Leonard and Timmins
[2011] FamCAFC 237
•9 December 2011
FAMILY COURT OF AUSTRALIA
| LEONARD & TIMMINS | [2011] FamCAFC 237 |
| FAMILY LAW ─ APPEAL ─ Application for Notice of Appeal to be reinstated ─ Where appeal deemed abandoned pursuant to the Rules ─ Where the appellant was a few days out of time in seeking to file his draft appeal index ─ Where evidence relied upon by the appellant in support of his reinstatement application provided little basis for doing so ─ Where it is in the interests of justice for all parties and for the Independent Children’s Lawyer, that, whatever the fate of this challenge it be heard and determined, provided that, contrary to events thus far, the appellant complies with directions to prosecute his appeal in accordance with the Rules, and in a diligent and timely fashion ─ Appeal reinstated |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Mr Leonard |
| RESPONDENT: | Ms Timmins |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 1121 | of | 2007 |
| APPEAL NUMBER: | EAA | 123 | of | 2011 |
| DATE DELIVERED: | 9 December 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 9 December 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 October 2011 |
| LOWER COURT MNC: | [2011] FamCA 649 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | N/A |
| SOLICITOR FOR THE APPELLANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | N/A |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Scally |
Orders
That provided that the appellant father fully complies with orders 2, 3 and 4 hereof, the Notice of Appeal filed 17 October 2011 File Number EAA 123 of 2011 be reinstated.
That the appellant father be responsible for the preparation of the appeal books.
That the appeal books for the appeal are to comprise each of the following documents:
· Any Amended Notice of Appeal;
· Orders of the Judge;
· Reasons for judgment of the Judge;
· Transcript of the proceedings relevant to the appeal;
· Application and response and any relevant affidavit material;
· Exhibits tendered before the Judge; and
· Summary of Argument
That the appellant father file in the Sydney Registry of the Court within 8 weeks (56 days) of the date hereof four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve two (2) copies of the appeal books on the solicitors for the respondent mother, together with a copy of the certificate.
That in the event of the appeal being reinstated the Appeals Registrar list the appeal for hearing before the Full Court at the Sydney sittings of the Full Court in 2012.
That in the event of the appellant father failing to comply with these directions the Appeals Registrar list the Notice of Appeal for dismissal in the first available sittings of the Full Court.
That the costs of the application in the appeal filed 18 November 2011 and incidental to these proceedings be reserved to the Full Court.
That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
IT IS NOTED that publication of this judgment under the pseudonym Leonard & Timmins is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 123 of 2011
File Number: NCC 1121 of 2007
| Mr Leonard |
Appellant
And
| Ms Timmins |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE
REASONS FOR JUDGMENT
This is an application filed by Mr Leonard (“the appellant”), to reinstate an appeal lodged by him against orders made by Fowler J on 7 October 2011 in parenting proceedings between the appellant and Ms Timmins (“the respondent”). The appellant was, as is clear from the record, a few days out of time in seeking to file his draft appeal index. His appeal was accordingly deemed to be abandoned pursuant to the Family Law Rules 2004 (Cth).
The appellant moved expeditiously to seek to reinstate the appeal. With respect to the appellant, the evidence relied upon by him in support of his reinstatement application provides little basis for doing so. The Court is not able to find on the balance of probabilities that the appellant has adequately explained his failure to comply with the Rules in relation to a draft index, but as the course of discussion this morning would confirm, that is in reality a comparatively minor matter for reasons which will be suggested.
As is not in doubt, if an abandoned appeal is not reinstated it is not thereby dismissed. There remains a lacuna in that the appeal is neither on foot and progressing towards a hearing by a bench of three Appeal Court Judges, nor is it dismissed. This may seem a strange concept to the lay person. As explained to the respondent, to obtain a dismissal of the abandoned appeal, it must be listed before a bench of three judges and it is not a matter of those judges, in effect, giving a default judgment, by simply dismissing the abandoned appeal without hearing the appellant before doing so. There are good reasons why that is so. They involve natural justice.
The notion in our law that to make orders which have a significant impact upon the rights of a citizen without the citizen having a hearing on the merits, though never unavoidable, is very much the exception to the rule. Other things being equal, and subject to prejudice to other parties to the litigation, the Courts in this land, and the Courts in England from which our legal system derives, afford parties a hearing on the merits before making orders which have a significant impact upon their rights.
The issue of prejudice to the respondent is relevant. The respondent asserts that there has been a long history of these proceedings being drawn out, she asserts, by the acts or omissions of the appellant, and, the respondent asserts, a history of non-compliance. In this Court, and it is in this Court that the history of proceedings is most relevant, that is to say, in the Full Court, the appellant has committed what might be styled a misdemeanour rather than something in the nature of a felony.
The prejudice to the respondent if this appeal is reinstated at first glance appears not insignificant. Instead of having the appeal continue to be abandoned, it is reinstated and moving towards a hearing. The superficial prejudice to the respondent arising from reinstating the appeal is more apparent than real when it is considered, as explained to the respondent, that before the appeal can finally be disposed of, and the respondent know that she has a judgment which is unassailable, the abandoned appeal, would need to be listed before three judges who would hear the appellant, if he sought to be heard before dismissing his appeal. If the appellant demonstrated merit, the Court would not proceed automatically to dismiss the appeal, but potentially to reinstate it, and set it down for hearing on another occasion. The delays inherent in that occurring should be obvious and, with respect, the respondent appeared to appreciate those when the Court explained them to her.
In the alternative and assuming, contrary to what has just been suggested, that the Full Court in effect granted default judgment, and summarily dismissed the abandoned appeal without consideration of the merits, the respondent may have some difficulty if, as would be his only avenue of redress, the appellant sought special leave to appeal in the High Court. Whether that were granted or not, the finalisation of the matter would be prolonged. There would be inconvenience and expense for the respondent. In those circumstances, and given that there is a presumption that the trial judge’s decision is correct, and that the obstacles to success of appeals against discretionary judgments, such as is involved in this case, are well known and substantial, the prejudice to the respondent in reinstating the appeal, particularly as it is able to be reinstated on terms which can be self-executing, is not a matter which assumes significance.
The matter of greater significance is the interests of justice. It is in the interests of justice for all parties and for the Independent Children’s Lawyer (“the ICL”), that, whatever the fate of this challenge, it be heard and determined, provided that, contrary to events thus far, the appellant complies with directions to prosecute his appeal in accordance with the Rules, and in a diligent and timely fashion. As explained to the respondent, the Court is not without power in terms of the ability to make sure that that happens or that, if it does not, the respondent is not further inconvenienced. For those reasons, the Court will conditionally reinstate the appellant’s notice of appeal, that is to say, provided that within eight weeks, a time period which has been raised squarely with the appellant, he files and serves his appeal books and outline of argument, the contents of which have been explained to the appellant. His appeal should be reinstated and listed for hearing by the Appeals Registrar at a time and date determined by the Appeals Registrar.
If the appellant fails to comply with the condition precedent to the reinstatement of his appeal it will remain abandoned, and be dealt with in the usual way. That may not result in the appeal being summarily dismissed or dismissed in a fashion analogous to summary dismissal, but having had a second chance, the Court could be expected to be less cautious about dismissing the re-abandoned appeal.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 9 December 2011.
Associate:
Date: 15.12.2011
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