Millwood and Millwood
[2019] FamCAFC 248
•16 December 2019
FAMILY COURT OF AUSTRALIA
| MILLWOOD & MILLWOOD | [2019] FamCAFC 248 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the father failed to file a draft index to the appeal book in accordance with r 22.13 of the Family Law Rules 2004 (Cth) and the directions of the Appeal Registrar – Where it is in the interests of justice that the appeal be reinstated – Where the mother and the ICL were not responsible for the failure of the father to file a draft index to the appeal book – Father to pay the costs of the mother and the ICL in fixed sums. |
| Family Law Rules 2004 (Cth) rr 22.13, 22.44 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 |
| APPLICANT: | Mr Millwood |
| RESPONDENT: | Ms Millwood |
| INDEPENDENT CHILDREN’S LAWYER: | Blumberg Family Lawyers |
| FILE NUMBER: | MLC | 9337 | of | 2014 |
| APPEAL NUMBER: | EA | 92 | of | 2019 |
| DATE DELIVERED: | 16 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 21 November 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 August 2019 |
| LOWER COURT MNC: | [2019] FamCA 594 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Coninos |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Blumberg Family Lawyers |
Orders
Appeal EA 92 of 2019 be reinstated.
The applicant file and serve a draft index to the appeal book within fourteen (14) days of the date of these orders.
The applicant pay the costs of the respondent fixed in the sum of $2,000 and the Independent Children’s Lawyer fixed in the sum of $500.
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 Millwood & Millwood 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 92 of 2019
File Number: MLC 9337 of 2014
| Mr Millwood |
Applicant
and
| Ms Millwood |
Respondent
REASONS FOR JUDGMENT
By an Application in an Appeal filed on 31 October 2019, Mr Millwood (“the father”) seeks the reinstatement of his appeal against parenting orders made by a judge of the Family Court of Australia on 23 August 2019. The father’s application for reinstatement of the appeal is opposed by Ms Millwood (“the mother”) and the Independent Children’s Lawyer (“ICL”).
The father filed a Notice of Appeal on 20 September 2019. In accordance with r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”), the father was then required to file a draft index to the appeal book within 28 days of that date, namely 18 October 2019, which he failed to do. Accordingly, pursuant to r 22.13(3) of the Rules, the father’s appeal was taken to be abandoned.
The father seeks that his appeal be reinstated pursuant to r 22.44 of the Rules.
The principles that apply to such an application were set out by McHugh J in Gallo v Dawson (1990) 93 ALR 479 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…
In considering such an application, the aim is to do justice between the parties. Generally speaking, the Court will look to the reasons for the failure to comply with the Rules, any delay in bringing the application and whether any prejudice flowed from the failure to comply with the Rules.
I bear in mind that a person who has the benefit of a regularly filed appeal should not, generally speaking, lose their right of appeal by reason of a failure to comply with a procedural step. Therefore, the merits of the proposed appeal are not relevant unless the Court is satisfied “that the appeal is so devoid of merit that it would be futile to extend time” (Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra v Krakouer”) per Brennan CJ and McHugh J at 517).
The father’s explanation for not filing the draft index to the appeal book within the correct time is that he mistakenly thought that the 28 days for doing so commenced from 9 October 2019, which was when he filed an Amended Notice of Appeal.
The mother and the ICL pointed out that this is an unlikely explanation given the information provided to him by the Court.
On 25 September 2019, the assistant to the Appeal Registrar wrote to the father advising him of a direction from the Appeal Registrar that an Amended Notice of Appeal be filed “no later than 4.00 pm on 9 October 2019”. Later in the same email, the following sentence appears:
The appellant is to file a draft index to the appeal books with the registry and serve on all parties within 28 days of filing a Notice of Appeal, no later than 4.30 pm on 18 October 2019.
(Exhibit 1)
Anybody reading this letter would therefore be under no misapprehension as to what was required and that the date for filing the draft index to the appeal book had nothing whatsoever to do with the filing of an Amended Notice of Appeal.
The father accepts that he received the email from the assistant to the Appeal Registrar but says that he was simply mistaken about the date. I do not know whether the father then had the assistance of lawyers who would have explained the significance of the dates to him.
This is not an entirely convincing explanation but then again people do make mistakes of the kind identified.
The father’s application for reinstatement was filed promptly after the appeal was deemed to be abandoned.
