OAKS & UDALL
[2016] FamCAFC 96
•14 June 2016
FAMILY COURT OF AUSTRALIA
| OAKS & UDALL | [2016] FamCAFC 96 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time – Where the father filed a Notice of Appeal out of time – Where the father seeks to appeal final parenting orders which provide that the child live with the mother and spend no time with the father until he turns sixteen – Where there is sufficient merit in the appeal such that granting an extension of time would not be futile – Where the father would suffer an injustice if leave is not granted – Application allowed – Applicant ordered to pay the costs of the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) |
| Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Oaks |
| RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Ms Udall Mr Layson |
| FILE NUMBER: | PAC | 134 | of | 2009 |
| APPEAL NUMBER: | EA | 61 | of | 2016 |
| DATE DELIVERED: | 14 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 31 May 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 December 2015 |
| LOWER COURT MNC: | [2015] FamCA 1101 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms L Smith |
| SOLICITOR FOR THE APPLICANT: | Harb Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr P Guterres |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr A Layson of Sarah Bevan Family Lawyers |
Orders
The time in which the applicant may file a Notice of Appeal against the orders of the Honourable Justice Hannam made 10 December 2015 be extended until 27 June 2016.
The applicant pay the Independent Children’s Lawyer’s costs of and incidental to his application to extend time to file the Notice of Appeal, such costs to be agreed or assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oaks & Udall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 61 of 2016
File Number: PAC 134 of 2009
| Mr Oaks |
Applicant
and
| Ms Udall |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Mr Oaks (“the father”) seeks to appeal against parenting orders made by Hannam J on 10 December 2015. The orders concern the child D (“the child”), the son of the father and Ms Udall (“the mother”). The child was born in 2004.
The effect of her Honour’s orders was that the child live with the mother and, until he turns sixteen, spend no time with the father.
Although the father attended court and was provided with her Honour’s reasons for judgment and heard the orders pronounced by her on 10 December 2015, the appeal was not sought to be filed until the 28 April 2016. Leave is thus required to enable the father to appeal against her Honour’s orders. By the same application in which leave to appeal was sought, the father also sought an order that the hearing of the appeal, if leave be given, be expedited.
In the course of the hearing, the application for expedition was withdrawn and the argument concerned whether leave should be given to the father to bring the appeal notwithstanding that the time for filing had elapsed.
Background
It is useful to give some factual context to the issues to be considered on the application.
The parties met and began living together in Spain in 2002 and the child was born in 2004. In December 2007 the father and the child moved to Australia and the mother and her child from a previous relationship arrived shortly afterwards.
The parties separated in early 2009 and, after separation, the child remained with the father.
Very shortly after separation, the mother commenced proceedings in relation to the child. Since that time further proceedings have been brought and orders have been made in relation to the child spending time with the mother. It is uncontroversial that despite the orders, the child has spent little time with the mother although the reasons for that situation were the subject of significant contention before her Honour.
Each of the parties alleged before her Honour that the other parent had physically and sexually abused the child and had otherwise neglected him.
Her Honour found that at the date of the hearing before her, the child had no relationship with the mother. Her Honour found, based on her acceptance of the opinion of the single expert, that the father has systematically alienated the child from the mother. She further accepted the expert’s opinion that having determined the parent with whom the child will live, there would have to be limited or no contact with the other parent.
Her Honour concluded after considering the factual issues between the parties and the allegations of abuse and neglect, that the father had engaged in psychological abuse of the child and had perpetrated family violence. Thus her Honour found the presumption of equal shared parental responsibility rebutted and ordered that the mother have sole parental responsibility for the child.
The application
Despite the orders and reasons for judgment being provided to the father by his solicitor on 10 December 2015, no appeal was sought to be brought until
28 April 2016.
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. The time in which the father could appeal expired on 7 January 2016.
The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 and in the judgment of McHugh J at 480, his Honour said:
… 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. 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. 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. 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. 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…
(Citations omitted)
As part of a consideration of the application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that before an applicant is denied the right to have his or her appeal heard, it must be clearly shown that the appeal would fail.
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.
Merit of the appeal
Counsel for the father argued that the grounds of appeal demonstrate that the appeal has merit and referred to Ground 1 in the Draft Notice of Appeal as reflecting the strength of the father’s appeal. Counsel for the mother argued that that particular ground was based on a flawed understanding of the trial judge’s reasons.
In any event, the test of merit is, as the authorities demonstrate, an undemanding one. It is not necessary to show that the appeal would succeed, merely that the appeal is arguable.
I could not find that the father’s appeal was so entirely devoid of merit that to grant an extension of time, if otherwise appropriate, would be futile.
Explanation for the delay
Two affidavits were filed on the father’s behalf. One, sworn by him, which set out the steps he took in relation to the matter having received the judgment and orders of the trial judge. The second affidavit was sworn by the father’s solicitor in which he, generally, accepted the blame for the delay in bringing the appeal on within the time specified in the rules.
In summary then, the father contends that on 10 December 2015, counsel who then appeared for him explained the import of the reasons and her Honour’s orders. The father said that he needed time to read and understand her Honour’s reasons. He said that from 23 December 2015 until 27 January 2016, his solicitor’s office was closed and his solicitor was overseas from 8 January to
25 January 2016.
The father said that on 4 February 2016 he attended on his solicitor and gave him instructions to appeal and then confirmed those instructions on
15 February 2016.
The solicitor deposed that on 8 February 2016 he ordered the transcript of the hearing before her Honour and on 24 February 2016, having received payment for the transcripts from the father, made payment for them. The solicitor said that he received the last of the transcripts on 7 March 2016.
The father’s solicitor said that on 11 April 2016 he received confirmation of the father’s instructions on the appeal.
As to why the appeal was not then sought to be filed, the solicitor deposed that he was engaged in “a number of criminal trial matters” and it was not until
28 April 2016 that he attempted to file the Notice of Appeal.
It seems somewhat curious that given the nature of the orders made by her Honour, that is ordering the child to live with the mother and spend no time with the father for some years, that the solicitor did not anticipate an appeal and, perhaps, put in place some means whereby the time for filing of an appeal would be met. Why the filing of the appeal awaited the solicitor attending to other matters was not made clear.
Although counsel for the father argued that the delay was not the father’s “fault”, there is significant force in the argument of the respondent that it was the father’s responsibility to ensure those who he instructed attended to his matter in a timely way. However, I accept that the father did take such steps as were available to him to attempt to have the appeal commenced. On the other hand, the solicitor’s explanation for the delay is unpersuasive.
Prejudice to the mother
It was argued for the father that there was no prejudice to the mother by reason of the father’s delay in bringing on his appeal. The mother’s affidavit in response to the father’s application for extension of time makes it clear that the prospect of further proceedings is distressing for her and for the child.
Lest it be thought that delay beyond the prescribed time limit is no more than a mere technicality, it is not. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 - 552, McHugh J said apropos the limitation periods imposed for the commencement of civil proceedings, which is entirely apposite here:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods.
…
The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”.
…
Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties. The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one.
(Citations omitted)
I accept that the prospect of further litigation is a source of distress and upset for the mother and the child. However, if the application is not granted there will be prejudice to the father because he will not be able to challenge her Honour’s orders which provide for his future relationship with the child.
I will thus grant the father leave to file the Notice of Appeal out of time.
Costs
It was fairly conceded that in the event that the application was successful, the father should bear the mother’s costs of the application. I will order the father to pay the costs of the Independent Children's Lawyer referrable to the application.
Counsel for the mother was instructed by a lawyer employed by Legal Aid and did not seek a costs order.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
14 June 2016.
Associate:
Date: 14 June 2016
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