Leary and Harman
[2017] FamCAFC 87
•28 April 2017
FAMILY COURT OF AUSTRALIA
| LEARY & HARMAN | [2017] FamCAFC 87 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – where the delay in receiving a sealed copy of the orders was outside of the control of the applicant mother – where there is an absence of prejudice to the father should leave be granted – where if the asserted considerations were not taken into account a recognised category of discretionary error may be established – where the mother has filed a fresh application in a case for interim parenting orders – where the mother has deposed to new evidence applicable to that application – where the application is to be heard within a month – where the proposed appeal would not be heard before the November sittings – where the proposed appeal lacks utility – where the application for an extension of time to file the Notice of Appeal is dismissed. |
| Family Law Act 1975 (Cth) ss 94AA(1), 94(2D)(e) Family Law Regulations 1984 (Cth) regs 15A(1)(a), 15A(2) Family Law Rules 2004 (Cth) rr 1.14(1), 1.14(2), 1.14(3) |
| Bant & Clayton [2014] FamCAFC 108 Chong & Chong [2016] FamCAFC 211 Gallo v Dawson (1990) 93 ALR 479 House v The King (1936) 55 CLR 499 Joshua & Joshua (1997) FLC 92-767 Lenova & Lenova (Costs) [2011] FamCAFC 141 Manotis & Manotis and Ors (No 2) [2016] FamCAFC 232 |
Tormsen & Tormsen (1993) FLC 92-392
| APPLICANT: | Ms Leary |
| RESPONDENT: | Mr Harman |
| FILE NUMBER: | BRC | 12383 | of | 2016 |
| APPEAL NUMBER: | NA | 10 | of | 2017 |
| DATE DELIVERED: | 28 April 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 24 April 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 February 2017 |
| LOWER COURT MNC: | [2017] FCCA 553 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Drysdale |
| SOLICITOR FOR THE RESPONDENT: | Hopgood Ganim |
Orders
The Application in an Appeal filed 15 March 2017 is dismissed.
Each party bear his or her own costs.
Service of the wife’s Application in a Case filed 20 April 2017 upon the solicitors for the father be deemed effected by the provision of a copy of the same during the hearing of this application on 24 April 2017.
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 Leary & Harman 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: NA 10 of 2017
File Number: BRC 12383 of 2016
| Ms Leary |
Applicant
And
| Mr Harman |
Respondent
REASONS FOR JUDGMENT
On 15 March 2017 the applicant mother filed an application in an appeal seeking to file a Notice of Appeal out of time.
The draft Notice of Appeal, annexed to her supporting affidavit, seeks to appeal interim parenting orders made by Judge Jarrett on 1 February 2017. The Notice of Appeal was required to be filed by 1 March 2017. It should be appreciated that the mother is only two weeks out of time.
Pursuant to s 94(2D)(e) of the Family Law Act 1975 (Cth) (“the Act”), an application to extend time to appeal may be heard and determined by a single judge of the Appeal Division. The power to extend time is provided in rr 1.14(1) to (3) of the Family Law Rules 2004 (Cth) (“the Rules”).
The orders the mother seeks to appeal are interim parenting orders: no leave to appeal is required (s 94AA(1) of the Act, Family Law Regulations 1984 (Cth) reg 15A(1)(a), (2)).
The principles governing an application to extend time are well established in many decisions of the Full Court.[1]
[1]Recent examples include Bant & Clayton [2014] FamCAFC 108, per May J; Chong & Chong [2016] FamCAFC 211, per Strickland J and Manotis & Manotis and Ors (No 2) [2016] FamCAFC 232, per Thackray J. The decisions of the Full Court reference, in particular, the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479.
In Joshua & Joshua (1997) FLC 92-767, at 84,440, the Full Court said, citing McHugh J in Gallo v Dawson:
… the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardships or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise; and the desirability, in the public interest, that there be finality to litigation …
The failure to establish particular factors informing the discretion is not a bar to its exercise; the fettering of the wide discretion given to the court to remedy genuine injustice wreaked by strict adherence to the rules being undesirable and not warranted by any legislative direction.[2]
[2] Tormsen & Tormsen (1993) FLC 92-392.
On 1 February, the primary judge made orders that the child live with the father for three days in the first week of a fortnight, and three days in the second, and the mother for the balance of the time. Additional orders were made for special days such as Christmas and birthdays. The child was also placed on the airport watch list until further order. His Honour delivered oral reasons.
The orders made were proposed by the father, and opposed by the mother – the mother sought at that hearing the child spend one overnight and four afternoons each fortnight with the father, allowing for further time where the afternoon time falls on a day which is not a school day.[3]
Factors Informing the Discretion
[3] Response to Initiation Application, Annexure “B”.
