NORRIS & MATTHEWS - [2018] FamCAFC 132

FAMILY COURT OF AUSTRALIA

NORRIS & MATTHEWS

[2018] FamCAFC 132

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the mother seeks reinstatement of her appeal against parenting orders – Whether there is a relevant circumstance which would cause the case to be reinstatement – Where there may be prejudice to the father – Where application is dismissed.

Family Law Act 1975 (Cth) s 97(3)
Family Law Rules 2004 (Cth)

Batey-Elton & Elton [2009] FamCAFC 101
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Ms Norris

RESPONDENT:

Mr Matthews

FILE NUMBER:

NCC

2226

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

17 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

17 July 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 June 2017

LOWER COURT MNC:

[2017] FamCA 461

REPRESENTATION

THE APPELLANT:

In person (by telephone link)

SOLICITOR FOR THE RESPONDENT:

Ms Heslop of Oliver Campbell Heslop Solicitors (by telephone link)

Orders

(1)The application for reinstatement of Appeal EA 86 of 2017 is dismissed.

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 Norris & Matthews 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 86 of 2017
File Number: NCC 2226 of 2015

Ms Norris

Applicant

and

Mr Matthews

Respondent

REASONS FOR JUDGMENT

Ms Norris (“the mother”) seeks that her appeal against parenting orders made by Austin J on 30 June 2017 be reinstated, it having been deemed abandoned by operation of Rule 22.44 of the Family Law Rules 2004. Mr Matthews (“the father”) opposes the mother’s application. Property settlement proceedings between the parties while commenced have not been concluded. The mother is an undischarged bankrupt and her property in Australia has vested in the Trustee in Bankruptcy.
The parenting orders relate to the child of the mother and the father who was born in 2010. The orders relevantly provided that the father have sole parental responsibility for the child and that the child live with him. A notation to the orders explained that the orders “intentionally make no provision for the child to spend time or communicate with the mother” and that if, when and how such time or communication would occur were decisions that the father would make by reason of his having sole parental responsibility.
The mother brought an appeal against these orders on 27 July 2017 within the time provided for lodging an appeal. On 20 September 2017 procedural orders were made for the preparation of the appeal. The orders required the mother to be responsible for the preparation of the appeal books and that the books and the transcript be filed and served by 15 November 2017.
On 4 October 2017 the mother filed an application in an appeal seeking orders that the appeal be expedited and the respondent bear the costs of the preparation of the appeal books. The father sought an order for security for costs. That application was heard on 7 November 2017 and the mother’s applications were dismissed and the father’s application for security for costs allowed. Orders made on 13 November required the mother to lodge security for costs of $20,000 within 28 days of the order being made, and failing compliance, the appeal would be stayed. There was no compliance with the order for security and the required funds were not lodged.
On 15 November 2017 the mother’s appeal was deemed abandoned because she failed to file her appeal books in accordance with the procedural orders made on 20 September 2017.
Thus on 26 June 2018, the mother applied to reinstate the abandoned appeal.

Background

Given the issues raised on this application, it is useful to here extract the background from the reasons for decision of 13 November 2017 and from the primary judge’s reasons in the parenting proceedings to give context and to lend understanding to the issues necessary to be determined on the application.
The parties commenced their relationship in July 2008 and married in August 2009. The child was born in 2010. While there is some dispute as to the date of separation, the parties continued to live at the same property until early August 2015.
In late August 2015 the father commenced parenting proceedings in the Federal Circuit Court of Australia and the matter was transferred to the Family Court of Australia in December 2015.
In January 2016, while the principal parenting proceedings were awaiting hearing, interim consent orders were made between the parties which provided that they have equal shared parental responsibility and that the child live with the mother and spend substantial and significant time with the father, which included school holiday time and regular time during the school week. On

