Horton and Horton

[2006] FamCA 1392

FAMILY COURT OF AUSTRALIA

HORTON & HORTON [2006] FamCA 1392

APPEAL – Application to reinstate an appeal deemed abandoned by operation of the Family Law Rules 2004 – The applicant father had filed an appeal against parenting orders made in August 2006 providing that the child live with her mother and have no contact with the father for a period of six months – The father then went overseas for a holiday and did not file a pre-argument statement as required – The self-represented father may have been confused as to the court process and his obligations in relation to it – It does not appear that non-compliance was deliberate – Events may be overtaking proceedings as it appears that the child the subject of the orders was recently voluntarily returned to the father – The Independent Child’s Lawyer has acted under s 67ZA of the Family Law Act 1979 to notify the relevant State authorities – It may now be more appropriate for the father to apply to vary the original orders on the basis of this change in circumstances rather than proceed with his appeal, especially as the proposed grounds of appeal are difficult to ascertain – Application to reinstate is granted subject to the appellant filing and serving a pre-argument statement and draft index to the appeal books within stipulated periods.

Family Law Act 1975 (Cth)

Neil v Nott (1994) 121 ALR 148

APPELLANT: MR HORTON

RESPONDENT: MRS HORTON

INDEPENDENT CHILDREN’S LAWYER: LEGAL AID COMMISSION OF NSW

FILE NUMBER: MLF 8005 of 1997

APPEAL NUMBER: SA 55 of 2006

DATE DELIVERED: 15 DECEMBER 2006

PLACE DELIVERED: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE KAY

HEARING DATE: 15 DECEMBER 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27 OCTOBER 2006

LOWER COURT MNC: [2006] FamCA 1102

REPRESENTATION

COUNSEL FOR THE APPELLANT: IN PERSON

SOLICITORS FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT: MS CROYDON

SOLICITORS FOR THE RESPONDENT: CROYDONS

INDEPENDENT CHILDREN'S LAWYER: MS WEARNE

Orders

1. The application filed on 1 December to reinstate the appeal filed 6 September 2006 is granted subject to compliance with the following conditions:

   (a)the appellant file and serve a pre-argument statement on or before 9 February 2007; and

   (b)file and serve a draft index to the appeal books on or before 9 March 2007

   otherwise the appeal is deemed to be abandoned.

2. Reserve the wife's costs of this day.

3. My judgment be transcribed and placed on the court file.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 55  of 2006
File Number: MLF 8005  of 1997

MR HORTON

Appellant

And

MRS HORTON

Respondent

REASONS FOR JUDGMENT

1. I have before me an application seeking to reinstate an appeal that has been deemed to be abandoned by operation of the Family Law Rules.

2. There was an application concerning the parenting orders of the child M, born 26 November 1995.  The mother and the father each sought residence orders or an equivalent thereof, and orders relating to the amount of time the child should spend with the other.  The child was represented in the proceedings by an independent children's lawyer. 

3. The hearing occupied 21 August, 25 to 28 August and 31 August 2006 before her Honour Bennett J.  At the conclusion of the hearing, her Honour made orders to the effect that M should live with her mother and that the father be restrained from spending any time with the child prior to March 2007 and thereafter made some arrangements for some supervised times for the next two years until January 2009 for the father and child to meet at a contact service in South Australia. 

4. There were various other orders made, including an unusual order pursuant to s 64D(2) that the parenting order could only be varied by a subsequent order of the Court and not by a parenting plan entered into between the parties.

5. On the day the order was pronounced the child was taken from the father and handed to the mother and that occurred, as I understand it, at the end of the hearing on 31 August 2006.  The father promptly filed a Notice of Appeal which has been given a filing date of 6 September and when he sent the draft Notice of Appeal to the Court, he sent a note that said:

   Could you please let me know by email if this is granted.  I will be going to Thailand to get married and will be gone for three to four weeks and would like to be legal represented.  I will be going before 11 Sept.  I thought my daughter was coming with me.  I have cared for my daughter for the last two years without government support.  Can you please contact me as soon as possible if this notice of appeal is granted.

6. I am not quite certain what the expectations of the father were as to what would occur, whether he expected that merely the filing of Notice of Appeal would lead the Court into somehow reviewing the process before the trial judge of itself without hearing from anybody to determine the appeal, or whether the note meant he had other expectations. It is not clear.

7. What then occurred is the Notice of Appeal was marked as filed on 6 September 2006 and stamped copies were returned to the father for service by letter dated 7 September 2006.  Amongst the matters contained in the letter sent by the Appeals Registrar at Melbourne to the father was a statement headed ‘Pre-Argument Statement’:

   Pursuant to rule 22.14 of the rules you are required to file a pre‑argument statement (and sufficient copies for service) with me in the Regional Appeals Registry within 21 days of the date of filing the notice of appeal, ie, by 27 September 2006.  When the pre-argument statement is filed a time will be fixed for this appeal to be listed for directions and all parties notified of the date and time in writing.

8. A further letter was sent on 3 October 2006 after the time had expired for the filing of the pre-argument statement in accordance with rule 22.14, and that letter said:

   I refer to my letter of 7 September 2006 in relation to the appeal filed 6 September 2006 against orders made by the Honourable Bennett J on 31 August 2006.  The pre-argument statement due on 27 September 2006 has not been filed. This appeal will be deemed abandoned pursuant to the provisions of rule 22.56 of the Family Law Rules if the statement is not filed by 25 October 2006.

