KEYNES & KEYNES
[2014] FamCAFC 169
•10 September 2014
FAMILY COURT OF AUSTRALIA
| KEYNES & KEYNES | [2014] FamCAFC 169 |
| FAMILY LAW – APPEAL – APPLICATION IN A CASE - Application to extend time to file a Notice of Appeal – Consideration of Chapter 22 of the Family Law Rules 2004 – Where orders made without reasons – Where reasons for judgment published 28 days later – Where the mother would be prejudiced if she was denied the opportunity to appeal matters of real significance – Where expedition sought and not opposed - Application to extend time granted and expedition ordered. |
| Family Law Rules 2004 (Cth): rr 22.02, 22.03, 22.12 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Keynes |
| RESPONDENT: | Mr Keynes |
| FILE NUMBER: | SYC | 1742 | of | 2014 |
| APPEAL NUMBER: | EA | 103 | of | 2014 |
| DATE DELIVERED: | 10 September 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 26 August 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 June 2014 |
| LOWER COURT MNC: | [2014] FCCA 1453 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney SC |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Watkins |
| SOLICITOR FOR THE RESPONDENT: | GA Lawyers |
Orders
The applicant be granted an extension of time until 4.00 pm on 15 September 2014 to appeal from the orders of Judge Scarlett made on 27 May 2014.
The respondent’s costs of the application filed 7 August 2014 are reserved to the Full Court.
In the event the applicant does not file a Notice of Appeal pursuant to order 1 of these orders, within 28 days of the date of default the respondent shall request that his costs application is relisted for further consideration by Ryan J.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Keynes & Keynes 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 SYDNEY |
Appeal Number: EA 103 of 2014
File Number: SYC 1742 of 2014
| Ms Keynes |
Applicant
And
| Mr Keynes |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Ms Keynes (“the mother”) for an extension of time to file a Notice of Appeal. The proposed appeal concerns interim parenting orders made in the Federal Circuit Court by Judge Scarlett on
12 June 2014. The order relates to the parties’ two children, J and P. The order requires the children to spend time with their father during school terms each week from after school on Monday until the commencement of school Thursday morning. In the event that the mother is given leave to file her Notice of Appeal out of time, she seeks to have her appeal expedited.
Mr Keynes (“the father”) is the children’s father and respondent in this application. It is his position that the mother’s application should be dismissed. In the event she is given leave to appeal he supports her application for expedition.
Background facts
So as to give this application context, it is necessary to record a few seemingly uncontroversial facts.
In 1997, the mother purchased the house which would become the family home.
The parties commenced cohabitation and were married in July 2007.
The two children, who are the subject of this proposed appeal, are J and P.
On 18 February 2014, the mother and father separated under the one roof.
After an altercation in March 2014, the mother moved out of the family home and taking the children with her moved in with her parents. The mother’s solicitors later wrote to the father asking him to vacate the home. He refused.
Although the parties were unable to agree about the children’s living arrangements, they were able to compromise their positions to the extent that the children commenced spending time with the father on three occasions each week for two to three hours at a time (initially supervised by the mother) and then for longer periods including overnight.
On 26 March 2014, the mother commenced proceedings in the Federal Circuit Court.
The father filed his Response on 17 April 2014. That same day the mother filed an Amended Application seeking an order restraining the parties from physically disciplining the children.
On 23 April 2014, she filed a Notice of Child Abuse, Family Violence or Risk of Family Violence. The mother claimed that the father used excessive force to discipline the children and that he had assaulted and threatened her.
Before the trial judge the father denied the mother’s allegations of family violence. The parties attended a child dispute conference on 16 May 2014.
On 27 May 2014, the matter came before Judge Scarlett for interim hearing. The issues between the parties were what arrangements should be made for the children to spend time with the father during school term and whether the father should vacate the family home and the mother have exclusive occupation. His Honour reserved his decision.
On 12 June 2014, his Honour made interim orders concerning the children and that the mother have exclusive occupancy. In relation to the children,
his Honour ordered that the children live with the mother and spend time with the father “[d]uring school terms from immediately after school on the Monday afternoon until the commencement of school on the Thursday morning in each week…” (order 4(a)).
