Olman & Teitzel
[2018] FamCAFC 11
•29 January 2018
FAMILY COURT OF AUSTRALIA
| OLMAN & TEITZEL | [2018] FamCAFC 11 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks orders in effect extending the time to file four Notices of Appeal against interim orders – Where there is no reasonable explanation for the failure to file within time – Where none of the proposed appeals have any merit or any reasonable chance of success – Where there is prejudice to both parties whichever way the application is decided – Where the justice of the case lies in dismissing the application – Application dismissed. FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the application is opposed – Where the applicant has been wholly unsuccessful in the proceedings – Where there are circumstances which justify an order for costs being made – Where the costs ordered should be on a party/party basis even though there are some concerning aspects to this matter which go close to justifying an order for indemnity costs – Costs ordered as sought by the respondent. |
| Family Law Act 1975 (Cth) s111B Family Law (Child Abduction Convention) Regulations 1986 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Olman |
| RESPONDENT: | Ms Teitzel |
| FILE NUMBER: | MLC | 547 | of | 2017 |
| APPEAL NUMBER: | SOA | 96 | of | 2017 |
| DATE DELIVERED: | 29 January 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 29 January 2018 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Carne |
| SOLICITOR FOR THE RESPONDENT: | Westminster Lawyers |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS MADE: | 20 January 2017, 14 February 2017, 7 April 2017, 27 October 2017 |
Orders
The application in an appeal filed on 15 December 2017 be dismissed.
The applicant father pay the costs of the respondent mother fixed in the sum of THREE THOUSAND TWO HUNDRED AND EIGHTY-THREE DOLLARS AND SIXTY CENTS ($3,283.60).
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 Olman & Teitzel 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: SOA 96 of 2017
File Number: MLC 547 of 2017
| Mr Olman |
Applicant
And
| Ms Teitzel |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The application before the court is an application in an appeal filed by Mr Olman (“the father”) on 15 December 2017.
In that application the father, in effect, seeks an extension of time to file four Notices of Appeal against interim orders made by Judge Williams. He also sought expedition of the hearing of the appeals as a second order in the application.
The application is supported by an affidavit also filed by the father on 15 December 2017, and he has, as is required, provided Draft Notices of Appeal against each of the orders that he seeks to appeal, those orders being made respectively on 20 January 2017, 14 February 2017, 7 April 2017 and 27 October 2017.
I also mention that the father on 17 January 2018, filed what he describes as a “summary of arguments” and a list of authorities, and I will return to that document shortly.
The application is opposed by Ms Teitzel (“the mother”).
The father has appeared before the court today without legal representation and he tells me that he has not sought any legal advice about the application. Unfortunately, as is common with litigants who appear without legal representation, the father suffers from a lack of legal knowledge and that is particularly apparent in how he has sought to present his application. By that I mean, it is readily apparent that the father has confused the application he should be making, namely an application for an extension of time to file a Notice of Appeal, with an application for leave to appeal. For example, the summary of argument the father filed is headed “leave to appeal”.
It is apparent that the father has made a number of attempts to ascertain what is required to succeed in his application, he has read widely, and he has cited a number of authorities to me. Unfortunately, none of those authorities have any relevance to the application that I have to determine today, and I suspect that is because of the father’s confusion about the application, he thinking it is an application for leave to appeal.
To repeat, there are four sets of orders the father seeks to appeal against and in respect of which he seeks an extension of time. The need for him to obtain an extension of time is because of his failure to file Notices of Appeal against the orders of which he complains within the time required under the Family Law Rules 2004 (Cth) (“the Rules”), namely a period of 28 days from the date of the orders being made, or the delivery of reasons if that is later than the date of the orders.
In a general sense the orders can be described as sequential interim orders addressing matters arising along the way prior to a final hearing, and I am told that a final hearing is set for later this year. I also note that it is not just interim parenting orders which the father wishes to appeal against; there are also interim and procedural property settlement orders amongst those orders that he has identified. That in itself creates a difficulty for the father, in that if he is successful in gaining an extension of time, he needs leave to appeal against the interim and procedural orders made by way of property settlement, but he does not need leave to appeal against the interim parenting orders that have been made along the way, and I will come to the orders shortly.
