HARRELL & HANCOCK-HARRELL
[2014] FamCAFC 132
•23 July 2014
FAMILY COURT OF AUSTRALIA
| HARRELL & HANCOCK-HARRELL | [2014] FamCAFC 132 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to file a notice of appeal from an interim parenting decision of a Federal Circuit Court judge out of time – Where the delay is adequately explained – Where the applicant makes allegations about the respondent misleading the court - Where the appeal, if allowed, would be unmeritorious and of no utility – Application refused. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Harrell |
| RESPONDENT: | Ms Hancock- Harrell |
| FILE NUMBER: | BRC | 1164 | of | 2014 |
| APPEAL NUMBER: | NA | 25 | of | 2014 |
| DATE DELIVERED: | 23 July 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 23 July 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 March 2014 |
| LOWER COURT MNC: | [2014] FCCA 1244 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Appeared in person |
| COUNSEL FOR THE RESPONDENT: | Appeared in person |
Orders
The application in a case filed 20 May 2014 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell & Hancock-Harrell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 25 of 2014
File Number: BRC 1164 of 2014
| Mr Harrell |
Appellant
And
| Ms Hancock-Harrell |
Respondent
REASONS FOR JUDGMENT
On 20 May 2014 the father filed an application seeking an extension of time to file a notice of appeal from orders made on 28 March 2014 by Judge Baumann. In addition, the father has filed an affidavit on 20 May 2014, 3 June 2014 and written submissions on 22 July 2014.
The mother filed a response on 12 June 2014 seeking that the application be dismissed and for costs.
Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a notice of appeal must be filed “within 28 days after the date the order appealed from was made”. The father is therefore less than one month out of time.
The orders of Judge Baumann provided that in the interim the parties’ child, C Harrell (born in August 2011), live with Mr Hancock-Harrell (“the mother”) and spend time with the father each Sunday from 9:30 am to 3:30 pm supervised by specified family members.
Certain procedural orders in preparation for trial were also made, including the appointment of court experts to prepare a family report and conduct psychiatric assessment of both parties. The costs of the reports were to be met in the first instance by the father with liberty to him to seek contribution from the mother in the future. At that time the likely cost of such reports was not known. The matter was adjourned to 31 July 2014 for further directions.
background
It is uncontroversial that on 13 September 2013 the father suffered some form of mental illness. Final separation occurred on 5 December 2013.
Prior to the orders of 28 March 2014, the child spent essentially no time with the father post separation. The father maintains that the mother had been happy for him to care for the child prior to their separation. Although it is difficult to make any comment on the facts of the matter at this early stage, it appears that there have been further incidents between the parties causing some difficulty.
principles
The applicant relies upon the discretion to make an order extending the time to appeal as contained in r 1.14 of the Rules:
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
There is no specified criteria in either s 94(2D)(a) of the Family Law Act 1975 (Cth) (“the Act”) or the Rules for the exercise of discretion to extend time for the institution of an appeal.
The general principles for granting an extension of time in civil proceedings are well-known. McHugh J in Gallo v Dawson (1990) 93 ALR 479 considered them 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.
It is clear that the fundamental issue in this application is whether an extension of time to file a notice of appeal is necessary to do justice between the parties. Three factors have been identified in the cases about such extensions, as being indicative, but not determinative, of whether an extension of time should be granted:
·An adequate explanation for the delay;
·The proposed grounds of appeal having some merit; and
·That any prejudice to the respondent can be compensated by an order for costs.
the basis of the application
In the proposed notice of appeal, attached to the application, the father maintains that the affidavit material and submissions made on behalf of the mother misled the judge.
The particulars of this misleading conduct are then set out. The father expanded on these issues in his oral submissions. It can immediately be seen that to resolve that question these matters require evidence from the parties which no doubt will be controversial and, as the father acknowledges, some expert evidence.
Among other orders sought on appeal, the father asks for sole care of the child and that the mother have supervised time with the child. Further, that the cost of a psychiatric assessment of the mother and the family report be met by the mother.
In an affidavit filed 20 May 2014 in support of the application the father provides some evidence of the reason for delay in filing the notice of appeal:
4.Matters that evidence the misleading of Judge Baumann by the Respondent and her Counsel took some time for me to confirm.
5.I then asked for advice on how to have the matter reviewed and was advised I needed to make an application to the Duty Registrar which I lodged at the Brisbane Registry on either Wednesday 16th April or Thursday 17th April when I lodged other documents for filing. The very helpful counter assistance took my letter to her Supervisor who then advised me it would be given to the Duty Manager. Refer Annexure 1
6.I stayed in touch with the Registry through both the National Enquiries Centre and the Registry direct and was advised that the matter was with Chambers.
7.I was eventually advised. I believe around 28th April that I needed to follow a different procedure being the Appeals process.
8.I immediately commenced actioning that information. Refer Annexure 2
The delay is adequately explained.
A particular matter highlighted in the affidavit is the father’s ability to finance the psychiatric assessments and the family report as ordered. The judge discussed this with the father at the interim hearing who said [Transcript 25 March 2014 p.22 l. 11]:
MR [HARRELL]: Well, no. Well, we have had discussions around it. I agreed to undergo an independent psychiatric assessment in early February and I indicated to [Ms Hancock-Harrell] that I would pay for a couple of sessions.
At the interim hearing, counsel for the mother asked that orders be made for the father to pay for the expense of a psychiatric report as the mother is unemployed. The father is paying $298.00 per week in child support and he explained that the parties’ savings were fully expended by the mother or at least retained by her.
Further it was said by the father [Transcript p.28 l. 9]:
HIS HONOUR: So how is she going to pay?
MR [HARRELL]: I had offered to pay, your Honour.
It is unsurprising that the judge made the order.
An appeal in this respect is unlikely to succeed in view of the concession made by the father before the judge.
In any event, the only remedy would be to remit the matter for re-hearing. As a judge of the Federal Circuit Court could otherwise hear the matter such a course would be futile.
It would also be unsurprising considering the necessarily truncated nature of such a hearing that the parties may not have informed the judge about other material circumstances and that that there was some misunderstanding about what the father was offering.
In my view, it is open to the father to seek a variation of the orders in relation to the expert reports and how the costs of such reports might be met. The father said in the hearing asking for leave that a quote from the relevant psychiatrist was in the order of $9,000 for preparation of a report.
It seems that there may be a difficulty as to how the costs of the reports are to be met. The most appropriate course is for the father to file an application to resolve this issue. An affidavit containing the relevant evidence could also be filed. Further information has been provided since the interim hearing, including the possible costs of such a report.
In addition, reference to the orders sought by the father on appeal demonstrate that what the father is seeking is a hearing in relation to this matter to obtain different orders. The appeal court might set aside the orders and order a re-hearing. That will not achieve the result that the father desires.
An appreciation of the principles related to appeals from discretionary orders contained in House v The King (1936) 55 CLR 499, especially in this case being an appeal from an interim order, makes it apparent that there is no prospect of success.
conclusion
While the delay in filing the application seeking to appeal may be short and explained, the application should not be allowed.
The appeal is unmeritorious and of no utility.
costs
At the conclusion of the hearing I asked the parties to make submissions as to costs.
Neither party sought an order as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 23 July 2014.
Associate:
Date: 23 July 2014
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