HORWOOD & HARKER - [2016] FamCAFC 252

FAMILY COURT OF AUSTRALIA

HORWOOD & HARKER

[2016] FamCAFC 252

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where explanation for the failure to file a Notice of Appeal in timely way is inadequate – Where the proposed appeal is against consent orders made a year prior – Where consideration of the grounds of appeal establish that it would not occasion an injustice to refuse an extension of time – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where explanation for the failure to file a Notice of Appeal in a timely way was adequate – Where the proposed appeal is against parenting orders and the interests of justice weigh in favour of an extension of time – Extension granted.

Family Law Rules 2004 (Cth): rr 22.02, 22.03, 22.12

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Horwood

RESPONDENT:

Ms Harker

FILE NUMBER:

PAC

5626

2012

FIRST APPEAL NUMBER:

EAA

178

2016

SECOND APPEAL NUMBER:

EAA

179

2016

DATE DELIVERED:

24 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

24 November 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

2 September 2016; 5 August 2015

LOWER COURT MNC:

[2016] FCCA 2289

REPRESENTATION

FOR THE APPLICANT:

In person

FOR THE RESPONDENT:

In person

Orders

That the Application in an Appeal filed on 14 October 2016 in EAA 178/2016 against the orders of Judge Donald made on 2 September 2016 be allowed and that the appellant file and serve his Notice of Appeal within seven (7) days.
That the Application in an Appeal filed on 14 October 2016 in EAA 179/2016 against the orders of Judge Donald made on 5 August 2015 be dismissed.
There be 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 Horwood & Harker 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EAA 178 of 2016; EAA 179 of 2016
File Number: PAC 5626 of 2012

Mr Horwood

Applicant

And

Ms Harker

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the Court are two Applications in an Appeal and supporting affidavit material both filed 14 October 2016 by Mr Horwood (“the father”) seeking an extension of time to appeal against two sets of orders made by Judge Donald in parenting and financial proceedings.
It is noted in both Applications in an Appeal that the father seeks orders to adduce further evidence in the appeal. All that needs to be said on this point is that these are matters for any Full Court hearing the relevant appeals and need not be addressed today.
The parenting proceedings concern the parties’ two sons, R who is currently seven years of age and B who is currently five years of age (“the children”). Ms Harker is the children’s mother and the respondent to the applications (“the mother”). The mother says both applications should be dismissed.
The first proposed appeal (EAA 178/2016) relates to certain parenting orders made on 2 September 2016 which provide for the mother to have sole parental responsibility for the children (Order 1); for the children to live with her (Order 2); for the father’s time with the children to be increased from two to four nights per fortnight during the school term conditional upon him relocating to a residence within five kilometres of the children’s school (Order 4). The father also appeals against orders relating to time on Father’s Day (Order 6(c)), orders which require the parents to facilitate the children’s attendance upon a specified general medical practitioner when required, and to facilitate telephone contact with the other parent when the children are in their care (Orders 16 and 17), as well as orders permitting each parent to travel with the children outside Australia provided they comply with specified conditions (Order 24).
By his draft Notice of Appeal in EAA 178/2016 the father seeks orders in similar terms as those sought by him at first instance, in particular, that the parties have equal shared parental responsibility for the children; that the children spend time with the father for 5-6 nights per fortnight; and for the parties to live within a 10 kilometre radius of the children’s school, with such proximity requirement to cease when the children reach grade five. The father also seeks specific orders in relation to time on special occasions, telephone communication, overseas travel, attendance on medical practitioners and an order for costs.
The second proposed appeal (EAA 179/2016) relates to consent orders made on 5 August 2015 which provide, inter alia, for the parties to bear their own costs in relation to the financial and child support departure proceedings. By his draft Notice of Appeal the father seeks an order for costs of and incidental to the proceedings at first instance.
In any event, as I said earlier, the mother opposes the applications and seeks an order that they be dismissed.

Relevant background

So as to give the applications context, it is necessary to refer to some brief background facts. These are largely taken from his Honour’s reasons and the documents filed in support of the applications.
The parties commenced cohabitation in February 2005 and married in 2011.
The parties’ first child, R was born in 2009.
The parties’ second child, B was born in 2011.
Having separated under the one roof, the parties ceased to cohabit when in September 2012 the father vacated their home and moved in with his parents. The children remained with the mother and spent limited time with the father.
On 14 December 2012 the father instituted proceedings in the then Federal Magistrates Court of Australia.
On 2 April 2013 interim parenting orders were made which provided for the parties to have equal shared parental responsibility for the children, and for the children to live with the mother and spend non-overnight time with the father.
The final hearing of the proceedings was heard in three tranches from June 2014 to August 2015 and spanned over nine days, with further written submissions being received in December 2015. Over the course of the proceedings orders were sought in relation to parenting, property and child support departure, however by the time the final hearing concluded the issues in dispute were significantly narrowed to parental responsibility, time between the children and the father and a discrete issue concerning the making of future child support applications.
This was made clear by the primary judge at [1] of his reasons for judgment, wherein his Honour observed:
The matter dragged over a significant period of time as a result of estimates of hearing time being significantly shorter than the reality. Nevertheless, by the time the hearing of the matter reached its end, the dispute had been significantly narrowed.
On the father’s evidence on the last day of the hearing, being 5 August 2015, the parties were advised by the primary judge that he would shortly be retiring and as a consequence, if the matter did not conclude it would have to be transferred to the Family Court of Australia and the trial would need to start all over again.
On that same day the parties entered into consent orders, which finalised the property settlement proceedings and largely concluded the child support departure proceedings, save for the discrete issue as to the making of future child support applications which is irrelevant for present purposes. Relevantly, Order 5 of the consent orders provided that the parties bear their own costs of and incidental to the financial and child support departure proceedings. The father seeks to appeal that order in his draft Notice of Appeal in EAA 179/2016.
Following the receipt of written submissions concerning parenting matters, on 2 September 2016, the primary judge delivered reasons for judgment and made parenting orders which are the subject of the first appeal in EAA 178/2016.
On 14 October 2016 the father filed draft Notices of Appeal and the subject applications in respect of both appeals.