9 December 2016 the mother’s interim application seeking an order that she be permitted to relocate the child’s residence to overseas was dismissed. A further interim application seeking the same relocation order was dismissed on 22 December 2016 and the parties were restrained from removing the child from Australia.
Those orders having been made, the child spent Christmas Day with the mother. The father expected the child to be returned to his care on Boxing Day, however the mother did not return the child. Instead the mother went into hiding with the child and the father did not see the child for nearly two months.
In response, the father sought a recovery order and the mother again sought orders to enable her to relocate the child’s residence overseas. The mother’s application was dismissed. Recovery orders were made but were unable to be executed because the mother and child could not be found.
The mother took the child to school in mid-February 2017. The teachers notified the police and the father collected the child from school. She has been in the father’s care since that time.
The father then made an application for the child to live with him. Interim orders were made that the child live with the father and spend supervised time with the mother for two hours each week. The primary judge noted:
15. … Given the mother threatened to abandon the child and return alone to [overseas] if orders were made in those terms, provision was made for suspension of the child’s supervised visits with the mother if she failed to attend on two consecutive occasions. The mother moved to [overseas] within days of those orders being made, but she flies back to Australia to see the child, ensuring never to miss two consecutive visits and cause suspension of the orders.
(Footnotes omitted)
The primary judge also considered the issue of family violence. His Honour observed that when the parenting proceedings were commenced the father filed a Notice of Risk asserting that the mother had been physically violent towards him. The mother shortly afterwards filed a Notice of Risk raising similar allegations against the father. The issues raised in the notices were not judicially determined as the parties entered into the January 2016 consent orders.
The primary judge concluded that there was no risk of harm to the child from exposure to family violence nor did he find a need to protect the child from other alleged abuses while in the father’s care.
Ultimately his Honour found that the child could not have a relationship with both parents because it was apparent that the mother would not allow the child to have a relationship with the father if the child lived with her and if the child lived with the father, the mother indicated that she would not see the child.

REINSTATMENT

The well-known principles derived from Gallo v Dawson (1990) 93 ALR 479 have been applied to applications for reinstatement of an appeal, although the question in Gallo v Dawson concerned the extension of time in which to appeal rather than reinstating a filed appeal (see Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101).
The discretion to extend time, or to reinstate an appeal, 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.