The legal principles
The law in relation to an application for an extension of time is well settled and the relevant principles are helpfully set out in the oft-quoted High Court judgment of Gallo v Dawson (1990) 93 ALR 479, and particularly in the judgment of McHugh J 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 this case, to repeat, the father has filed an affidavit in support of the application, but unfortunately he has failed to address sufficiently the relevant matters to be considered in determining this application, and in particular, those matters identified by McHugh J. That said though, I have permitted the father to address me at length in relation to the reasons for his failure to file the Notices of Appeal within time, and the merits of those appeals.
Although there are many factors identified by McHugh J in Gallo, the factors relevant to this case are, the reasons for the failure to file Notices of Appeal within time, the prospects of success of the proposed appeals, and the question of prejudice to the parties depending upon whether the application is granted or refused.
The reasons for the failure to file Notices of Appeal within time
Although I have permitted the father to address me at length about the relevant factors, in relation to this factor he did nothing more than repeat what he had set out in paragraph 32 of his affidavit filed on 15 December 2017, and in that paragraph he has effectively set out three reasons.
First, a lack of financial resources and inability to purchase court transcripts on time. As I explained to the father, that is not a sufficient reason for delay. He does not need to have transcripts to be able to file a Notice of Appeal. He can, for example, file a Notice of Appeal, then if he wishes he can obtain transcripts subsequently, and if necessary amend the Notice of Appeal.
Secondly, the father has attempted to negotiate with the other party out of court, and he says that was unsuccessful because of legal advice the mother received. That is also not a sufficient or adequate reason for the failure to file a Notice of Appeal within time. It does not prevent the father from filing the Notice of Appeal within the 28 day period. That period of time is there for a reason, and any attempts to resolve the matter, or obtain advice or whatever, should occur within that 28 day period so that the opportunity to appeal is not lost.
Thirdly, an alleged difficulty in preparing “appeal applications”. Plainly, as I have said, the father is without legal representation and I accept that it is sometimes difficult for litigants who are in that position to prepare court documents. However, from the father’s presentation today, the research he has done, and particularly the submissions that he has made, I do not accept that it was beyond his capacity to prepare Notices of Appeal to be filed within time. It is but one document, and a document which is designed to be filled out and completed by a litigant without legal representation.
In summary, in my view, the father has not provided any reasonable explanation for his failure to file a Notice of Appeal within time.
The merits of the proposed appeals
The first set of orders sought to be appealed against are those made on 20 January 2017, and, in particular, the order that the father seeks to complain about is the order whereby the court requested that the Australian Federal Police place the name of the one child who was the subject of the proceedings at that time, on the Airport Watch List. The father particularly complains because that order was made ex parte.
The father sets out three grounds of appeal in his Draft Notice of Appeal in relation to those orders.
First, that the application made by the mother was based upon incorrect evidence. As I explained to the father, that cannot be classified as a competent ground of appeal. The task for an appellant in an appeal is to establish error by the trial judge, and it is not error by the trial judge that the application is based upon alleged incorrect evidence. Thus, that is a ground of appeal which simply cannot succeed.
Secondly, that the Airport Watch List order was made without notice to the biological and legal parents of the child, and that the step‑parent who made the application did not have “custodial rights” to be able to request such an order. Unfortunately for the father, the latter statement is incorrect as a matter of law. It became apparent during submissions that what the father was referring to in the context of “custodial rights”, and the ability to obtain orders such as this, were the Regulations made in relation to the Family Law (Child Abduction Convention) Regulations 1986, and in addition, s 111B of the Family Law Act 1975 (Cth) (“the Act”). As I explained to the father, those Regulations and that section are completely irrelevant to the matter that was before the trial judge.
As to the fact of the order being made ex‑parte, having read the documents, it is readily apparent that there was a concern that the child may be taken overseas, and once that concern was raised, it was appropriate and necessary for her Honour to make the order that she did. Equally, as I have attempted to explain to the father, but he, with respect to him, does not seem to appreciate or understand the point, what her Honour did was that she did not leave the matter there, she ordered all of the relevant documents to be served on the father and the biological mother of the child, and adjourned the matter to 2 February 2017 for further consideration. Thus, there is no error here by the trial judge.
