HALBERT & MILLSON
[2020] FamCAFC 173
•21 July 2020
FAMILY COURT OF AUSTRALIA
| HALBERT & MILLSON | [2020] FamCAFC 173 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Oral application for reinstatement – Where the Digital Appeal Book was filed 11 minutes late – Delay explained – Appeal not so weak as to render it futile – Appeal reinstated. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Provision of written version of the transcript – Order made for the applicant mother to listen to the audio version of the transcript – Application otherwise dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) 22.13 |
| Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Forbes & Bream [2008] FamCAFC 189 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Rand & Rand [2009] FamCAFC 88 Sampson & Hartnett(Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 |
| APPLICANT: | Ms Halbert |
| RESPONDENT: | Mr Millson |
| FILE NUMBER: | SYC | 6260 | of | 2007 |
| APPEAL NUMBER: | EAA | 4 | of | 2020 |
| DATE DELIVERED: | 21 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 14 July 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 November 2019 |
| LOWER COURT MNC: | [2019] FamCA 869 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Saw |
| SOLICITOR FOR THE APPLICANT: | Law Society of NSW The Pro Bono Scheme |
| COUNSEL FOR THE RESPONDENT: | Mr Blackah |
| SOLICITOR FOR THE RESPONDENT: | G & D Lawyers |
| SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Levy |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The Appeal EAA 4 of 2020 filed on 21 January 2020 be reinstated.
The applicant be permitted to proceed with the appeal without having included in the Digital Appeal Book the transcript of proceedings on 1, 2 and 3 July 2019 but may do so if advised.
The Eastern Appeals Registrar is requested to make arrangements for the applicant to be able to listen (at a registry) to an audio recording of the trial conducted on 1, 2 and 3 July 2019 at a time convenient to the applicant and the registry.
The Application in an Appeal filed on 22 June 2020 is otherwise dismissed.
No order as to costs.
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 Halbert & Millson 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 JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 4 of 2020
File Number: SYC 6260 of 2007
| Ms Halbert |
Applicant
And
| Mr Millson |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 27 November 2019, a judge of the Family Court made final parenting orders as between Ms Halbert (“the mother”) and Mr Millson (“the father”) in relation to their two children, then aged 13 and 8. The effect of his Honour’s orders was to change the living arrangements of the children who had, up until that time been living in the primary care of the mother and were spending time with the father. By an Amended Notice of Appeal filed on 21 January 2020, the mother appeals his Honour’s orders.
By an Application in an Appeal filed on 22 June 2020, the mother seeks an order that the Court obtain and pay for the transcript of three days of the hearing before the primary judge.
Directions for the preparation of the appeal were made in the usual way, and the mother was directed to file the Digital Appeal Book by no later than 2 July 2020. The Appeal Book was sent electronically to the Appeal Registry at 4.41 pm, 11 minutes after the time stipulated in the Procedural Orders made by the Appeal Registrar on 7 May 2020. Thus the appeal was deemed abandoned pursuant to Rule 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”).
No written application was made that the appeal be reinstated but on the oral application of the mother’s counsel, it was heard at the same time as the application for the provision of transcript.
Background
The primary judge’s orders, in short, provided for a change of primary residence for the parties’ two children from the mother to the father. His Honour further ordered that the children have no contact with the mother for a period of three months followed by a regime of supervised time.
When the matter came before the Federal Circuit Court in September 2017 on the father’s application, he sought orders that he and the mother have equal shared parental responsibility and the children spend time with each of the parents on a week about basis. Interim orders made in the Family Court in September 2018 which provided that the children live with the mother and spend time with the father. Again in April 2019, the parents consented to orders which provided that the children live with the mother and spend time with the father, particularly in the April school holidays. After an instance in which the mother did not permit the children to spend time with the father, he filed a further application in June 2019, in which he sought orders that he have sole parental responsibility, that the children live with him and spend no time with the mother.
As can be seen that is the order made by the primary judge. In coming to that decision, his Honour concluded that the mother posed an unacceptable risk of emotional harm to the children and concluded that the mother “suffers considerable emotional dysregulation” at [4].
