Mareet & Colbrooke - [2018] FamCAFC 254

FAMILY COURT OF AUSTRALIA

MAREET & COLBROOKE

[2018] FamCAFC 254

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for the extension of time to file a notice of appeal against interim parenting orders – Where the settled reasons were not provided to the parties before the expiration of the appeal period – Where the orders involve a very young child and significant change to the child and applicant’s living arrangements – Where some of the proposed grounds of appeal are arguable – Applicant for extension of time to file a notice of appeal granted – Appeal expedited – Costs of the application to be costs in the appeal.

Family Law Act 1975 (Cth) s 69ZL
Family Law Rules 2004 (Cth) rr 22.02, 22.03

EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195

APPLICANT:

Ms Mareet

RESPONDENT:

Mr Colbrooke

FILE NUMBER:

WOC

357

2018

APPEAL NUMBER:

151

2018

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

14 December 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 October 2018

LOWER COURT MNC:

[2018] FCCA 3397

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Dowson Turco Lawyers

Orders

That the Application in an Appeal filed on 14 November 2018 for an extension of time to file a Notice of Appeal be granted.
That the Applicant file a Notice of Appeal in appeal EA 151 of 2018 no later than 12.00 pm on 20 December 2018.
That the hearing of appeal EA 151 of 2018 be expedited.
The Appeals Registry is directed to list the appeal for hearing in the week commencing 4 February 2019.
The Appeals Registrar is directed to conduct an urgent procedural hearing and advise the parties of the date of the expedited hearing before 24 December 2018.
The costs in the application are to be costs in the appeal.

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 Mareet & Colbrooke 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 151 of 2018
File Number: WOC 357 of 2018

Ms Mareet

Appellant

And

Mr Colbrooke

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ms Mareet (“the applicant”) has filed an application in an appeal seeking an extension of time to file a notice of appeal (EA151 of 2018). The proposed appeal relates to interim parenting orders and injunctions made by Judge Tonkin on 5 October 2018.
Mr Colbrooke (“the respondent”) is the respondent to the application and opposes it.
The proceedings concern the parties’ son, B (“the child”) who was born in April 2018. The child lives with the applicant, and to the great disappointment of the respondent, he has not been able to establish a relationship with his son but not for want of trying.
The orders under appeal provide for the child to live the applicant and spend supervised time with the respondent three times a week for half an hour on each occasion. Importantly however, the orders require the applicant relocate from the D region in Queensland where she and child have been living to Town F where she must live with her mother. By Order 3, the applicant is restrained from leaving the H region in New South Wales area at all. The orders also restrain the respondent from attending upon or approaching the applicant and require the parties attend a reportable child dispute conference. There are various orders made in relation to subpoena and matters of procedure. While the applicant indicates in her draft notice of appeal that she appeals against all orders made by the primary judge, the grounds of appeal primary attack the relocation, restraint and time orders.

Background

So as to give this application context, it is necessary to set out some brief background facts.
The parties commenced their relationship in May 2017. At that time they resided in Town F, which is where it seems they both have their families. Between July 2017 and September 2017 they lived in the Northern Territory due to the respondent’s employment there. The parties returned to Town F, and according to the applicant, they separated on 13 September 2017. At the time of separation the applicant was pregnant with the child. The applicant has another child who is four years old (“the older child”), and it seems that that child formed part of the household when the parties lived together.
The parties communicated, both directly and through solicitors, in February 2018 about arrangements for their then unborn child. The applicant was reluctant to engage with the respondent, and on 16 February 2018 a certificate pursuant to s 60I of the Family Law Act 1975 (Cth) (“the Act”) was issued.
Without notice to the respondent, in March 2018 the applicant moved to the D region in Queensland. It was her case before the primary judge that she did so because she was fearful of the respondent and for her safety and that of her older child and the unborn child. The respondent denies that there was a proper basis for the applicant to assert fear for herself or their unborn child. I omit reference to the older child because I do not understand what the evidence was about that child. Nothing comes of it for present purposes.
The child was born in Town C on the date mentioned earlier.
Parenting proceedings were commenced by the respondent when he filed an Initiating Application in the Federal Circuit Court of Australia on 4 June 2018 seeking information about the location of the child. On 19 June 2018 orders were made ex parte requiring the applicant to provide the information. On 18 June 2018 the applicant emailed the respondent providing details about the birth of the child, but not her location. The applicant has been keen to keep her location secret from the respondent. The effect of that of course, is that the respondent has not known where his son is living.
When the matter came before the primary judge on 5 October 2018 the applicant sought that the proceedings be transferred to Brisbane, that an Independent Children’s Lawyer be appointed for the child and that the child live with her. Before the primary judge was conflicting evidence on the question of family violence and issues as to where the child should live and whether, and under what circumstances, he should spend any time with the respondent. Orders were made as outlined above.