Discussion

Chapter 22 of the Family Law Rules 2004 (“the rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 sets out the timeframe within which an appeal is to be filed.
Rule 22.02 provides for a party to make an application for leave to appeal and r 22.12 sets out some examples of procedural orders which may be made in respect of such applications.
In this case, the last day for filing an appeal in respect of EAA 178/2016 was 30 September 2016, and in respect of EAA 179/2016 was 2 September 2015.
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. Discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave.
In order to determine whether or not compliance with the times fixed by the rules would have the rules become instruments of injustice, it is necessary to consider the possible merits of the proposed appeal. The point being, refusal of an application to extend time for an unmeritorious appeal would not work an injustice.
The contents of the father’s affidavits filed in support of the two applications are identical in their content.
The effect of the father’s evidence is that on 30 September 2016, being the last date for filing an appeal against the orders of 2 September 2016, the father attended the Eastern Appeals Registry and attempted to file draft Notices of Appeal, as well as the instant applications for an extension of time. On that occasion the father had a discussion with a member of the registry staff who informed him that the documents would need to be reviewed before they could be accepted for filing. Annexed to the father’s affidavit is a receipt confirming that the documents were received by the appeals registry on 30 September 2016. Subsequently the father was advised by telephone call from the registry on 5 October 2016 that the documents were defective and would not be accepted for filing and that an application for an extension of time would need to be filed.
It appears the father made further attempts to contact the registry on 6 October 2016 (both in person and via telephone), to ascertain if he could file an Amended Notice of Appeal. On that occasion he was advised by staff that his only course of action would be to file an application for an extension of time. It was on that basis that on 14 October 2016 the father filed the two instant applications.
With respect to the father’s grounds of appeal it is to be noted that on the father’s evidence, the issues in dispute were caused to be narrowed on the last day of the hearing as a result of the prospect of his Honour retiring in the not too distant future and the consequences which follow should the trial not be concluded within the allocated, albeit already substantially extended time. One of the complaints raised by the father in his affidavit in support of the application is that this meant that many issues were not able to be tested during the hearing. Given the length of the trial, this assertion should not be accepted. In any event, this complaint gives rise to one of the father’s proposed grounds of appeal, that being that he was not afforded procedural fairness. On my preliminary view of the material, it is doubtful that that claim could be made out in a way that might attract appellate intervention.
Otherwise, as the mother submits, the grounds lack particularity and it is for this reason that I sought to tease out with the father this morning what it is he sought to agitate in relation to the various other grounds of appeal. All that can be said at this stage is that although it is not clear that the grounds, even in an amended form, would attract appellate intervention, they are not so lacking in merit that I would at this stage be comfortable saying that the proposed appeal is doomed to fail. It may be weak, but it is not at this point apparent that it is doomed. However, greater weight should be given to the father’s attempts to file what he thought were the correct documents within time. I note the father’s advice this morning that if time is extended, he would be seeking to amend the grounds so that the particularity required is reflected therein.
On balance, I am persuaded that the father has provided an adequate explanation for his delay in filing his Notice of Appeal and all relevant matters considered, his application should be granted. I am conscious that this requires that the respondent goes through a prolonged period of ongoing litigation when she was undoubtedly relieved that the litigation was over. I accept in this regard that there is some prejudice to the respondent by this decision, but the interests of justice weigh in favour of an extension of time.
I do not take that view in relation to the proposed appeal against the consent orders of 5 August 2015. The father’s affidavit in support of his application details the circumstances in which the consent orders were made, including the Court events following the hearing. However, in circumstances where the father had legal representation by a solicitor and counsel in the period following 5 August 2015, I cannot see why the father waited until after judgment was delivered in the parenting matters before filing his notice of appeal against the consent order of 5 August 2015. The grounds of appeal demonstrate no basis for appellate intervention and relate, as the father said, essentially to appeal EAA 178/2016.
It is not apparent to me that the father has turned his mind in the manner which he should to the basis upon which he might establish an error of law concerning, and I emphasise this, a consent order. Not only does the father fail to provide an adequate explanation for his delay, he has not established that there is even a remote prospect of a success in relation to that appeal.

Conclusion and costs

I am of the view that there would be no injustice in refusing the father’s application for an extension of time to appeal EAA 179 of 2016 and with the orders being over a year old, the prejudice to the respondent is manifest if an extension of time would be given. That aspect of the applications will, therefore, be dismissed.
The parties agree there should be no order as to costs.

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 24 November 2016.

Associate:

Date: 1 December 2016