Lott and Graham & Anor
[2014] FamCAFC 56
•20 March 2014
FAMILY COURT OF AUSTRALIA
| LOTT & GRAHAM AND ANOR | [2014] FamCAFC 56 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL - Application for a review of orders made by the Regional Appeals Registrar to refuse extension of time within which to file appeal books – Where the appeal is also listed for consideration of whether the appeal should be dismissed – Where the subject matter of the appeal is of some significance - Where it is accepted that if an extension of time is granted the appellant will be likely to file the appeal books – Where self-executing orders for dismissal of appeal made – HELD – Orders set aside – Extension of time granted but in the event of non-compliance appeal dismissed. |
| Family Law Rules 2004 (Cth): r 22.45, 22.13, 1.14 |
| APPLICANT: | Mr Lott |
| 1ST RESPONDENT: | Mr Graham |
| 2ND RESPONDENT: | Ms Graham |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Wahhab |
| FILE NUMBER: | SYC | 660 | of | 2009 |
| APPEAL NUMBER: | EA | 76 | of | 2013 |
| DATE DELIVERED:: | 20 March 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland & Ryan JJ |
| HEARING DATE: | 20 March 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 May 2013 |
| LOWER COURT MNC: | [2013] FamCA 389 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Lott appeared in person |
| FOR THE 1ST RESPONDENT: | Mr Graham appeared in person |
| FOR THE 2ND RESPONDENT: | Ms Graham appeared in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | York Law |
Orders
The application to review Order 1 of the orders made by the Regional Appeals Registrar on 16 January 2014 is allowed.
Order 1 made on 16 January 2014 be set aside.
The time for the appellant to file and serve the appeal books in accordance with Orders 1 and 3 made by the Regional Appeals Registrar on 15 October 2013 be extended to 30 May 2014.
Upon compliance by the appellant with Order 3 above, the provisions of Rule 22.22 of the Family Law Rules 2004 apply.
In the event that the appellant does not file and serve the appeal books by
30 May 2014, the appeal be dismissed.
The appellant’s application in an appeal filed on 22 January 2014 be otherwise dismissed.
The appellant pay the costs of the Independent Children’s Lawyer of and incidental to the application in an appeal filed 22 January 2014 in the amount of $1320 plus GST, to be paid no later than the expiration of six (6) calendar months from the date of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lott & Graham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 76 of 2013
File Number: SYC 660 of 2009
| Mr Lott |
Applicant
And
| Mr Graham |
First Respondent
And
Ms Graham
Second Respondent
REASONS FOR JUDGMENT
Ryan j
This is an application by Mr Lott (“the father”) for review of an order made by the Regional Appeal Registrar whereby his application for an extension of time within which to file appeal books was dismissed. The father’s appeal is also listed for consideration of whether, pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the rules”), the appeal should be dismissed.
The appeal concerns final parenting orders made by Fowler J on 31 May 2013 in relation to two children, C and B. His Honour ordered that the children live with their mother, Ms Graham (“the mother”) and stepfather, Mr Graham (“the stepfather”) and that they have equal shared parental responsibility. Subject to being able to correspond with the children on specified occasions, the father was restrained from spending time with the children. There are a series of injunctions which give effect to the primary orders. It should be noted at this point that other than during preparation of reports for these proceedings, the children last saw the father in August 2008; C was then nearly six and B was three and a half.
By a Notice of Appeal filed on 26 June 2013, the father appealed against his Honour’s orders.
The mother and stepfather resist the appeal and seek to maintain the orders. They oppose the father’s application for an extension of time and want his appeal to be dismissed.
An Independent Children’s Lawyer (“ICL”) appeared before his Honour and before us. The orders made by his Honour accord with the submissions made by the ICL. Although the ICL seeks to uphold the orders made by the
trial judge, he supports the father being given one further opportunity within which to file his appeal books, provided in the event he fails to do so there is a mechanism for the appeal to be dismissed without further appearance by the parties.
The father adopted the position proposed by the ICL.
Procedural Background
The hearing commenced before his Honour on 29 April 2013 for five days with judgment delivered and orders made on 31 May 2013.
The father filed his Notice of Appeal on 26 June 2013.