Delay

The appeal was brought within the time provided by the Rules. However after the appeal was deemed abandoned, the mother did not seek reinstatement for a relatively long period of time being approximately seven and half months.
Although the application was supported by a very lengthy affidavit, it is difficult to discern the reason for the delay in seeking to have the appeal reinstated although it appears to be because the mother did not have the funds necessary to pay the ordered security for costs. However, the mother asserted that her Trustee in Bankruptcy has sold a property owned by her in Australia and she believes that there will be a surplus of funds over expenses and payment to creditors. The orders sought in the application for reinstatement include an order directed to the Trustee to pay the surplus to the mother and from which she proposes to pay the ordered security. The mother submitted in the hearing that the appeal books would be filed and served on 17 July 2017.
The evidence as to the mother’s financial means is far from clear as I referred in the reasons of 13 November 2017. Significant issues as to disposition of funds are raised by the father, he alleging that the mother had moved funds and ownership of property around so as to defeat the claims against her. The mother denies that she has. These contentions will no doubt be resolved in the final property settlement proceedings.
Nevertheless, I was in November 2017, and remain unable to find as a fact that the mother lacks the necessary funds (or lacked the capacity to secure those funds) necessary to properly prosecute the appeal. In coming to this conclusion I take into account that the mother was able to borrow sufficient funds to pay for the transcript of the proceedings.
The mother annexed to her affidavit in support of the reinstatement, a letter from the Trustee in Bankruptcy to the creditors dated 18 June 2018 in which he indicates that sufficient funds have been recovered to permit all outstanding debts to be paid in full. However that letter does not deal with any expected surplus that may remain nor does it support the mother’s application that she is entitled to the surplus.
Indeed, in his response to the mother’s affidavit, the father asserts that the Trustee in Bankruptcy is seeking to be joined as a party to the property proceedings between the parties and the application is set for hearing before a trial judge on 2 August 2018. The Trustee has foreshadowed an application that, on the conclusion of the payments to the proved creditors in the bankruptcy, any surplus be held by the husband’s solicitor on trust to service joint mortgage debts of the parties.
Although on the eve of the hearing the mother filed submissions responding to the father’s submissions, she made no mention of the impending application, and, when it was raised with her, said that since the father had been able to sell a property and have the benefit of the proceeds, she saw no reason why she should not immediately have any surplus of funds over payments to creditors paid to her.
Obviously there is a significant issue as to the disposition of any surplus remaining from the payments by the Trustee and that issue is not yet determined. It does indicate however that there is little likelihood of the mother having access to all or part of those funds for some time, if at all.
If the appeal was to be reinstated it is important to note that the order made by me on 13 November 2017 for security for costs would still apply to this appeal. The mother says that she is seeking orders “to use some more of the remaining money the trustee is holding to pay the security order …”.
Thus, to the extent that lack of funds is the basis for the mother’s failure to seek reinstatement of the appeal sooner, the funds to which she points as enabling her to prosecute the appeal are, at least at the moment, unavailable.
As to why the mother failed to comply with the direction to file the appeal books, she complained that because the application was refused on 13 November 2018, she had only two days in which to comply with the preparation of the appeal books and thus, in effect, it was not her fault that the appeal books were not prepared as ordered. It is difficult to understand why the mother did not seek an extension of the time in which to comply with that order or, given that she sought expedition of the appeal in the same application did not have the preparation of the appeal books already underway. Nevertheless, no application for extension was made and the appeal was deemed abandoned on the mother’s failure to comply with the order.
Lest it be thought that delay in bringing the appeal to hearing through failure to comply with procedural directions is some technical or minor matter, it is apposite to recall what was said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. That case, although concerned with time limits for the commencing of proceedings, nonetheless resonates on the question of delay and justice. McHugh J said at 553:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
Moreover, s 97(3) of the Family Law Act 1975 (Cth) (“the Act”) contains the statutory prescription that in proceedings under the Act the Court “shall endeavour to ensure that the proceedings are not protracted.”
It should be noted here that it is now almost twelve months since the mother filed her Notice of Appeal and she has done very little to prosecute that appeal. However, the principal issue here is the length of the delay in seeking reinstatement of the appeal. As was argued on behalf of the father, the parenting orders have now been in place for 12 months, and this application for reinstatement is brought nearly 8 months after the appeal was abandoned. Further, it was argued that there is no present likelihood that the mother will be able to pay the ordered security if the appeal is reinstated.

Merits of the appeal

In determining the application for reinstatement, it is necessary to consider whether the appeal is so devoid of merit that it would be futile to make the order sought. In such a case it would create an injustice to the father and cause needless expenditure of public funds if the appeal was otherwise to proceed. It is recognised that it must be clearly shown that the appeal would fail before an applicant is denied the right to have his or her appeal heard.
This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. 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.
Where an appeal has been properly instituted but not appropriately prosecuted, it is not necessary to embark on a detailed examination of the prospects of success as Brennan CJ and McHugh J said in Jackamarra v Krakouer (1998) 195 CLR 516 at [7]:
It is understandable that, where the applicant's right of appeal has gone, courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success. But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, “must be investigated and decided in the manner appointed”. If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.
(Footnotes omitted)
The mother’s Notice of Appeal sets out twenty four challenges to his Honour’s orders. The grounds, in essence, challenge the weight attributed to the evidence before the primary judge or the facts found by him, such appeals face considerable hurdles to appellate intervention. It could not however be said that on its face the appeal is so devoid of merit that it would be futile to reinstate it.
However, in Jackamarra v Krakouer Gummow and Hayne JJ said at [33] also said:
... [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.
In this matter, although the appeal was regularly filed, all things are not otherwise equal. There is clear prejudice to the respondent through the delay in bringing the application for reinstatement, not only having been led to understand through the inaction on the mother’s part in seeking reinstatement that the orders would not be challenged but the prospect of incurring further expense in meeting the appeal. Further, the uncertainty as to whether the mother will ever be in a position to pay the ordered security leads me to the view that there is little likelihood that the appeal would be prosecuted even if it was reinstated, lead me to dismiss the application.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

17 July 2018.

Associate:

Date: 17 July 2018