirements to file a draft index to the appeal book within 28 days. The 28 days expired at close of business on 11 March 2010. What seems to be common ground is that on 11 March 2010 the husband’s solicitor faxed to the Family Law Courts a letter together with a draft appeal index.
The concession is made by the respondent’s counsel that she received, also by facsimile, a copy of the draft appeal index on that day and thus there seems to be no doubt – as I say, it is common ground – that that facsimile was sent on the day and therefore within time. Unfortunately it seems that the court did not record the receipt of that facsimile until some time later and I think one of the problems was that the facsimile was not sent to the Appeals Registrar, it was just sent to “The Registry Manager, Family Law Courts, Melbourne, Victoria”. Thus that would have been an initial problem in terms of reaching the appropriate person on the day to then be recorded as being received by the Appeals Registrar.
Now, as a result of it not being recorded as being received on 11 March 2010 the appeal was deemed to be abandoned because that is what the Rules provide in the event that a draft appeal index is not filed within 28 days. The husband though, through his counsel, submits that in fact the Rules have been complied with and the appeal should be reinstated.
The respondent opposes the application and raises a number of issues. One is that the Family Law Rules provide for the filing of documents by facsimile namely in Rule 24.06, but she says that that Rule has not been satisfied here. That Rule provides as follows:
(1)    A document may be filed by facsimile if:
        (a)     the matter is urgent;
(b)the total number of pages, including the cover page, is not more than 25; and
(c)it is not practicable to lodge the document in the filing registry in any other way because:
(i)the filing party is unrepresented, and lives more than 20 kilometres from the registry; or
(ii)the filing party is represented by a lawyer whose principal office is more than 20 kilometres from the registry.
(2)    The document must be:
        (a)     sent to an approved facsimile number; and
        (b)     accompanied by:
(i)a letter to the Registry Manager, setting out the facts relied on under subrule (1) for filing the document by facsimile; and
(ii)a cover page in accordance with subrule 7.16 (2).
Note 1    For service by facsimile and restrictions relating to the number of pages that may be faxed, see rule 7.16.
Note 2    For the number of copies of a document to be provided for service, see rule 24.08.
Now, Ms Farrell’s point is that it has not been established by the applicant that it was urgent which would then allow the document to be filed by facsimile and her point about that is that the applicant had 28 days to prepare and file and serve the draft appeal index yet what is apparent from the evidence before me, is that this matter was left until the last minute. Thus the attempt to file by facsimile on 11 March 2010 was ineffective.
There was no evidence in the affidavit in support of the application directed to that issue. Thus I raised with counsel whether in those circumstances they wanted the matter dealt with today on the basis, for example, of Mr Fernandez, the solicitor who swore the affidavit in support of this application giving evidence or whether the matter should be adjourned to enable further affidavits to be filed on both sides.
In the end result Ms Farrell said that she wanted the matter dealt with today. She did not want the opportunity to file an affidavit in response to this application and she was comfortable for Mr Fernandez to give evidence. Thus Mr Fernandez has given oral evidence in support of his client’s application and in an attempt to deal with this issue of why attempts were not made earlier than the last minute to file a draft appeal index. Now, what Mr Fernandez says about that is that he received the letter from the court on 16 February 2010. He either sent that on to his client or spoke to his client about that so his client became aware of the need to file a draft appeal index by 11 March 2010 but unfortunately, he says, his client was unwell and his client did not provide him with instructions to proceed with the matter initially.
He only received those instructions somewhat later. He cannot pinpoint precisely when he received those instructions but he says that it was towards the end of the period of 28 days and then what Mr Fernandez did was he sought the opportunity to search the court file to identify the relevant documents for the purposes of completing the draft appeal index. However, he was not able to search the court file because he did not have a notice of address for service on file, he having ceased to act for his client some time previously at about the time of the hearing before the Federal Magistrate. Thus he was refused access to the court file and that then created, in my words, “a panic at the last minute” and led to the urgency which Mr Fernandez says is the relevant urgency for the purposes of the Rules. He says that he did his best and all that he could do in the circumstances was to file a draft appeal index by facsimile on the very last day.
In my view, this application should be allowed. I of course can only operate on the evidence that is before me, namely, the affidavit of Mr Fernandez and his oral evidence. Ms Farrell has said there are other issues in the background which would be relevant but, as I have said, her choice was not to file an affidavit detailing any further information and thus I can have no regard to that.
In my view, urgency has been established but if I am wrong about that then in the circumstances of this case I would be disposed to waive the requirement of establishing urgency before a document can be filed by facsimile in the circumstances of this case and on the evidence that is before me.
Thus given that, I have no difficulty with accepting that the draft appeal index was in fact filed appropriately on 11 March 2010 and within time, and in those circumstances it would be unfair and unjust to the applicant to not reinstate his appeal for reasons that, for example, the facsimile was sent to the wrong person or that the court processes took some time to be put in place.
Overarching all this, of course, is the interests of justice and I need to do justice to both parties and it seems to me in the circumstances that justice requires that I should reinstate the appeal.

I certify that the preceding 11 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 7 May 2010.

Associate