The mother is unable to afford legal representation and has been unsuccessful in obtaining Legal Aid. She is presently represented by a solicitor from the Law Society of New South Wales Pro Bono Scheme.
Application for reinstatement
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 (“Gallo v Dawson”). Although that case dealt with an extension of time in which to appeal, the principles also apply to an application to reinstate an appeal (see 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…
(Citations omitted)
It must be appreciated too, that 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. 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)
In explanation of the delay in filing the Digital Appeal Book, the mother’s solicitor said that given her limited role, that is, as a solicitor within the Law Society of New South Wales Pro Bono Scheme, she did not have the resources to compile the Appeal Book. She sought assistance from another law firm on 11 June 2020, who on 29 June 2020, advised her that they could no longer assist and thus on 30 June 2020, she commissioned an external provider to compile the Appeal Book. The book is voluminous and was sent to her electronically on 2 July 2020 at 4.28 pm, the day on which the book was to be filed. The size of the file took time to download with the result that it was filed 11 minutes late.
The reason for the delay have been well explained and it could not be seriously contended that a delay of 11 minutes is material.
Turning then to the merit of the proposed appeal. Counsel for the father argued against the reinstatement asserting that the mother’s appeal lacked merit although conceded that he could not submit that the appeal was so weak as to render it futile to reinstate it.
Thus I ordered that the appeal be reinstated.
Application for provision of transcript
Turning then to the mother’s application that the court pay for and provide the transcript of 1, 2 and 3 July 2019 of the hearing heard before the primary judge. The transcript of the two final hearing days, 8 and 9 August 2019 had been obtained by the court and have been provided by the Court to the mother without charge.
The mother says she is unemployed and in receipt of JobSeeker payments, and contends that she cannot afford the costs associated with the provision of the transcript for the three other days. She has been informed that the cost would be in the order of $7,000.
The Law Society of New South Wales Pro Bono Scheme does not have the funds to pay for the transcript.
The father opposes the mother’s application and seeks an order that it be dismissed together with an order for the payment of his costs. It was not altogether clear why the father would oppose the mother’s application that the court pay for the transcript and when asked, counsel for the father said that the father was “indifferent to the appeal” which seemed to make his opposition to the application difficult to understand.
Equally, the Independent Children's Lawyer submitted that the provision of transcripts would be of use to the appeal but disavowed support for the mother’s appeal.
Neither in the Family Law Act 1975 (Cth) (“the Act”) nor in the Rules is there a provision for the Court to provide the transcript of proceedings that are the subject of an appeal. In Forbes & Bream [2008] FamCAFC 189 at [28] the court said:
From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court…
That is not to say that in exceptional cases the Court may provide a transcript if it was persuaded that it is necessary. In Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 (“Sampson”) the Full Court of the Family Court set out a list of factors that it considered relevant to such an application. The matters include the nature of the proceedings, whether parenting or financial, whether the provision of the transcript is necessary for the determination of the appeal, the financial circumstances of the party seeking the provision of the transcript, the proportionality of the cost of the transcript to the appellant’s anticipated costs of the appeal and the apparent merit of the appeal (see Sampson at [16]).
The consequences of his Honour’s orders are significant. The children’s primary carer has been changed and, at least for a time, they had no time with the mother who had, up until then, been the primary carer.
The evidence satisfies me that the mother does not have the means to purchase the transcript.
The grounds of appeal, some 26 in number, challenge the primary judge’s findings of fact and the conclusions his Honour reached based on those facts. Appellate challenges to fact finding by a primary judge face significant hurdles (see Edwards v Noble (1971) 125 CLR 296). That is not to say that such a challenge can never be successfully made. Equally too the mother’s challenge to the exercise of his Honour’s discretion faces a high bar.
I am unpersuaded that this is a case in which the court should purchase the transcript. However, I will make an order that the mother or those advising the mother may listen to the audio version of the transcript in order to assess whether some shorter extracts of the transcript might suffice for the appeal and the cost of which might be more easily borne by the mother.
Costs
Although the father’s response to the mother’s application for the provision of the transcript sought an order for costs, I am not persuaded that this is a case where there should be a departure from the usual position that each party pay his or her costs (s 117(1) of the Act).
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 21 July 2020.
Associate:
Date: 21 July 2020
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