His Honour published his reasons for the interim orders on 8 July 2014. It would appear the parties were not notified that judgment was to be delivered and it was received a couple of days later.
The most significant finding that his Honour appeared to rely on, when making the above order, is found at [56] of the reasons. His Honour noted that the mother works four days during the week while the father works from Thursday to Monday inclusive. It appears that he divided the children’s time between the parents to roughly coincide with their availability.
The mother filed this Application in an Appeal on 7 August 2014.
The father filed his Response to an Application in an Appeal on
25 August 2014. In his affidavit filed on 25 August 2014 the father points out that he has incurred significant legal costs already and can ill afford the prospect of costs associated with the mother’s proposed appeal. It is his position that the mother now seeks to agitate on appeal matters that were not raised before his Honour. That point not having been conceded, without a transcript, cannot be determined in this application.
The applicable rules and principles
Chapter 22 of the Family Law Rules 2004 (Cth) (“the rules”) deals with appeals.
Rule 22.03 sets out the timeframe within which an appeal is to be filed.
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. The 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 parties of the grant or refusal of leave.
Discussion
In support of her application, the mother filed an affidavit on 7 August 2014.
The mother says that she was not in a position to file a Notice of Appeal until she was able to seek and receive advice on the judgment. She retained a new solicitor to act on her behalf on 19 June 2014. Her new solicitor was on leave from 23 June 2014 until 11 July 2014. It is understood that the judgment was received by her solicitor’s office on 10 July 2014. This was the last day to file an appeal.
Judgment having been received, the mother sought counsel’s advice and having conferred with her new counsel on 6 August 2014 she filed this application the following day.
Counsel for the father appropriately acknowledged that the reasons for delay are adequately explained and weigh in favour of an extension of time. I agree.
The mother’s grounds of appeal challenge the adequacy of his Honour’s reasons for judgment. It is also said that his Honour failed to apply the statutory framework and overlooked the mother’s evidence that she had been the children’s primary caregiver, failed to consider the effect on the children of changing their circumstances in such a significant manner and erred in placing too much weight on the parties employment commitments by failing to order that the children live primarily in the matrimonial home with her. Before me, senior counsel for the mother expanded on the manner in which his Honour’s judgment would be challenged.
Counsel for the father emphasised that the order under appeal is both interlocutory and discretionary. It was pointed out that a family report had been ordered and the matter should be listed for a final hearing in about nine months. He skilfully teased out what he says are the flaws in the proposed challenge to his Honour’s orders.
It is accepted that if an extension of time is refused the existing orders are likely to continue for at least 12 months. Although it is accepted the mother could have filed a Notice of Appeal within time, she had nothing other than the orders by which to frame an appeal. It is accepted that in this case the mother required his Honour’s reasons for judgment in order to decide whether or not she could properly appeal. That factor, and that the mother would be prejudiced in that she would be denied the opportunity to appeal matters of real significance to her and potentially the children, warrants significant weight.
This is not a case where it could be said that the proposed appeal is so lacking in merit that in the circumstances leave should be refused.
Accordingly, an order will be made which will enable the mother to file a Notice of Appeal within seven days and the parties directed to attend a procedural hearing before the Regional Appeals Registrar.
I agree with the parties that the subject matter of the appeal makes it appropriate to order expedition.
On the basis that the mother sought an indulgence from the court because of her failure to comply with the rules, the father said she should pay his costs in the amount of $4,000. The mother does not cavil with the quantum of costs. However, senior counsel submitted that the manner in which the orders were made and reasons for judgment delivered, placed her in a difficult position for which she should not be penalized by having to meet her own, as well as the father’s costs. There is force in the submissions made on behalf of both parties. In this case, the appropriate course is that the father’s costs are reserved to the Full Court. In the event the mother decides against pursuing her appeal, the father’s costs application may be relisted before me.
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 10 September 2014.
Associate:
Date: 10 September 2014
0