MURSELL & REAN
[2020] FamCAFC 53
•11 March 2020
FAMILY COURT OF AUSTRALIA
| MURSELL & REAN | [2020] FamCAFC 53 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR AN EXTENSION OF TIME – Where the applicant was one week late in filing the Notice of Appeal – Where the delay is sufficiently explained by reason of a misapprehension regarding the last date for filing – Where there is sufficient merit in the appeal such that granting an extension of time would not be futile – Where the applicant would suffer an injustice if leave is not granted – time extended. |
| Family Law Act 1975 (Cth) ss 11F, 60CC Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 |
| APPELLANT: | Ms Mursell |
| RESPONDENT: | Mr Rean |
| FILE NUMBER: | NCC | 3878 | of | 2018 |
| APPEAL NUMBER: | EAA | 21 | of | 2020 |
| DATE DELIVERED: | 11 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 10 March 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 January 2020 |
| LOWER COURT MNC: | [2020] FCCA 42 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Kennedy |
| SOLICITOR FOR THE APPELLANT: | Adams & Partners Lawyers |
| THE RESPONDENT: | Litigant in person |
| INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW |
Orders
The time to file a Notice of Appeal against the orders of Judge Dunkley made on 13 January 2020 be extended to 4.00 pm 24 March 2020.
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 Mursell & Rean 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: EAA 21 of 2020
File Number: NCC 3878 of 2018
| Ms Mursell |
Appellant
and
| Mr Rean |
Respondent
and
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Ms Mursell (“the mother”) seeks to appeal a parenting order made by a Judge of the Federal Circuit Court on 13 January 2020. The orders provided for Mr Rean (“the father”) to spend supervised time with the parties’ only child X borb in 2018 (“the child”) for 2 hours on each of the first Saturday and first Sunday of each calendar month at times nominated on those days by the convener of a children’s contact service.
Rule 22.03 of the Family Law Rules 2004 (Cth) provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made.
By Application in an Appeal filed on 17 February 2020 the mother seeks an extension of time in which to file a Notice of Appeal.
Delay and the reason for it
The mother relies on an affidavit filed by her solicitor in support of the mother’s application. The solicitor says that following a slight delay in receiving a copy of the judgment a conference was arranged with Counsel to provide advice regarding the filing of an appeal. When discussing the judgment the mother became exceptionally distressed and requested time to think about whether she wished to proceed with obtaining advice regarding an appeal. The mother’s solicitor says she requested the mother to provide instructions “as soon as possible as to whether she wished for advice to be provided with respect of any appeal prospects”.
The mother subsequently advised she wished to proceed with the appeal and advice was obtained from Counsel on 6 February 2020. That advice was provided to the mother and instructions to file an appeal were provided on
12 February 2020 under the misapprehension that the date the judgment was delivered was on 17 January 2020 and not 13 January 2020. This caused the solicitor for the mother to be one week late in filing the appeal.
The father opposes a grant of leave.
Before turning to the legal principles that govern this application, it is useful to set out some background to the dispute taken from the primary judge’s reasons.
Background
The parties met in Western Australia where the father remains living. The relationship was brief, some 10 months, and the parties separated when the mother was pregnant with the child. Before the child was born the mother moved to live in NSW.
The father commenced proceedings in the Federal Circuit Court in December 2018. On 29 November 2019 a judge of the Federal Circuit Court made orders by consent of the parties that a single expert be appointed to prepare a report for the court and that pending further order, for the child to live with the mother and have Skype communication with the father. Thus the main issues for determination was whether the child should spend time with the father and, if so how would that time be structured.
Sometime earlier, a different judge to the primary judge ordered that the parties attend a Child Inclusive Conference pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”) and a memorandum be issued as a result. The primary judge noted that the author of that report observed that the mother displayed “extremely high degrees of fear and anxiety” about the father, describing her fear as “palpable” and further regarded the mother’s view that the father was a danger to the child was fixed (at [22]). While acknowledging the mother’s high level of anxiety, the primary judge was unable to form a view as to whether it was well founded or not.
For the purposes of the memorandum, the counsellor observed a short period of time between the father and the child. The child was observed to be unhappy throughout the visit. This visit was the father’s first in person contact with the child who was then about 18 months old.
The primary judge concluded that the father has no relationship with the child and the mother was the child’s primary carer and primary attachment. His Honour said that the child would need to spend short periods of time with the father in order to build up a relationship with father and this would, necessarily involve “short term transient” distress in the child (at [43]).
The primary judge concluded that it was not appropriate to delay a consideration of the mother’s anxiety and the child’s relationship with the father until the single expert had completed the report and, thus on an interim basis ordered the father to spend time with the child for two hours on two consecutive days in each month, to be supervised by a professional supervision service.
It is these orders that the mother seeks to appeal. The proposed grounds challenge the primary judge’s conclusion that it was not in the child’s best interests to delay the introduction of the father and further in broad, challenge the orders as being uninformed by the provisions of s 60CC of the Act.
The mother sought a stay of his Honour’s orders which is listed for hearing on 8 April 2020. Notwithstanding there has been no stay of those orders, the mother has apparently failed to comply with them and the father has filed an application for Contravention of the primary judge’s orders.
Legal principles
The relevant principles to be applied in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but 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 parties of the grant or refusal of the leave. It is also necessary to consider the delay, its magnitude and the reason advanced for the delay.
The respondent’s opposition
In his response to the Application in an appeal and affidavit filed 3 March 2020, the father opposes the application and contends that there is “no evidence” that he poses a risk of harm to the child. I take this to be a submission that the appeal is not arguable. The father is representing himself and in his affidavit expresses “strong opposition” to the granting of an extension of time. He further points to the delays in bringing the matter to hearing and argued that the appeal and, this application for leave was a tactic to further delay the hearing.
Merits of the proposed appeal
The exercise of discretion also involves an assessment of prospects of a successful appeal because if the appeal is devoid of merit it would be futile to make the order sought. This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the Court on the application.
That the assessment of merit is one conducted by reference to the available material, necessarily limits the inquiry and as Kirby J said in Jackamarra v Krakouer (1998) 195 CLR 516 at 540:
A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile.
(Footnotes omitted)
It is against this legal framework then that the merits of the proposed appeal should be considered.
Having regard to the reasons for judgment and the issues sought to be raised on appeal, I am satisfied that the appeal is arguable for these purposes.
Delay
In this case, the delay between the expiration of time and the attempted filing of the appeal is one week. Of itself, that delay is not of a magnitude which would foreclose an extension of time being granted. I am further satisfied that the delay in filing the appeal has been satisfactorily explained.
I therefore propose to grant the extension of time sought.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 11 March 2020.
Associate:
Date: 11 March 2020