McGregor and McGregor - [2011] FamCAFC 44

FAMILY COURT OF AUSTRALIA

MCGREGOR & MCGREGOR

[2011] FamCAFC 44

FAMILY LAW - APPLICATION IN AN APPEAL – application seeking an extension of time to file a Notice of Appeal – where the applicant sought to file a Notice of Appeal one day out of time – where the applicant did not file an application seeking an extension of time for a further two months – where there is an adequate explanation for the delay – where there are arguable grounds of appeal – consideration of the consequences for the parties if the application is granted or refused – extension of time granted – costs reserved.

Family Law Act 1975 (Cth) s 94AAA
Family Law Rules 2004(Cth) rr 22.02, 22.03 & 22.11

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr McGregor

RESPONDENT:

Ms McGregor

FILE NUMBER:

MLC

2636

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

8 February 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

8 February 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 September 2010

LOWER COURT MNC:

[2010] FMCAfam 1029

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Whitchurch

SOLICITOR FOR THE APPLICANT:

Perisic & Thomas Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Spicer

SOLICITOR FOR THE RESPONDENT:

Wilmoth Field Warne

Orders

The time for the husband to file and serve a Notice of Appeal be extended to close of business on 22 February 2011.
The question of the costs of and incidental to the Application in an Appeal filed on 21 December 2010 be reserved.

IT IS NOTED that publication of this judgment under the pseudonym McGregor & McGregor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 95 of 2010
File Number: MLC 2636 of 2009