9. The next part of the exercise is that by letter which was received by the Court on 25 October 2006, the father wrote to the Court and said:

   Dear Sir, my notice of appeal was on 6 September.  It was supposed to be served by 20 September, I notified the court by letter it was placed on the notice of appeal that I was going overseas to get married and would not be returning until 25 October.  Only for a friend opening my mail, I would not have known that the court put it on the day of my return from Thailand had I not sent an email to the court from Thailand, which would have made it impossible for me to attend or have the papers ready in time.  I also am seeking legal aid as the papers were supposed to be served on the 20th.  That also was impossible to do, I had to cancel my wedding.  I can't understand why the court has done this, after I asked for it to be after I returned from getting married and also my flight home with Qantas was cancelled because they were full, it has cost me allot of money because of this and also my marriage to [LM], I had to get Vietnam airway, that was the only seat available, and would like the court now to for extra time in this matter because there mistake not mine.

10. Mr Horton was then advised by the Appeals Registrar that it was not possible to obtain an administrative extension of time to apply for a pre-argument statement because of the operation of the Family Law Rules and it was necessary then to make an application for reinstatement. Mr Horton then filed an application on 1 December 2006 which seeks "re‑statement of the appeal SA 55 of 2006".

11. Doing the best I can in relation to the material, it would appear that there was some confusion in the mind of the appellant as to the process and his obligations under it.  This is sufficient to meet one of the criteria that I am required to give consideration to in dealing with an application for reinstatement.

12. Rule 22.57 of the Family Law Rules provides the matters that the Court may consider amongst other things in determining whether to reinstate an appeal.  The first matter the Court is directed to give consideration to is the main purpose of the rules which is to ensure that each case is resolved in a just and timely manner, the cost of the parties in court and is reasonable in the circumstances of the case.  I am also obliged to give consideration to the administration of justice and whether the application has been made promptly, which it appears to have been, whether the non-compliance was intentional and whether there is good reason for non-compliance.

13. Having regard to the confusion that is apparent in the mind of the applicant, I am not prepared to conclude that non-compliance was intentional, I just think there is room for granting some benefit of doubt to the applicant that he was confused with precisely what his obligations were. 

14. The other matters that I am obliged to give consideration to include the extent to which the other party has otherwise complied with the orders or legislative provisions.  I have nothing before me relating to the issue of compliance in the appeal with the orders or legislative provisions, other than to comment that the Notice of Appeal leads to one wondering precisely what the grounds of appeal eventually articulated are likely to be. The appellant appears in person and lacks some skills in relation to expressing himself in writing. Part of the evidence that was given below - and on the little I have been able to hear so far, seem to be not entirely without substance - is that there are disjointed thought processes that would lead to the appellant not being conveniently able to set out exactly what is the message he wants to get across in a manner that others might understand.

15. The effect of reinstating the appeal will be that it may prove to be very difficult for all parties concerned and for the Court because I fear that further compliance with the rules in a meaningful way is not likely to occur. As each step is required to be taken, because of the limitations on the appellant's capacity to meet his obligations there is likely to be a default leading to the appeal lapsing.  However, that being said there is little opposition formally from the mother's counsel who has not really got instructions in the matter, or from the independent children's lawyer. 

16. Events may well be overtaking proceedings in relation to the appeal anyway because notwithstanding the orders of the Court that the father have nothing to do with the child and that the parties not be able to enter into a parenting agreement that contradicts the orders of the Court, it seems to be common ground that the child was voluntarily returned to the father at the weekend just passed and is now in his care.

17. This event has sufficiently alarmed the child representative that, I have been informed, steps have been taken under s 67ZA to notify the State child welfare authorities in New South Wales that they may now want to take an interest in the case, in which case the family law proceedings would likely be stayed whilst the State proceedings continue.

18. That being said, today I will focus entirely on the issue of getting the appeal back on track.  The urgency seems to have gone out of it by the events that have been described and in that event what I will do is make orders that will extend the times of each step that the father has to take, to give him time to consider whether indeed he wants to continue down the track of the appeal or whether, in light of subsequent events, he may think it more appropriate to apply to vary the original orders, rather than to try to challenge the original orders.

19. I suspect that on the face of the Notice of Appeal, at least, there is unlikely to be a successful challenge to the judgment.  That is not to say that it is incapable of being successfully challenged if identifiable grounds of appeal emerge and that ultimately they prove to have some substance to them.  But on the present reading of the Notice of Appeal it is very difficult to identify grounds that the Court would be likely to recognise as allowing it to interfere with the trial judge's judgment.  I am hesitant in simply not allowing the reinstatement because of the lack of apparent grounds because of what the decision of Neil v Nott (1994) 121 ALR 148 where the High Court said:

    A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.

20. Unfortunately, Mr Horton's Notice of Appeal does not really give any clues into any rationally recognised grounds of appeal that might emerge.  That having been said, I propose to make orders that will do the following:

    1.The application filed on 1 December to reinstate the appeal filed 6 September 2006 is granted subject to compliance with the following conditions:

    (a)the appellant file and serve a pre-argument statement on or before 9 February 2007; and

    (b)file and serve a draft index to the appeal books on or before 9 March 2007

    otherwise the appeal is deemed to be abandoned.

    2Reserve the wife's costs of this day.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate: 

Date:  22 December 2006