Rule 22.13 of the rules required the father to file a draft index to the appeal by
24 July 2013, which he did.
On 15 October 2013, the Regional Appeal Registrar made orders in relation to the conduct of the appeal. Relevantly, the father was ordered to file and serve the appeal books on or before 26 November 2013. Self-evidently, he did not.
Reliant on r 1.14, on 25 November 2013, the father filed an application for an extension of time to file the appeal books on or before 4 March 2014. That application was listed before the Regional Appeal Registrar on
16 January 2014.
On 16 January 2014 the Regional Appeal Registrar made the following orders:
1.That the application in an appeal filed 25 November 2013, seeking an extension of time to file the appeal books, be dismissed.
2.That, subject to any further order of the Full Court, any application for review of order 1 above, filed by the appellant within 14 days of today’s date pursuant to Rule 22.40, be listed for hearing before the next available Full Court sitting in Sydney.
3.That, subject to any further order of the Full Court, in the event that any such review application referred to in order 2 above is dismissed, the appeal will be listed for consideration of dismissal of the appeal, pursuant to Rule 22.45, by the Full Court hearing the review application.
IT IS NOTED THAT
1.The Full Court will be sitting in Sydney in the weeks commencing 3 February 2014 and 17 March 2014.
On 22 January 2014, the father filed an application to review the Regional Appeal Registrar’s order dismissing his application for an extension of time and, in lieu, sought an order that he file the appeal books no later than
16 January 2015. In addition, he sought orders in the court’s original jurisdiction (orders 3-5) which must be dismissed and an order concerning the admission of further evidence on the appeal (order 6), which ultimately would be a matter for the Full Court determining the appeal. That application will also be dismissed.
In the event, as was earlier mentioned, the father proposed that he file his appeal books not by 16 January 2015 but by some date during April or
May 2014.
The Regional Appeal Registrar wrote to the parties and ICL on
29 January 2014 informing them that the father’s review application would be listed at 10.00 am on 20 March 2014 and that in the event his application was not successful, then the appeal would be listed at the same time for consideration of its dismissal. Thus, notice was given in accordance with r 22.45(3) which triggers the application of r 22.45 (dismissal of appeal and applications for non-compliance or delay).
Discussion
In support of his application, the father relies on his affidavit filed
22 January 2014 and further information he provided today. In short, he says he is presently unable to afford the cost of the transcript of the proceedings before his Honour. However, he is confident that if granted an extension until May 2014, he could meet the expense of a transcript and file his appeal books.
I accept that the father’s financial circumstances are modest and that he has had difficulty in being able to meet the costs associated with the transcript so that he could comply with earlier directions for filing the appeal books. However, I am satisfied that if an extension of time is given until the end of May 2014, he is likely to be able to file the appeal books. This is a matter of some significance, particularly given the subject matter of the appeal and the nature of the orders under challenge.
Although the stepfather and mother contend that the father should re-order his priorities so that the expenses associated with the appeal take priority to the father’s family commitments and study, I do not accept that by re-ordering his priorities he is likely to have been in a position to prepare his appeal books earlier than the date he now nominates.
The mother and stepfather emphasised that the proceedings have continued since late 2008 and that they impact on the welfare of the children, such that allowing the proceedings to continue any further is prejudicial to the children and to them. The submission resonates with remarks made by the ICL. However, the ICL also agreed that the overall interests of justice would be best served by giving the father an extension of time of the duration now under consideration.
In my view, and notwithstanding the arguments advanced by the respondents and the concern that I share about the impact of the proceedings on the children, the interests of justice warrant an extension of time of the magnitude now proposed. The same reasoning supports a self-executing order should the father fail to file the appeal books by the end of May 2014. By then, he will have had a considerable period of time within which to file the appeal books and have been given an indulgence by this court along the lines sought by him.
I therefore propose that orders are made which extend time and comprise a self-executing order for dismissal. As I said earlier, the balance of the father’s application must be dismissed.
Finn j
I agree with the reasons given by Justice Ryan and with the orders that she proposes. I have nothing to add.
Strickland j
I too agree with the reasons given by Justice Ryan and the orders proposed by her Honour. I have nothing further to add.
I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on
20 March 2014.
Associate:
Date: 07 April 2014
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