Mr McGregor

Applicant

And

Ms McGregor

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have before me an Application in an Appeal filed by the husband on 21 December 2010 seeking, in effect, an extension of time to file a Notice of Appeal against orders made by Federal Magistrate O’Dwyer on 23 September 2010. That application is supported by an affidavit of the husband’s filed on the same date, 21 December 2010, and a separate draft Notice of Appeal also filed on the same date. The application is opposed by the wife.
The relevant statute law and rules that apply here are as follows:
2.1Section 94AAA(1) of the Family Law Act 1975 (Cth) provides as follows:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; …
2.2 Section 94AAA(5) provides:
(5) An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court
2.3 Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e) for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
2.4Chapter 22 of the Family Law Rules 2004 (Cth) deals with appeals.
2.5Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
2.6Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
The law in relation to applications for extension of time is well settled. In these matters, I often cite the High Court decision of GallovDawson (1990) 93 ALR 479. In particular, I refer to what McHugh J said at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd. [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
That decision has been followed in a number of Full Court cases including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
What those cases tell me, and in particular Gallo v Dawson, is that there are a number of factors which need to be addressed when considering an application for an extension of time, and they include whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal – although, interpolating, I indicated to Mr Spicer that although the word “substantial” appears in a number of authorities, equally other descriptions of the merits of the appeal that need to be established have been applied, but I will come back to that.
To continue with the relevant factors, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and, importantly, the consequences for the parties of the grant or refusal of the application. But, as is stressed in the authorities to which I have referred, those factors are to be addressed on the basis that the overarching principle is to ensure that injustice is not visited upon, primarily the applicant, but also the respondent.
In terms of the relevant factors for me to consider in this matter, the issue of delay has been the subject of much discussion between bar and bench, as has the issue of the merits of the appeal - or put another way, the success or otherwise of the appeal. Those two factors are the ones upon which the applicant primarily relies and which have been the subject of significant submissions before me today.
In a general way, I am aware of such matters as the history of the proceedings, the conduct of the parties in the proceedings and the nature of the litigation, but there is nothing that certainly the applicant has highlighted to me from those issues, which would bear upon the decision I need to make today. Mr Spicer, likewise for the wife, has not raised any of those matters directly.
Thus I now turn to those factors which I have highlighted as being relevant to this case. Firstly, the question of delay. The requirement is to file the Notice of Appeal within 28 days of the reasons for judgment being delivered. In this case, without checking the calculation, as I understand it the last day to file the appeal within time would have been 21 October 2010. What the husband deposes to in his affidavit is that on that day a Notice of Appeal was forwarded to the Court on his behalf for filing, and when I say forwarded, apparently it was sent by post. His solicitor is practising in Geelong and the registry in which the notice needed to be filed was in Melbourne.
In his affidavit, the husband tells me that he had had some difficulty in arranging the payment of the filing fee, but in any event, a bank cheque was forwarded on 21 October with the Notice of Appeal. Unfortunately though, the notice was not received by the Court until the next day, 22 October, and as that was one day out, the notice was not accepted by the registry, and the notice and the cheque were returned to the applicant.
Now, in the usual way – and there is no dispute about this – the registrar advised the applicant to seek the consent of the other side to a late filing of the Notice of Appeal but, subject to that, the only remedy for the applicant was to make an application for an extension of time. The consent of the wife to the late filing of the Notice of Appeal was duly sought, but was not forthcoming.
For my part, and I suspect even from the wife’s position, if the only delay in this case was the delay that I have outlined, namely a delay of one day, it may not have been necessary for this application to proceed, and I say that because Mr Spicer did not in his submissions suggest that that delay of one day was fatal to this application. But what did happen was that the application that is before me today seeking an extension of time was not filed until 21 December 2010, namely roughly two months after the expiry of the 28 day time period, and it is that delay which the respondent, through her counsel, highlights and suggests was unreasonable, and has not been explained.
There are paragraph 16 and 19 of the husband’s affidavit where he refers to there being a notification to the Department of Human Services. I specifically do not refer to paragraph 17 and 18 because, as Mr Spicer has raised, the information in those paragraphs is not information that can be put before me on this application, and indeed has no relevance to it. However, the real difficulty is that the husband does not expressly say that the notification, and subsequently waiting for the result, was the reason for the delay, and Mr Spicer says that that cannot be implied either. On the other hand, the wife submits that that is an implication that can and should be made.
For my part, I consider that I can readily make the implication from the affidavit that that, if not the sole reason, was a primary reason for not pursuing the appeal until that exercise – namely, the notification of the Department and any investigation subsequent to it – had been completed. I appreciate, as Mr Spicer has correctly pointed out, that there are no timeframes that the husband deposes to in his affidavit in that regard, and the Department did not in fact pursue the notification or investigate it, but, to repeat, I consider that it is open to me to imply from what the husband has deposed to in his affidavit that that is the primary reason for the delay.
I observe that it is an interesting question as to how significant any delay in filing the application itself, once the applicant finds himself or herself out of time, is in the overall scheme of things. It is obviously important and Mr Spicer has highlighted the particular circumstances of this case, but just how important is unclear.
In any event, as I have said in other cases, any delay in bringing the application needs to be addressed, and there has been delay here. To repeat though, I consider that there is an adequate explanation for that delay on the part of the husband.
The next factor which has been highlighted and about which there has been much discussion relates to the grounds of appeal, and, as Mr Spicer puts it, whether there is a substantial issue to be raised on appeal.
