Hymer and Bardley
[2020] FamCAFC 220
•25 August 2020
FAMILY COURT OF AUSTRALIA
| HYMER & BARDLEY | [2020] FamCAFC 220 |
| FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the applicant provides no satisfactory explanation for the failure to file a Notice of Appeal within time or the delay in bringing this Application – Where the proposed appeal has no prospects of success – Where it is beyond doubt that the interests of justice demand that the application for an extension of time be dismissed – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 |
| APPLICANT: | Mr Hymer |
| RESPONDENT: | Ms Bardley |
| FILE NUMBER: | PTW | 6061 | of | 2012 |
| APPEAL NUMBER: | WEA | 11L | of | 2020 |
| DATE DELIVERED: | 25 August 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 August 2020 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 28 May 2019 |
| LOWER COURT MNC: | [2019] FCWAM 77 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR ADVOCATE FOR THE RESPONDENT: | Ms Thomson |
| SOLICITOR FOR THE RESPONDENT: | Sue Thomson Solicitors |
Orders
The Application in an Appeal filed on 24 June 2020 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 Hymer & Bardley 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: WEA 11L of 2020
File Number: PTW 6061 of 2012
| Mr Hymer |
Applicant
And
| Ms Bardley |
Respondent
EX TEMPORE REASONS FOR JUDGMEN
Before the court today is an Application in an Appeal filed by Mr Hymer (“the father”) on 24 June 2020. There are a number of orders sought in that application, but as the father knows, the application was only accepted by the registry of the court in relation to the first order sought. That is an order, in effect, for an extension of time to file a Notice of Appeal against orders made by Magistrate Glass on 28 May 2019. None of the other orders sought in the application are orders that can be made on such an application.
In support of the Application in an Appeal the father has filed an affidavit, also on 24 June 2020, and as is required, he has provided to the court a Notice of Appeal which is the Notice that he would wish to proceed on, in the event that he is successful in obtaining an extension of time.
Ms Bardley (“the mother”) filed a Response to the Application in an Appeal on 13 August 2020. In that Response the orders sought are first, dismissal of the Application in an Appeal, and secondly, an order that the father pay the mother’s costs of and incidental to the application. There was an affidavit in support of that Response, also filed on 13 August 2020.
Helpfully, both parties have filed written submissions.
On 20 August 2020 the mother filed written submissions in support of the Response, and on 21 August 2020, there were what is described as responding submissions, filed by the father. I add for completeness that on the same day, namely 21 August 2020, the mother filed amended submissions but the amendment contained in those submissions has no relevance to the appeal. It was merely correcting an incorrect date in the original submissions.
As I have indicated to the parties today, I have read all of those documents, together with the reasons for judgment of the Magistrate. I have also helpfully had access to the transcript of the hearing before the Magistrate on Wednesday 8 May 2019.
Pursuant to the Family Law Rules 2004 (Cth) (“the Rules”) the Notice of Appeal had to be filed within 28 days of the orders that had been made, and in round terms, that would have taken it to the end of June 2019. As can be seen, no Notice of Appeal was filed within that prescribed timeframe, and it was not until 24 June 2020 that the application now before the court was filed. Again, in round terms, that is a further 12 months from when the Notice of Appeal should have been filed.
The relevant principles
The principles in relation to applications such as this are well settled, and, 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…
As his Honour has highlighted, there are a number of relevant factors that need to be considered. First, there is the explanation or reasons for the failure to file a Notice of Appeal within time, and of course, any delay in bringing an application for an extension of time, as we have here.
Secondly, there are the merits of the appeal, and an assessment has to be made as to the success or otherwise of the appeal because, of course, if there is no merit in the appeal, then it would be pointless to extend the time to file a Notice.
Thirdly, there is the prejudice to the parties, depending on the result. And by that I mean the prejudice to the father in the event that his application is not successful, and on the other hand, the prejudice to the mother in the event that the application is successful.
Thus, the fundamental issue is whether an extension of time is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, it is necessary to consider the factors that I have mentioned.
There are other factors that can be relevant such as the history of the proceedings, the nature of the proceedings, and the conduct of the parties, but having read the documents in this matter, it seems to me that the answer to the application can be found in a consideration of the three primary factors that I have outlined.
