LYONS & ADDER
[2013] FamCAFC 62
•19 March 2013
FAMILY COURT OF AUSTRALIA
| LYONS & ADDER | [2013] FamCAFC 62 |
FAMILY LAW – APPEAL – Application to reinstate appeal – Where the appeal was deemed abandoned when the appellant mother failed to file a draft appeal index in time – Where the period of delay is relatively short and other related proceedings were on foot at the time the index was due to be filed – Where there are genuine and serious issues for determination raised by the mother’s notice of appeal – Where the prejudice to the father in allowing the reinstatement can be remedied in part by an order for costs should the mother’s appeal be dismissed – Where the draft appeal index is on the Court file ready for formal filing – Application allowed.
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.45 |
| Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Bemert & Swallow [2010] FamCAFC 100 Gallo & Dawson (1990) 93 ALR 479 |
| APPELLANT: | Ms Lyons |
| RESPONDENT: | Mr Adder |
| FILE NUMBER: | LEC 56 of 2012 |
| APPEAL NUMBER: | NA 107 of 2012 |
| DATE DELIVERED: | 19 March 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 19 March 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 December 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1461 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mrs Black |
| SOLICITOR FOR THE APPELLANT: | G J Donaghy & Company |
| COUNSEL FOR THE RESPONDENT: | Mr Mason |
| SOLICITOR FOR THE RESPONDENT: | David Nelmes & Associates |
Orders
The mother’s application to reinstate appeal NA 107 of 2012 be allowed.
The time for serving the Notice of Appeal upon the solicitors for the respondent be extended to 7January 2013.
The time for filing the draft index to the appeal books be extended to
18 February 2013.
The hearing of the appeal be expedited.
The matter be listed before the Regional Appeals Registrar for directions.
The costs of the respondent father of and incidental to this application be reserved to the Full Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lyons & Adder 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 BRISBANE |
Appeal Number: NA 107 of 2012
File Number: LEC 56 of 2012
| Ms Lyons |
Appellant
And
| Mr Adder |
Respondent
REASONS FOR JUDGMENT
This is an application pursuant to r 22.44 of the Family Law Rules 2004 (Cth) (“the Rules”) by the appellant mother to reinstate her appeal, which was deemed abandoned upon the failure to file a draft appeal index in time. The application is opposed by the respondent father.
The mother’s appeal is against final parenting orders made by Federal Magistrate Demack on 7 December 2012. Those orders provided for a change in the residence of the children, moving them from living with the mother to living with the father, with time spent with the mother each alternate weekend and for half of the school holidays. Equal shared parental responsibility was sought by the parties and ordered by the Federal Magistrate.
The mother filed a notice of appeal in time on 21 December 2012. The draft appeal index was due on 18 January 2013, and filing was attempted out of time, faxed on 18 February 2013. The Regional Appeals Registrar informed the mother’s solicitor by letter dated 22 February 2013 that an application for reinstatement would need to be filed. That application was filed promptly on
26 February 2013.
As will be seen, the mother seeks to explain this delay in filing her material by reference to a stay application against the final orders, which was heard by the Federal Magistrate. The application for a stay was unsuccessful.
Relevant Principles
Rule 22.44 of the Rules provides that, “[a] party may apply to have an appeal taken to be abandoned under this Chapter reinstated”. The Rules themselves do not specify the matters to be considered in the exercise of discretion in determining whether to reinstate an appeal.
It is not necessary to restate the principles applicable to such applications in any detail other than to refer to Bemert & Swallow [2010] FamCAFC 100, commencing at paragraph 113, where the Full Court (Coleman, May & O’Ryan JJ) referred to the well known passages from Gallo & Dawson (1990) 93 ALR 479 at 480 and Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175.
In deciding the mother’s application it is necessary to consider the explanation for delay, the merits of the proposed appeal, and whether or not a refusal to reinstate will cause an injustice to the mother. It is also necessary to consider whether there is any prejudice likely to be suffered by the father, which cannot be remedied by an order for costs.
Mr Mason, counsel for the respondent, correctly emphasised that to determine whether the Rules will work an injustice it is necessary to have regard to the history of the matter, the conduct of the parties, the nature of the proceedings and the consequence for each of them if the application is granted.
It should also be recalled that in Gallo & Dawson, Justice McHugh observed that the object of the Rules allowing an extension of time “is to ensure that those Rules which fix times for doing acts do not become instruments of injustice”.
The mother filed an affidavit in support of her application on
26 February 2013, and was represented by counsel at the hearing before me. The father filed a response by leave at the hearing, having faxed it to the Court the evening before. He opposes the application.
Explanation for Delay
The affidavit filed on 26 February 2013 in support of the mother’s application seeks to explain her delay in filing the draft appeal index within the time prescribed by the Rules.