For my part, as I indicated during submissions, this is a difficult issue because, of course, I do not have all of the documents that were before the Federal Magistrate. Also, I do not have a transcript of the hearing before his Honour. All I have is the application, the supporting affidavit, the draft Notice of Appeal and his Honour’s reason for judgment, and with that limited information I need to make some assessment of the prospects of success of the proposed appeal.
In this case, the grounds of appeal which are in the draft Notice of Appeal are, realistically, the only grounds of appeal that I can have regard to. I say that deliberately because Mr Whitchurch in his submissions, raised matters outside the specific grounds of appeal in the notice and he observed that if this application is successful, he would have his instructors address the question of an Amended Notice of Appeal. Be that as it may, I cannot surmise or take into account what might happen. I can only obviously act on what is before me, and thus in considering the prospects of success of the appeal, I am limited in looking at the grounds of appeal which are set out in the draft Notice of Appeal, of course though, as elaborated on in, firstly, the affidavit in support of the application and specifically in paragraph 14, and also in oral submissions.
Mr Spicer has carefully and thoroughly addressed each of the grounds of appeal and taken me to the reasons for judgment of the Federal Magistrate. He suggests that none of the grounds of appeal have any prospect of success, or put another way, that they do not raise a substantial issue to be determined on appeal.
Turning to the grounds, the first ground is his Honour erred in law, and the second ground is the judgment of his Honour was against the evidence and the weight of the evidence. Now, they are very general grounds, as Mr Whitchurch conceded. Mr Whitchurch did make general submissions about the evidence before his Honour and the weight that his Honour applied to the evidence, but, as I understand it, that related more to the subsequent specific grounds of appeal, which I will come to in a moment, namely, the question of the appointment of an Independent Children’s Lawyer, the weight to be attached to the wishes of the children, the question of whether his Honour erred in exercising his discretion in relation to the orders that his Honour has made for the husband to spend time with the children, and, in terms of the property settlement issue, whether his Honour gave proper weight to the contributions made by the husband to the asset pool.
In relation to the issue of the Independent Children’s Lawyer, I must say I am somewhat perplexed with this ground of appeal in that I am not entirely clear what the error is that the Federal Magistrate is suggested to have made. As I understand it, there was an order for the appointment of an Independent Children’s Lawyer by another federal magistrate. However, that order was not acted upon by the relevant authority, namely, Victorian Legal Aid, and the case proceeded without an Independent Children’s Lawyer.
Mr Whitchurch said that his Honour should have been more forceful, for example, and he should have made statements about it. However, at the end of the day, his Honour can only do so much. It is the decision of the Victorian Legal Aid as to whether an Independent Children’s Lawyer is provided or not. In any event, as Mr Spicer has pointed out to me, there appears to have been no application in the lead up to the hearing of the matter for the Federal Magistrate to further consider that issue and to be more forceful in terms of requiring Victorian Legal Aid to provide an Independent Children’s Lawyer. Thus, I must say that I am not satisfied that ground 3 is a ground that has any prospect of success.
Turning to the other grounds, namely, the weight attached to the wishes of the children, the weight attached to the contributions of the parties, and the complaint that the Federal Magistrate failed to properly take into account the proposals of the parties in relation to the time the husband, for example, should spend with the children.
In relation to the first two issues, they are obviously weight grounds and it is well known that such grounds are difficult grounds to pursue on appeal. However, I must say in relation to the issue of the weight attached to the contributions made by the husband to the asset pool, I have some difficulty in understanding the particular paragraphs where his Honour addresses this issue, namely, paragraphs 82 and 83, and thus for my part, I can see that in relation to that topic, there is an arguable ground of appeal, or put another way, there are prospects of success in relation to that ground of appeal.
In relation to the wishes of the children, this was clearly a difficult case. There was evidence – and his Honour adverted to it – of the wishes of the children, and particularly the eldest child, and those wishes were that they wanted to stay with their father. His Honour had to deal with that, and what his Honour found was that the husband had alienated the children against the mother and those wishes could not be taken at face value and acted upon.
That indicates the difficult propositions that the Federal Magistrate had to work with, and in my view, there is an arguable ground of appeal. I am not in a position to say that there is no prospect of success in relation to that topic.
Mr Spicer has raised the obvious question of the degree of satisfaction required as to the prospects of the success of the appeal. As I have said, there are different expressions used throughout the authorities. I have indicated the way I approach this matter and the reasons for it, namely the limited information that is before me. It is a matter, it seems to me, of doing the best one can on the basis of that information and I readily concede that – to use the vernacular – it has some aspects of being rough and ready but that is what I am confronted with.
Now, turning to the next relevant factor, namely, the consequences for the parties of the grant or refusal of the application. If I grant the application, then the consequences for the wife are that the appeal will proceed and she will have to deal with it. She will need to instruct her legal advisers appropriately and have documents prepared and appear at directions hearings and the like and ultimately at the hearing of the appeal. Clearly, that is a significant consequence in terms of time and money and effort.
On the other hand, if I were to refuse the application, the consequences for the husband are that he has no right of appeal from such a decision. Of course he always has the ability to file a special leave application in the High Court, but that is notoriously a difficult exercise at the best of times. Thus I have to try and balance those consequences in addressing the overarching principle, which I now come to, namely, where the justice of the case lies.
To recap, in my view, there is no issue in terms of the one day delay which occurred when the husband attempted to lodge his Notice of Appeal. I am also satisfied that there is a reasonable explanation of the delay in filing the application that is before me today, and I am satisfied that there is an arguable case on appeal and that there are prospects of success. Thus I consider that the justice of the case falls on the side of granting the application.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 8 February 2011.

Legal Associate:

Date: 10 March 2011