The explanation for the failure to comply with the relevant timeframe
In relation to this issue I need to go to the affidavit filed by the father on 24 June 2020, where he sets out in paragraph 1 a number of subparagraphs, which he suggests provide the reasons for the failure to file within time, and then the subsequent delay in filing the application:
1.I apologise to the Court for the delay in filing my Application for an Appeal and I submit the following reasons for the delay.
a.I have been under Immense mental stress and anxiety, due to the immense mental torture and mental abuse inflicted on myself, through being wrongfully separated from my daughter. This has directly caused me great uncertainty and lack of focus in decision making and a general lack of self-confidence, strength and reliance. Therefore, I was continually uncertain as to whether I should file an appeal, due to many conflicting and complicated factors.
b.I did not file an Appeal within the time required, as I was under Immense mental stress and anxiety (identified in Item a. above) and I did not believe that there was any chance of a successful appeal, due to my personal experience that the Family Court WA is unable to act in a just manner. This is confirmed by my reply to Magistrate Glass when he handed down his Judgement/orders on 28 May 2019. My reply was, “I am very disappointed and surprised, giving your comments during the hearings, but what can I expect, this is the Family Court WA.”
c.The common belief by our West Australian society that the Family Court does not act justly, including Appeals where there is a record of less than 3% success from filing an appeal, also provided significant weight on myself against filing an Appeal.
d.The decision by the Federal Government in September 2019 to hold a Joint Select Committee Inquiry into the Family Laws of Australia, has encouraged me to re-think the possibility of a successful appeal. In particular Item ‘h’ of the Terms of Reference, which is attached as Appendix A. Refer App A)
e.The progress of the Joint Select Committee Inquiry into the Family Laws of Australia, has further encouraged me to now file an appeal, believing that there will be Justice. That is, of the greater than 1,500 submissions ‘accepted’ by the Committee thus far, there is in excess of 1,300 Personal Submissions, being complaints against the Family Court.
f.The fact that the Public is now beginning to become aware that the Family Court is not perfect, has further encouraged me to now file an appeal, believing that there will be Justice.
g.Social Media is awash with complaints against the Family Courts and demanding changes, including that Judges and Magistrates be held accountable and not to continue to be protected from failing to act with honesty, integrity, diligence, transparency and without bias, has further encouraged me to now file an appeal, believing that there will be Justice.
One example of significant Social Media demands is that there be a State Coroner’s Inquest into [a] family tragedy in [Western Australia], with the purpose to uncover and learn from any actions / inactions by the Family Court that may have contributed.
h.Increasing complaints by the Media, demanding that they be allowed to publish court cases of Public Interest, has further encouraged me to now file an appeal, believing that there will be Justice.
i.Studying and Learning about Family Law has taken considerable time.
j.Examples of my experience of the Family Court of WA not acting in a Just manner and inflicting significant mental torture and mental abuse on myself, is provided in my letter of complaint to the Principal Registrar of 11 April 2016, which is attached as Appendix B. (Ref Appendix B)
(Errors and omissions as per original)
As can be seen, the father says that he chose not to institute the appeal because he was uncertain as to a number of conflicting and complicated factors. For example, he says he was under immense mental stress and anxiety, and he did not believe that there was any chance of a successful appeal as a result of his personal experience in the Family Court of Western Australia. He suggests that there is only a three per cent success rate in appeals. Pausing there, I have no idea where the father has obtained that statistic, but I can say as Administrative Head of the Appeal Division of the Family Court of Australia, that it is completely inaccurate.
The father refers to the Inquiry instituted by the Federal Government in September 2019, and he says that he has been encouraged by the decision to hold that Inquiry, and by its progress, in terms of the number of submissions that have been received by the Joint Select Committee. He also refers to social media containing complaints against family courts, demanding changes and requiring Judges and Magistrates to be held accountable. The father also cites what he describes as, increasing complaints by the media about court cases not being able to be published.
That is all very interesting, but none of those reasons explain in any way, or provide an adequate explanation, for the failure by the father to file a Notice of Appeal within time, and to delay filing the application before the court today for a further 12 months.
It is not open to the father to simply say, well, I am not sure whether I am going to appeal, bit uncertain about that, but I have been under some stress and I see there is an Inquiry into family law, where a number of complaints have been made, and I am encouraged by all that, so I think I will put in an application seeking an extension of time.
That is simply not good enough.
The prospects of success of the proposed appeal
Here I need to consider the Notice of Appeal provided by the father.