Explanation of Delay
In the applicant mother’s affidavit filed 18 April 2017, she states:
… the sealed orders were received on the 28th of February, 2017… my solicitor, handed them to me in person during our mediation conference … [on 28 February 2017].
The applicant mother contends that the court’s delay in providing the orders to the parties was instrumental in her inability to file her appeal in time. However, while the applicant mother and her solicitors may not have had a sealed copy of the orders, they were made aware of the substance of the orders on the day they were made. Preparations could have been made in relation to appealing those orders prior to the court sending a sealed copy to the parties.
Be that as it may, it can be accepted that the delay in receiving the sealed copy of the orders was outside the control of the mother. She represents herself on this application and I accept for the purposes of this application that it impacted her ability to file a Notice of Appeal within the prescribed 28 days.
No argument is persuasive of hardship or prejudice being caused to the father occasioned by the two-week delay.
Merits of the Proposed Appeal
In considering the merits of the appeal, the proposed grounds of appeal, set out in the draft Notice of Appeal annexed to the applicant mother’s affidavit filed 15 March 2017, appear to be focussed on his Honour failing to take account of relevant considerations, or attaching too little weight to considerations which were taken into account.
In the mother’s affidavit before the primary judge, filed 30 January 2017, she raises a number of issues including the previous parenting arrangements between the parties; the relationship between the child and his sister (who is the mother’s child of a previous relationship); the effect these arrangements had on the child; and allegations of family violence. Each and all are relevant considerations. If, as asserted, his Honour failed to take them into account, a recognised category of discretionary error may be established.[4]
[4] House v The King (1936) 55 CLR 499.
Additional Factors Informing the Discretion
Taken together that factor; the very short length of the delay in the filing of the application seeking to appeal; and the absence of prejudice to the respondent occasioned by the grant of leave point to the discretion being exercised in favour of the extension of time.
However, just as the failure to establish particular factors does not limit or fetter the broad discretion (see, for example, Tormsen, above) so, too, matters in addition to the specific factors just discussed also do not limit the discretion.
Here, particular factors inform the extremely limited utility of any extension of time.
The Futility of the Appeal
It was uncontroversial before me that the father’s application for final parenting orders was next listed before the court on 18 May 2017 and on that date the matter was expected to be listed for trial. Trial dates were expected later this year.
As was explained to the self-represented mother, it is highly unlikely that, if the mother’s application for extension of time to appeal was granted, the appeal would be heard before the November sittings of the Full Court.
In light of that information conveyed to the mother, she informed the court that, on 20 April 2017 while the hearing of this application was pending, she had filed an Application in a Case seeking further interim parenting orders.
In the affidavit accompanying that application the mother deposes to circumstances which have arisen since the hearing on 1 February 2017, including allegations of sexual abuse of the child attributed to an alleged house guest of the father. The Notice of Risk filed 30 January 2017 by the mother, which was before the primary Judge does not assert any such risk to the child (it refers to allegations of family violence against the mother and an alleged attack on the family dog).
The mother’s Application in a Case is listed for hearing on 18 May 2017; that is, the date that the matter is next before Judge Jarrett. The central issue in those proceedings will be the parenting orders that best meet the best interests of this young child pending the hearing and determination of the application for final orders.
That is, the central issue before the court on 18 May will be precisely the same as the very issue at the centre of the appeal which will not be heard until November and the very issue which would be subject to consideration by the Full Court in the event that error was established. On the best information given to me at the hearing of this application, by November the trial of the application for final parenting orders may well be either heard or listed for hearing.
In my view, the appeal has no meaningful utility. I consider that a decisive matter in the exercise of the instant discretion. The application to extend time should be refused.
There was a debate before me as to whether the mother’s most recent Application in a Case had been served. A copy was provided to the counsel for the father during the hearing by the court. An order will be made that the provision of that document is effective service of it. The mother and the solicitors for the father should communicate forthwith to ensure that a copy of the mother’s accompanying affidavit has been received and, if not, arrangements made for it to be served as soon as practicable.
Costs
Counsel for the father sought that should the application be dismissed, the mother pay the father’s costs.
The mother stated that she is on a parenting pension, which is her only income, and is also studying. She owns no property and she does not have the means to meet an order for costs.
While impecuniosity is not an answer for an application for costs,[5] the application was not frivolous nor entirely lacking in merit. The application for extension of time fails primarily because of other contingencies.
[5] See, for example, Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12].
I will order that each party bear their own costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 28 April 2017.
Associate:
Date: 28 April 2017
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