The father does not yet have available a draft index to the appeal book and said that the lawyers who he has engaged, but apparently not for this application, would attend to it.
Counsel appearing for the mother and the ICL each submitted that the father’s failure to comply with the Rules indicated that the father held a poor attitude towards the prosecution of the appeal. I would not draw such an inference from one failure by the father.
I accept that the proceedings between the parties have lasted for many years, including two final hearings and an appeal. In my opinion, these are not matters which should deprive an appellant of the benefit of a regularly filed appeal.
Finally, counsel for the ICL submitted that the prospects of success of the appeal are poor.
As I have already indicated, such a consideration, even if established, is not sufficient to justify the dismissal of the present application. The appeal must be “devoid of merit” (Jackamarra v Krakouer at 517).
It must also be borne in mind that a Court in dealing with such submissions in relation to an application of this kind, is constrained, because it does not have access to the full arguments, the evidence that was before the primary judge or the transcript of the hearing before the primary judge.
The primary judge’s conclusions for making an order that the child, who is the subject of the proceedings, live with the mother and spend no time with the father, were conveniently summarised in the following paragraphs:
252.[Dr D] is extremely concerned about [the child’s] mental health. She said that [the child] has become highly embroiled in a complex parental dispute and is distressed and confused about it. She said that [the child] has become overly involved in the proceedings and is at psychological risk as a consequence.
253.In my view, such is the toxicity between the parties that a parenting arrangement which would involve [the child] passing from the care of one parent to the other would carry with it ongoing opportunity for the parents to continue to indulge themselves in using her as an agent through which they can continue the conflict and hostility which has been so distressing and damaging for [the child].
254.Accordingly, I have come to the view that in weighing the risks to [the child’s] psychological and emotional wellbeing if she was to live with the mother and spend unsupervised time with the father, the risks would be greater in such an arrangement than those if she was to live with the mother and not spend time with or communicate with the father.
The grounds of appeal, which apparently were drafted by counsel, are:
1.The primary judge's discretion miscarried in that in all of the circumstances it was unreasonable and plainly unjust to find that it was in the child's best interests to order the child spend no time with the Father but particularly given the primary judge:
(a)found the mother suffered from excessive obsessional anxiety and possible paranoid beliefs; and
(b)could make no finding one way or the other about the father's alleged sexual abuse of the child.
2.That the primary judge elevated the Chapter 15 expert’s views to a determinative status such that, in so doing, the discretion miscarried.
3.That the finding of the primary judge that [Mr F’s] “version of events is what occurred”:
(a)amounted to an error of law because it was entirely against the weight of the evidence, and
(b)was an error of law because it entirely lacked proper explanation by way of adequate reasons, and
(c)was an error of law because it failed to take into account material considerations advanced by the appellant in respect of the “motive” of [Mr F] to lie.
4.That leave be granted for the appellant to amend the grounds of appeal once the transcript of the proceedings is obtained.
(Amended Notice of Appeal filed on 9 October 2019) (As per the original)
These grounds of appeal do not inspire a great deal of confidence in the prospects of success of the appeal. The first ground of appeal appears to be a weight challenge to a discretionary judgment. Such challenges face a high bar (Gronow v Gronow (1979) 144 CLR 513 at 519). The remaining grounds of appeal challenge the reliance of the primary judge on particular evidence and the primary judge’s reasons for doing so. Again, there are constraints on the review of a trial judge’s findings of fact (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at 558–559).
Nonetheless, I am not in a position to say that the grounds of appeal are so “devoid of merit” (Jackamarra v Krakouer at 517) as to justify dismissing the father’s present application for reinstatement.
Taking all these matters into account, including the nature of the father’s default, I am satisfied that it is the interests of justice that the appeal be reinstated.
Costs
Both the mother and the ICL sought an order for costs against the father. Neither of them were responsible in any way for the father’s failure to comply with the Rules. Each of them raised reasonable matters in opposition to the father’s application for reinstatement.
I consider it appropriate that the father pay the mother and the ICL’s costs of this application.
The mother sought costs in the sum of $3,200 but that was on a lawyer and client basis. For such a modest sum, it is inappropriate to require the parties to undergo a taxation. Doing the best that I can to assess an appropriate figure, there will be an order for the father to pay the mother’s costs in the sum of $2,000.
The ICL sought costs against the father in the sum of $500 and there will be an order to that effect.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 16 December 2019.
Associate:
Date: 16 December 2019
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