The application

Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 provides that an appeal is to be commenced by filing a notice of appeal.
Rule 22.03 sets out the timeframe within which an appeal is to be filed; namely 28 days from the date of the orders. In this case, the last day for filing a notice of appeal was 2 November 2018.
The principles relating to applications for an extension of time to file a notice of 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 the parties of the grant or refusal of leave.
The applicant filed her application for an extension of time and draft notice of appeal on 14 November 2018, eight days out of time.
In her affidavit filed in support of her application, the applicant sets out events leading up to the filing of her application. She deposes to being represented on a pro bono basis at the interim hearing on 5 October 2018. On 7 October 2018 her then solicitor sought the settled reasons for judgment from the primary judge’s chambers, and when those reasons were not forthcoming, the applicant made additional requests on 7 November 2018 and 20 November 2018. Her Honour’s reasons contain certification at the end which indicates they are dated 23 November 2018.
During the period between when were made the orders and the time for filing a notice of appeal as of right, the applicant applied for a grant of legal aid. She applied on 8 October 2018 and the grant was made on 23 October 2018, however it did not include a grant for the proposed appeal. She has since sought an extension of the grant to include the appeal, however I have been told this morning her application was unsuccessful. If leave is given the applicant says that she will have to conduct the appeal herself.
It is the applicant’s contention that she has acted in a timely way to advance her appeal, in circumstances where she has effectively been unrepresented and where the settled reasons were not available to her. However, I accept the submission by the solicitor for the respondent that it is apparent that the applicant’s solicitors remained on the record and they have provided her with advice and a degree of assistance, including the time limits for when an appeal can be lodged as a right. As I will explain however, the respondent’s submission that the notice of appeal ought to have been lodged in time even though the settled reasons had not been provided will not, in this case, carry the day.
It is particularly important that these the interim orders involve a very young child and made such significant changes to the child and the applicant’s living arrangements. It is noteworthy that Order 3 goes so far as to restrain the applicant from leaving the H region of New South Wales with or without the child. This is a particularly draconian order, and doing the best that we could this morning, neither the solicitor for the respondent nor I could see anything in the reasons which explains her Honour’s reasons for it. With more time it might become apparent, but at this stage it is not. These are serious matters which impact the applicant significantly and weigh heavily in favour of the application for an extension of time to file a notice of appeal.
Something that arose this morning in course of submissions which is unusual is the nature of the reasons that have been issued. At [1] of her Honour’s reasons she says that the parties were advised that the court intended to rely on the discussion between the legal representatives and the court with respect to making the interim orders as the reasons for those orders. I pause to observe there is no suggestion that the parties agreed that this would be sufficient to satisfy her Honour’s obligation to give reasons. In any event, at [1] her Honour goes on to say that her reasons were given in short form, pursuant to s 69ZL of the Act. That seems to suggest that perhaps a different course was taken, whether that is in addition to the first, it is not possible to know at this stage.
Furthermore, the footnote to [1] contains an extensive discussion about the circumstances in which reasons given ex tempore may be revised. There is no doubt that a judge is able to revise ex tempore reasons. Her Honour points out there is no bar even to extensive revision, and that is true. It depends however, on the nature of the revision. The reasons for judgment do not indicate that they are the ex tempore reasons either given in exchanges, or pursuant to s 67ZL of the Act. It seems curious (and hopefully wrong) that there might be three different reasons for these orders. That will need to be resolved before any hearing. My point being, it is far from clear what relationship the reasons issued on 23 November 2018 have to the forms of reasons discussed in [1] of that judgment.
It has already been noted that despite timely and repeated requests by the applicant and her former solicitor for the reasons, the reasons for judgment were provided well after the 2 November 2018 deadline for the applicant to file her notice of appeal as of right. In EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214, the Full Court of the Federal Court of Australia, granted an extension of time to file a notice of appeal in similar circumstances. That is, reasons given ex tempore and notwithstanding numerous requests for the settled reasons they were not issued within the appeal period. In that case, the Full Court said at [29] that “the failure to file the appeal within time was wholly outside the responsibility of the appellant”, and referenced Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 as follows:
The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period.
Both of these cases found that there was a reasonable explanation for the failure to file a notice of appeal within time, as in this case do I. This is a very strong factor in favour of granting the application.
The final matter that requires consideration is the prospects of success of the appeal. The point being, if the appeal was doomed to fail it would not occasion an injustice to deny the applicant an extension of time.
The draft notice of appeal has been prepared by the applicant herself. It is prolix, and some of the matters raised could not satisfy a House v The King (1936) 55 CLR 499 error; indeed form of error that might engage appellate intervention. But there are potentially matters of substance raised that are, at this point, seemingly arguable. The applicant has indicated that she has an appointment on Monday with a lawyer to settle a revised notice of appeal and at this point I am not willing to say that the proposed appeal is doomed to fail.
An extension of time will be given. I also propose to expedite the appeal which will be listed in the week commencing 4 February 2019. Costs will be costs in the appeal.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 13 December 2018.

Associate:

Date: 24 December 2018