Horner and Horner

[2016] FamCAFC 257

FAMILY COURT OF AUSTRALIA

HORNER & HORNER [2016] FamCAFC 257

FAMILY LAW – APPLICATION IN AN APPEAL – Application to reinstate appeal which was deemed abandoned pursuant to r 22.2(1) of the Family Law Rules 2004 (Cth) (“the Rules”) – Where there is some explanation for the delay and the appeal may have some merit – Where the father must file and serve his appeal books by a fixed date or the appeal will be dismissed – The issue of costs to be reserved to the Full court – Application allowed.

Family Law Rules 2004 (Cth) r 22

Bemert v Swallow (2010) FLC 93-441

APPLICANT: Mr Horner

RESPONDENT: Ms Horner

INDEPENDENT CHILDREN’S LAWYER: Rebekah Bassano

FILE NUMBER: CSC 33 of 2016

APPEAL NUMBER: NA 35 of 2016

DATE DELIVERED: 28 November 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 28 November 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 12 May 2016

LOWER COURT MNC: [2016] FCCA 1420

REPRESENTATION

FOR THE APPLICANT: Mr Horner (in person via telephone)

FOR THE RESPONDENT: Ms Horner (in person via telephone)

SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER: Bassano Law

Orders

1. The Appeal NA35 of 2016 filed 7 July 2016 be reinstated.

2. The Appeal Books be filed and served upon the Independent Children’s Lawyer and the Respondent on or before 4.00pm 28 February 2016. Failing the appeal books being filed and served on that date, the appeal is dismissed.

3. The costs of the Independent Children’s Lawyer and the Respondent be reserved to the Full Court.

4. The Appeals Registrar fix a date for further directions to be made.

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 Horner & Horner 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 JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA35 of 2016
File Number: CSC33 of 2016

Mr Horner

Appellant

And

Ms Horner

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. On 20 September 2016 Mr Horner (“the father”) filed an Application in an Appeal seeking to have his appeal in NA35 of 2016 reinstated. The father failed to comply with directions that the Appeal Books be filed on or before 4.00 pm on Friday, 2 September 2016. The appeal was therefore deemed abandoned on 5 September 2016 pursuant to r 22.2(1) of the Family Law Rules 2004 (Cth). Pursuant to r 22.4(4) the father may apply to have an abandoned appeal reinstated.

2. The appeal was filed on 7 July 2016 from orders of Judge Willis made on 12 May 2016 which provided that Ms Horner (“the mother”) have sole parental responsibility of the child, born in 2014. The father is to have supervised time with the child at a Contact Centre each alternate weekend for a period of up to three hours. The father may also have Skype communication with the child once per week.

3. This morning the father complained that the orders have not been successful. He complains that the orders should not have been made, and that he is contemplating bringing further proceedings.

The Application

1. Although the father did not identify these principles in his submissions, it is important to consider those relevant to a consideration of whether an appeal should be reinstated. The Full Court in Bemert v Swallow (2010) FLC 93-441 confirmed that the relevant issues to be considered are the explanation for the delay, the likely merit of the proposed appeal, and the prejudice, if any, that may be caused to the other party. The overriding consideration is the need to do justice between the parties.

2. In his affidavit the father said that his failure to file the Appeal Books on time was due to his previous solicitor’s failures, because they did not attend to his file in a timely manner before he had to depart overseas on 6 August 2016.

3. The mother, in her submissions, raised the question as to whether the father at the time had solicitors. In his oral submissions, the father conceded that he did not have solicitors at the time, and that the true reason for his failure to file the Appeal Books on time was that he was overseas. The father did not return to Australia until 5 September 2016, a few days after the Appeal Books were due.

4. Turning to the merits of the proposed appeal, the father has six grounds of appeal. They are written as if they were submissions. Doing the best I can they can be summarised as follows:

   a)that the Trial Judge erred in law, and in the exercise of her discretion;

   b)the Trial Judge erred in failing to make orders that foster a relationship with the child’s paternal grandparents;

   c)the Trial Judge erred in ordering supervised visits, and made incorrect findings as to allegations of violence;

   d)the Trial Judge erred in ordering supervised visits in circumstances where the father will struggle financially to facilitate such visits; and

   e)the Trial Judge was biased against the father. 

5. This is clearly a highly contentious case in circumstances where both parents have great difficulty communicating with the other. The appeal is from interim orders, and it is not clear when the final trial will occur. The Independent Children’s Lawyer, Ms Bassano, has very helpfully appeared this morning, and she tells me that there is a mention of the matter soon, and that there has been given some priority to the case.

6. However, bearing in mind the enormous pressure on the Federal Circuit Court it is impossible to say when the trial will be heard. Obviously enough it will not be heard this year.

7. The mother, quite sensibly I thought, suggested that it would be much better for this matter to go to trial rather than have the appeal heard from orders made on an interim basis. However, the father wishes to press for the appeal to be heard because he says major errors were made by the Judge, there are circumstances since the hearing of the trial that are of considerable importance, at least to him, and the orders should not have been made on an interim basis.

8. It can be seen that the father has some explanation for the delay, and that the application was filed shortly after the time limits for the filing of the Appeal Books expired. There are grounds of appeal which may have some merit. It could not be said one way or the other whether there will be success, but it should not be said that there is no possibility of success.

9. In those circumstances, and despite the fact that this is an appeal from an interim order, it is appropriate that the appeal be reinstated.  However, it will be reinstated on the condition that the Appeal Books be filed and served by 28 February 2017. The father at first thought that he could file the Appeal Books by the end of January, but in an abundance of caution I will give him a further month to the end of February.

10. It will be ordered that failing the Appeal Books being filed, and served on the mother, and the Independent Children’s Lawyer by that date the appeal will be dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 28 November 2016.

Associate: 

Date:  6 December 2016