The mother explains that prior to the due date for filing, she instructed her solicitor to focus on preparing for the stay application. It was listed for hearing on 13 February 2013. This involved an unsuccessful attempt, including filing a Notice of Risk of Child Abuse on 24 January 2013, to have the stay application hearing date brought forward.
The stay application was heard on 13 February 2013, and judgment reserved to 14 February 2013. The stay was refused. The mother says she was “extremely upset and distressed by this decision, but was unable to speak to my solicitor due to him being in another Court”.
The mother says her distress following the refusal of the stay prevented her from giving instructions to her solicitor to prepare and file the index until after she had considered the decision over that weekend, and had a proper opportunity to discuss the matter with her solicitor.
Counsel submitted that the mother intends to proceed with her appeal against the decision and orders of the Federal Magistrate, it seems she is genuine.
While the mother and her solicitor knew of the filing due date and had sufficient time to comply, in these circumstances, where the period of delay in filing is relatively short and other related proceedings were on foot at the time, I am satisfied that an explanation, sufficient for the purpose of this application, has been provided.
Merits of the Appeal
It is reasonable to accept that the mother’s intention to pursue her appeal is genuine. The parenting orders made by Federal Magistrate Demack are final, and bring about significant change to the mother’s life and parenting arrangements for her children with the respondent father.
Given the serious nature of the orders, the short delay, and the possible prejudice which as will be seen, favours the mother, it is unnecessary to evaluate in great detail the merits of the mother’s proposed appeal. I will however deal with the submissions of counsel for the father. In essence it was submitted that by reference to the grounds of appeal, the appeal is unlikely to succeed, most grounds being directed to weight and others being meaningless.
The mother’s grounds of appeal are properly formulated. It is plain for the father, and for the Court, on what specific bases the mother complains. The primary issues for determination in the parenting proceedings included allegations of domestic violence, expert evidence in the form of a family report, special medical needs of one child, changes to the children’s living arrangements, the significance of the mother’s aboriginality and the distance and location of the parents’ respective homes. These were complex considerations, many of which are sought to be raised in the appeal.
The Federal Magistrate’s reasons for judgment appear to be comprehensive and thoughtful. The grounds of appeal against the reasons essentially go to the exercise of discretion, and in particular the weight applied to certain issues and evidence.
Succeeding in an appeal against discretionary judgments on such grounds is a difficult task.
Nonetheless there are genuine and serious issues for determination raised by the mother’s notice of appeal. Having considered the notice of appeal and the Federal Magistrate’s orders and reasons for judgment, I am satisfied for the purposes of this application for reinstatement, that the issues raised by the mother support a reinstatement to allow a hearing of the appeal on its merits.
Injustice to the Mother, Prejudice to the Father
In circumstances where the mother had filed her notice of appeal in time, and appears genuinely prepared to prosecute her appeal, to deny the application to reinstate would do a significant injustice to her, by denying her the opportunity to have the appeal heard on its merits on the basis of a relatively short delay.
Allowing the mother’s application will cause some prejudice to the father. A litigant who has the benefit of orders is entitled to rely on those orders, subject to an appeal period. As a respondent in an appeal, he is reasonably entitled to expect that the mother will only be allowed to prosecute her appeal if she complies with the rules of the Court. The Rules do provide, however, for reinstatement of appeals deemed abandoned.
The prejudice to the father can be remedied in part by an order for costs should the mother’s appeal be dismissed.
Expedition of appeal
Each counsel emphasised the traumatic nature of events for the children and the long history of a high level of conflict in this matter. Unfortunately, the dispute seems far from resolved after final orders were made. There have been proceedings for contravention filed by the father consequent on the mother’s refusal to return the children. On any view of these events, it is in the parties and children’s best interests that the appeal be heard as expeditiously as possible. While counsel for the father was vigorously opposed to an extension of time to file the draft index so that the appeal could be reinstated, he conceded that should the appeal proceed, expedition would not be opposed.
Conclusion
Having regard to the explanation for the delay, the possible merits of the mother’s proposed appeal and the prejudice to each party, I am satisfied the proper order to make is that the mother’s application for reinstatement be allowed.
A draft index to the appeal having been filed (albeit out of time), that document can be filed immediately. As there was some question also raised about whether the mother’s lawyers served the father’s with the Notice of Appeal in time, I will extend the time for service to 7 January 2013.
Costs
At the conclusion of the application submissions were made in relation to costs.
In this case there are circumstances which would justify an order for costs (see s 117(2A). The father’s counsel informed me that he is legally aided. While there are a number of reasons why an order for costs could be made, the better course is to reserve the costs to the Full Court. Counsel for the father correctly in his submissions emphasised the merits of the appeal and the prejudice to the father. Should the appeal be dismissed, most likely the mother would be ordered to pay the costs, including the costs of this application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 19 March 2013.
Associate:
Date: 19 March 2013
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