Harold & Raymond
[2021] FamCAFC 104
•2 July 2021
FAMILY COURT OF AUSTRALIA
Harold & Raymond [2021] FamCAFC 104
Appeal from: Harold & Raymond [2021] FCCA 644 Appeal number(s): SOA 23 of 2021 File number(s): MLC 2003 of 2021 Judgment of: STRICKLAND J Date of judgment: 2 July 2021 Catchwords: FAMILY LAW – APPEAL –Extension of time – Where the applicant seeks to extend the time in which to file a Notice of Appeal – Where a delay of several hours in seeking to file Notice of Appeal not a circumstance that should prevent the application being granted – Where a ground of appeal arguable – Where clear prejudice to the applicant if the appeal is not allowed to proceed – Application granted. Legislation: Family Law Act 1975 (Cth) s 66L
Family Law Rules 2004 (Cth) r 22.03
Cases cited: Gallo v Dawson (1990) 93 ALR 479 Division: Appeal Division Number of paragraphs: 21 Date of hearing: 25 June 2021 Place: Adelaide (via Microsoft Teams link to Melbourne) The Applicant: Litigant in person The Respondent: Litigant in person ORDERS
SOA 23 of 2021
MLC 2003 of 2021APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS HAROLD
Applicant
AND: MS RAYMOND
Respondent
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
2 JULY 2021
THE COURT ORDERS THAT:
1.The time for the applicant mother to file and serve a Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal from orders made by a Judge of the Federal Circuit Court of Australia on 22 March 2021 be extended to the close of business on Friday, 16 July 2021.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harold & Raymond has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND J
INTRODUCTION
On 23 April 2021, Ms Harold (“the mother”) filed an Application in an Appeal seeking an extension of time to file a Notice of Appeal seeking leave to appeal and if leave is granted to appeal against orders made by a Judge of the Federal Circuit Court of Australia on 22 March 2021.
The Application is opposed by Mr Raymond (“the father”).
The orders sought to be appealed are orders made pursuant to s 66L of the Family Law Act 1975 (Cth) (“the Act”) providing for the father to pay adult child maintenance for Mr B born in November 2002 (“the adult child”).
The Application in an Appeal is supported by an affidavit of the mother also filed on 23 April 2021 together with a Draft Notice of Appeal, being the Notice of Appeal that the mother would wish to proceed on in the event of time being extended.
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a Notice of Appeal must be filed within 28 days after the date of the order appealed from was made. Here, that 28 day period expired on 19 April 2021, but the mother failed to file a Notice of Appeal within that time. Thus, the mother filed the Application in an Appeal that is now before this Court.
THE APPLICABLE PRINCIPLES
The principles in relation to applications for extensions of time are well settled. For example, in the High Court decision of Gallo v Dawson (1990) 93 ALR 479, McHugh J said this 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: 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.
Thus, the fundamental issue is whether the discretion to extend time should be exercised to enable the Court to do justice between the parties in the context of the Rules of Court fixing times for doing acts. In considering that issue, the primary factors to be addressed are firstly, whether there are adequate reasons which explain the failure to file a Notice of Appeal within the requisite 28 day period, whether there is a substantial issue to be raised on appeal, or to put it another way, whether the appeal has merit, and the consequences for the parties of the grant or refusal of the application.
DISCUSSION
Adequate explanation
The explanation for the failure by the mother to file her Notice of Appeal within time is to be found in her affidavit.
As referred to above, the last day for the appeal to be filed was 19 April 2021. The mother says that in the early part of the 28 day period, her attention was directed towards filing an Application in a Case as a result of the alleged non-compliance by the father with the orders made by her Honour. Then, on 18 April 2021, she was involved in a motor vehicle accident.
On 19 April 2021, the mother emailed her Notice of Appeal to the Southern Appeals Registry at approximately midnight, believing that the 28 day period did not expire until that time. However, the fact is that the Notice of Appeal had to be filed by the close of business on that day, namely 4.30pm. Accordingly, the mother was approximately 7 or 8 hours late in filing the Notice of Appeal.
Although the onus is always on the litigant to ascertain the procedural requirements for filing documents, given that she was only several hours late in seeking to file her Notice of Appeal, and given her explanation for not filing the Notice of Appeal earlier than the 28 day period, I find that this is not a circumstance that should prevent the application being granted. Indeed, it is also relevant to note that once the mother learnt that she was out of time, there was no delay in bringing the application seeking an extension of time.