Thirdly, that the granting of the application was against the best interests of the child as a foreign citizen, with his mother and relatives living overseas, and the order was against the child’s civil and political rights.
Again, that is not a ground of appeal that can succeed. Her Honour had the jurisdiction and the power to make the order that she did. She made it because of concerns that she was satisfied about, namely that the child may be taken overseas. To repeat, her Honour correctly ordered service of the documents and adjourned the matter to a date in the very near future for further consideration. Thus again, in my view, there is no error here by the trial judge.
Pausing there, I do not propose to go through each and every one of the grounds of appeal that appear in the other three Draft Notices of Appeal, but by undertaking that course with this particular Draft Notice of Appeal, I have provided the flavour of the challenges that the father mounts. In any event, having read the documents, and the transcripts of the hearings before the trial judge, none of the grounds of appeal in any of the other Draft Notices of Appeal have any reasonable chance of success.
I do need to deal specifically with the proposed appeal against the orders made on 27 October 2017. On the face of the documents there was some confusion as to what the father was complaining about. It seemed that he was alleging that on 27 October 2017 the trial judge had refused to disqualify herself, and he wished to appeal against that. However, what happened on 27 October 2017 is that there was an application before the court, namely an Application in a Case filed on 13 October 2017 by the father, which sought that the trial judge disqualify herself. Her Honour, on 27 October 2017, dismissed that application because the application was incompetent. Her Honour did not leave the matter there though, and she then went on and ordered that the father be granted leave to make an oral application that she disqualify herself, and adjourned the matter to 15 February 2018.
It then became apparent during the father’s submissions that what he was in fact complaining about was the dismissal of his application filed on 13 October 2017. Given though the trial judge’s order allowing the father to pursue an oral application for the judge to disqualify herself, there is no utility whatsoever in permitting an appeal against the dismissal of the application filed on 13 October 2017. Thus, there can be no merit in the proposed appeal against the orders made on 27 October 2017.
The prejudice to each of the parties
Plainly, if the application is refused, there will be prejudice to the father because he will not be able to pursue appeals against the orders of which he complains. Equally, there will be prejudice to the mother if the application is granted because, as the matter stands, there is no appeal on foot against any of the orders of which the father complains, and the mother is entitled to proceed on that basis and organise her life accordingly. For the mother to then be confronted with appeals would clearly be a prejudice to her because she would have to respond to those appeals; she would have to instruct legal representatives, and she would have to deal with them.
Conclusion
I am not satisfied that the father has provided any adequate explanation for the failure to file Notices of Appeal within time. I am also not satisfied that the father has any reasonable chance of success in relation to any of the proposed appeals, and indeed, I am not satisfied that any of the proposed appeals have any merit at all.
That leaves, of course, the issue of prejudice, and given that there will be prejudice whichever way I decide in terms of this application, in my view, the justice of the case requires its dismissal.
Costs
I now have an application for costs on behalf of the mother.
The primary basis of the application is that the father’s application has been wholly unsuccessful. In addition, submissions have been made in relation to the conduct of the proceedings by the father, and in particular, as to certain allegations that he has made in his documents alleging, for example, collusion between the court and the mother’s solicitors.
As a result of those matters, the mother seeks an order by way of indemnity costs. I am told that the amount on scale would be $3,283.60, and the amount on an indemnity basis would be $5,472.50.
The father opposes any order for costs but, in my view, there are circumstances here that justify an order for costs, and at the very least, one of those circumstances is that he has been wholly unsuccessful in the proceedings.
Thus, the only question for me is whether costs should be on an indemnity basis or on a party/party basis.
The relevant authorities require there to be exceptional circumstances to justify indemnity costs. This matter provides some concerning aspects and goes close to justifying an order for indemnity costs, but I am not prepared to go that far, and I propose to order costs on a party/party basis.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 29 January 2018.
Associate:
Date: 13 February 2018
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