Nelson and Nelson and Ors
[2018] FamCAFC 86
•8 May 2018
FAMILY COURT OF AUSTRALIA
| NELSON & NELSON & ORS | [2018] FamCAFC 86 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where the first respondent, third respondents and Independent Children’s Lawyer consent to an order for reinstatement – Where the failure to file the draft appeal index within time was solely the responsibility of the applicant’s solicitors and should not be visited on the applicant – Application allowed. |
Family Law Rules 2004 (Cth) r 22.13(2)
| Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 |
| APPLICANT: | Ms Nelson |
| FIRST RESPONDENT: | Mr Nelson |
| SECOND RESPONDENT: | Mr Willis |
| THIRD RESPONDENT: | Ms A Nelson & Mr B Nelson |
| INDEPENDENT CHILDREN’S LAWYER: | Sharon Moore Solicitor |
| FILE NUMBER: | NCC | 318 | of | 2016 |
| APPEAL NUMBER: | EA | 3 | of | 2018 |
| DATE DELIVERED: | 8 May 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 8 May 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 November 2017 |
| LOWER COURT MNC: | [2017] FamCA 927 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Page QC |
| SOLICITOR FOR THE APPLICANT: | Trisley Lawyers |
SOLICITOR FOR THE FIRST RESPONDENT: | Legal Aid NSW |
| SOLICITOR FOR THE SECOND RESPONDENT: | No appearance |
COUNSEL FOR THE THIRD RESPONDENT: | Mr Gywder |
SOLICITOR FOR THE THIRD RESPONDENT: | Julia Clark Solicitor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ticehurst |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sharon Moore Solicitor |
Orders
That the appeal EA 3 of 2018 be reinstated.
That the appellant file and serve the draft appeal index within seven (7) days from the date of this order.
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 Nelson & Nelson and Ors 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).
|
Appeal Number: EA 3 of 2018
File Number: NCC 318 of 2016
| Ms Nelson |
Applicant
And
| Mr Nelson |
First Respondent
And
Mr Willis
Second Respondent
And
Ms A Nelson & Mr B Nelson
Third Respondents
And
Sharon Moore Solicitor
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 29 March 2018, Ms Nelson (“the mother”) seeks to reinstate her Notice of Appeal filed on 31 January 2018. By operation of rule 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) the appeal, which is against final parenting orders made by Austin J on 13 November 2017, was deemed abandoned because the mother failed to file and serve the draft appeal index by the due date. Hence the application for reinstatement.
Mr Nelson (“the father”) and Ms A Nelson and Mr B Nelson (“the paternal grandparents”) are the respondents to the appeal and the application for reinstatement.
Mr Willis was a party to the proceedings in the court below but elected to withdraw from those proceedings prior to their conclusion. In any event, he is the father of another child whose interests were addressed during those proceedings but is not the father of any of the children subject of this appeal.
The orders under appeal provide for the father and paternal grandparents to have equal shared parental responsibility for three of the four children and that they shall authorise and request the principal of any school attended by the children to provide, at the mother’s expense, copies of school reports and school photograph order forms relating to the children. Further, the mother is restrained from causing or allowing the children to be in the physical presence of her father, unless supervised by her.
Applicable law
The principles relating to applications to reinstate an appeal are set out in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 (“Jackamarra”). In particular, Gummow and Hayne JJ, at [33]:
…[W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Delay
Pursuant to r 22.13, the mother was required to file her draft appeal index within 28 days of filing her Notice of Appeal. The Rules provide that if an appellant fails to file the draft appeal index, the appeal is taken to be abandoned. Accordingly, the applicant had until 28 February 2018 to file her draft appeal index. This was confirmed through correspondence to the mother’s solicitors from the Appeal Registry, dated 2 February 2018. The draft index was received by the Appeal Registry on 8 March 2018 and by operation of the rules her appeal was deemed abandoned.
The first question to be determined is whether the mother has provided an adequate explanation for her failure to comply with the timeframe for filing the draft appeal index. The explanation is provided in the affidavit of the mother’s solicitor, filed 29 March 2018. In short, the mother’s solicitor says that he thought he was unable to file the draft index in the timeframe prescribed because he did not have the trial transcript or list of exhibits.
That the solicitor for the mother did not have access to the transcript, that is, the order had yet to be completed by the transcript provider, or list of exhibits is immaterial to the question of delay. It does not follow that without these, the draft index could not have been prepared and plainly, it should have been.
Nonetheless, it is clear that the fault in not filing the index in time was solely the responsibility of the mother’s solicitors. It is the type of mistake that happens from time to time and the consequence of the oversight ought not to be visited on the client.
Those appearing for the Independent Children’s Lawyer (“ICL”), the first respondent and the third respondents conceded as much this morning. As I discussed with those appearing, this application ought to have been addressed by an exchange of correspondence with the Appeal Registrar, that is, an indication to the court that there was a common position that the appeal could be reinstated. Had that been done, today’s appearance would have been unnecessary. As I said in exchanges, the parties and Legal Aid bodies should not be charged for this unnecessary appearance.
Merits of the appeal
It is plain that although the merits of an appeal would not, in an application such as this, be considered in any detail, it is suffice to say that the appellant has presented a number of grounds of appeal which appear to raise matters that on their face do not appear devoid of merit.
Prejudice
Prejudice is an issue, as the decision in Jackamarra makes plain. But prejudice sits both ways. Here, the prejudice to the mother would be in denying her the opportunity to pursue her appeal, particularly in circumstances where the procedural misstep was not her fault. To visit that default on the mother would, necessarily, be of real prejudice to her.
It is accepted that if the appeal is reinstated, the father and paternal grandparents will incur further legal expenses and need to deal with the stress associated with litigation.
On balance however, the factors which weigh in favour of reinstatement including the consent of each of those who respond to the appeal, overwhelmingly favour an order for reinstatement, and I make an order to that effect.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 8 May 2018
Associate:
Date: 9 May 2018
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