Therein the father seeks leave to appeal, and in support of that application he has set out six and a bit pages of what I would describe as narrative, albeit split up into paragraphs, wherein he sets out his complaints about the Magistrate, and the system, and seeks to, in effect, rerun his case below before the Appeal Court.
First, there is no need for the father to obtain leave to appeal. If he had filed a Notice of Appeal within time, he could have appealed as of right. And although I have read those six pages, none of what is in there has any relevance to the application that is before the court today.
Secondly, this is not a forum for an applicant in the father’s position to simply lay out complaint after complaint about the Magistrate, without addressing the reasons of the Magistrate, the orders made by the Magistrate, and the nature of the proceedings before the Magistrate. Nor is it the opportunity to complain about the system.
Turning then to the grounds of appeal, which is where the issue of merit arises.
The grounds of appeal comprise 10 and a half pages of, again, what I would describe as narrative, albeit also split up into paragraphs. Once again though, what is apparent from those pages, is a failure by the father to appreciate what an appeal is about, what a ground of appeal is, and what, legitimately, he can include in this document. I mentioned above that what is apparent in the early part of the Notice of Appeal is an attempt by the father to rerun his case, and he repeats that here. An appeal is not about that. An appeal is a limited process where the onus is on the applicant, in this instance the father, to demonstrate appealable errors by the Magistrate. In the 10 and a half pages under this heading of grounds of appeal, the father has not done that. Instead, again there is a litany of complaints about the Magistrate, complaints about the system, and to repeat, an attempt to rerun the case.
Thus, in my view, there is no merit in what can loosely be described as the grounds of appeal. And to add to that, having read carefully, as I am obliged to do, the reasons for judgment of the Magistrate, the Magistrate has gone to extraordinary lengths to deal appropriately and adequately with the applications that were before him. I can find nothing in those reasons for judgment which smacks of appealable error. His Honour was perfectly correct on the material before him to come to the decision that he did, and make the orders that he did.
Sometimes, in an application such as this, it is not possible to be so definitive because, of course, the Judge is not sitting as the Full Court, and there is often less information before that Judge than would be before the Full Court. Often it can be said that it is not entirely clear what the appealable errors are, but given the lack of fulsome information it is appropriate to grant the extension, so that when the matter comes before the Full Court, and that Full Court has before it the full range of documentation, an appropriate decision about the merits of the appeal can be made.
Here though, that is not the case. I have sufficient information to make a definitive statement, as I have done, in relation to the merits of this appeal. I have the written submissions of the parties, which normally is not a feature of these applications, and I also have the transcript of the proceedings before the Magistrate, and that has enabled me to come to the conclusion that I have.
The prejudice to the parties depending on the result of the application
First, dealing with the prejudice to the father in the event that the application is unsuccessful.
The only prejudice that could conceivably be considered is that, if the application is refused, there is no appeal from that refusal, save and except by way of an application for special leave to appeal to the High Court of Australia. Now, of course, it may be that that is a route which a party might wish to take, but that is entirely up to that party. Given that there is no appeal to the Full Court of the Family Court of Australia, to stop the proceedings here by refusing the application, clearly would be a prejudice to the father, and the only way that could be overcome would be if the father determined to take the course I have indicated that is open, namely an application for special leave to appeal to the High Court of Australia.
On the other hand, there would be significant prejudice to the mother if the application was granted. As is pointed out in the written submissions filed on behalf of the mother, the parties have been separated for some nine and a half years. The financial settlement took place some seven and a half years ago. The mother has rearranged her affairs, has re-partnered, and importantly, she has had the full care of the child of the relationship, with little if any support from the father.
The mother is prima facie entitled to the benefits of the financial orders made in February 2013, and to finality in the litigation overall. If the application is successful, that prejudice far outweighs any prejudice to the father if the application is dismissed.
As I have indicated, the task is to consider where the justice of the case lies, and the relevant factors to be considered in that exercise are first, whether there is an adequate explanation for the failure to file the Notice of Appeal within time, and for the delay in bringing the application before the court. In that regard I have found, and I confirm, that there is no adequate explanation for either of those circumstances.
Secondly, there are the merits of the appeal. I have found and I confirm that there is no merit whatsoever in the proposed appeal.
Thirdly, there is the prejudice to the parties depending on the result. In that regard I have found, and I confirm, the prejudice to the mother if the application is successful, far exceeds the prejudice to the father if the application is not successful.
Thus, in my view, the justice of the case plainly requires that this application be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 25 August 2020
Associate:
Date: 3 September 2020
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