The merits of the appeal
As can be seen, the mother requires leave to appeal given the nature of the orders sought to be appealed. Unfortunately though, in the Draft Notice of Appeal, the mother failed to set out any facts relied on in support of the Application for Leave to Appeal which established an error of principle or a substantial injustice. Nevertheless, at the hearing of the application, the mother explained that she was relying on the merits of her grounds of appeal to satisfy the need for leave to appeal. That is not an uncommon approach which is adopted, but despite my reservations about that in this instance, I am prepared to proceed on that basis. However, in the event that time is extended and the appeal proceeds, the mother will almost certainly need to provide more detail in support of her Application for Leave to Appeal.
It must also be understood that the question here is not whether I am satisfied that the mother will succeed in establishing before the Appeal Court that the primary judge erred in the exercise of her discretion. Rather, the question is whether I am satisfied that the mother raises an issue or issues of sufficient substance that they should, as a matter of justice, be ventilated in an appeal. In other words, I need to consider whether there is an arguable case on appeal, and indeed where it is apparent there is even the remotest chance of success, then that is enough. It would only be where I am able to find that the appeal is hopeless or deemed to fail, that the appeal should not be allowed to proceed.
It must also be understood that in assessing the merits of the appeal, I have limited documentation, namely the reasons for judgment of the primary judge and the Draft Notice of Appeal. I do not have the full range of documentation that would be before the Appeal Court. For example, that Court would have the benefit of the transcript of the hearing before the primary judge, as well as all of the documents that were before that judge, together with summaries of arguments from the parties. Thus, I am simply not able to assess in any depth the merits of the appeal, and my analysis must necessarily be limited to the documentation that I do have together with the oral submissions of the parties.
The grounds of appeal raised in the Draft Notice of Appeal are as follows:
(1)That her Honour did not correctly apply the principles of Part 7 Division 7 of the Family Law Act and exercise her discretion appropriately by:
(a)Not adequately considering the mother’s unemployment and ability to immediately and substantially contribute towards the child’s living expenses;
(b)Not adequately considering all of the father’s financial resources and his ability to derive income from them;
(c)Not determining the child’s necessary expenses to include travel and household expenses in circumstances where he is living interstate to attend university.
(2)That her Honour erred in the facts available by:
(a)Determining the child would not be required to pay accommodation costs at the university college when is not living there;
(b)Determining that the university year is 35 weeks and that the child’s living expenses of $720 per week would only apply while he was living in Canberra for 35 weeks per year.
(c)Determining the child would not have accommodation costs in Canberra for 17 weeks per year.
(d)Determining the child will leave Canberra for mid semester and summer university breaks, and get leave from his employment for 17 weeks a year to do so.
(3)That her Honour exercised her discretion incorrectly by:
(a)Determining that the child can substantially cover his costs during semester breaks.
(b)Determining that the mother has capacity to immediately earn sufficient income to support herself and contribute towards the child’s living expenses.
(c)Excluding travel and household expenses from ‘necessary’ living expenses.
(d)Determining the child can substantially support himself during the summer holidays.
(As per the original)
As can be seen, ground one raises weight challenges, ground two alleges in effect mistakes of fact, and ground three in effect contends that her Honour erred in the exercise of her discretion.
In summary, I am not necessarily persuaded that any of the weight challenges have sufficient merit, but, in particular, having closely read her Honour’s reasons for judgment, I am not necessarily persuaded that her Honour failed to take into account the respective financial circumstances of the parties. However, it seems to me that there is an arguable case surrounding the circumstances of the adult child insofar as his accommodation and living costs. It seems that her Honour limited her consideration to those matters to the periods of time when the adult child would be actually attending university.
Thus, I am not in a position to find that there is absolutely no merit in the grounds of appeal, and I am satisfied that the mother has an arguable case. However, that says nothing about whether the appeal will in fact be successful. That will be a matter for the Full Court in hearing the appeal and having available all of the relevant documentation referred to above.
The consequences of the granting or refusing of the Application
If the Application is granted, the appeal will be able to proceed and the father will need to address it. Thus, there is an obvious prejudice to the father given that currently there is no appeal on foot and the father has been able to move on with his life on that basis.
On the other hand, if the Application is refused, then the mother would not be able to pursue an appeal, and significantly there is no appeal from a refusal to grant an Application such as this. There is, of course, the ability to apply for special leave to appeal to the High Court of Australia, however that is a difficult exercise and may not be warranted in this case. In any event, this is a clear prejudice to the mother if the Application is refused.
CONCLUSION
As the authorities recognise, consideration of the relevant factors informs the Court in determining the fundamental issue, namely where the justice of the case lies. Here, I have found that the failure to file a Notice of Appeal within time should not prevent the Application being successful. Importantly, I have found that there is an arguable case on appeal, and there will be clear prejudice to the mother if the appeal is not allowed to proceed. Accordingly, the interests of justice require that the Application be granted.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 2 July 2021
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