PENMAN & FELTON
[2016] FamCAFC 266
•14 December 2016
FAMILY COURT OF AUSTRALIA
| PENMAN & FELTON | [2016] FamCAFC 266 |
| 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 respondent opposes reinstatement – Where the applicant provided an adequate explanation for the delay – Where the applicant is a self-represented litigant and has applied for a review of the decision of Legal Aid NSW to refuse his application for legal aid – Where the serious subject matter of the appeal weighs in favour of reinstatement – Appeal reinstated. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks that the applicant pay her costs of the application – Where circumstances giving rise to the application were caused by the applicant’s failure to comply with rules – Applicant to pay respondent’s costs fixed at $3,000. |
| Family Law Act 1975 (Cth): s 68C Family Law Rules 2004 (Cth): r 22.13 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Mr Penman |
| RESPONDENT: | Ms Felton |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Pearson |
| FILE NUMBER: | WOC | 525 | of | 2014 |
| APPEAL NUMBER: | EAA | 173 | of | 2016 |
| DATE DELIVERED: | 14 December 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 14 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 September 2016 |
| LOWER COURT MNC: | [2016] FCCA 1816 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Helen Volk Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Maguire & McInerney Lawyers |
Orders
That the Notice of Appeal filed on 12 October 2016 be reinstated.
That the father file and serve a draft appeal index no later than 23 January 2017.
That the father pay the mother’s costs of and incidental to the applications in an appeal in the amount of $3,000 within three (3) months from today’s date.
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 Penman & Felton 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).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 173 of 2016
File Number: WOC 525 of 2014
| Mr Penman |
Appellant
And
| Ms Felton |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
By Application in an Appeal filed on 17 November 2016 Mr Penman (“the father”) seeks to reinstate his Notice of Appeal filed on 12 October 2016. The appeal, which is against parenting orders made by Judge Altobelli on 14 September 2016, was deemed abandoned because the father failed to file and serve the draft appeal index. An application by him filed on 7 November 2016 to extend the period by a further eight weeks was dealt with in the first instance in chambers on 9 November 2016 and an extension was given to 16 November 2016. The application was then listed before the appeal registrar on 16 November 2016.
The father failed to appear before the appeal registrar and so on that day and with him not having filed the draft appeal index, the registrar dismissed his application and issued directions, the effect to which was that the appeal was taken to be abandoned pursuant to the operation of r 22.13(3) of the Family Law Rules 2004 (Cth) (“the rules”).
However one views it, whether by way of review of a decision of a registrar to dismiss the application or to reinstate the abandoned appeal, the effect of the application today is that the father wants his Notice of Appeal reinstated and further time within which to file the draft appeal index.
The subject child is the parties’ daughter who is currently five years of age. She lives with her mother, Ms Felton (“the mother”) who is the respondent to the appeal and the application. It is mother’s position that the application should be dismissed.
In the interests of preserving legal aid funds the Independent Children’s Lawyer (“ICL”) said the application should be dismissed. No submissions were made by the ICL relevant to the interests of the child, an omission which is somewhat troubling.
In any event, if the appeal is reinstated, the father seeks that the orders under appeal be set aside and that the proceedings be remitted for re-hearing. He also seeks an order staying some of the orders of the primary judge but that is a matter for the primary judge.
The Notice of Appeal suggests that the father is seeking an order that his Notice of Appeal filed on 23 July 2016 be expedited. There is no appeal dated 23 July 2016 and one can simply point out that the orders challenged were actually made, as I have said, in September 2016. It may be that it is a “cut and paste” error from another document.
The orders under appeal are serious and provide, inter alia, for the mother to have sole parental responsibility for the child; for the father to spend supervised time with the child at a contact centre for a period of two hours on four occasions each year, and otherwise for there to be no communication between the child and the father, save for the provision of birthday and Christmas cards and presents by post. Various orders were also put in place for the personal protection of the mother and the child, including restraining the father from approaching the mother or the child or coming within 100 meters of any place where they live, work or attend school and also restraining the father from publishing any photos or videos of the child in any public place or on any medium including social media. Should the father breach such orders, pursuant to s 68C of the Family Law Act 1975 (Cth) (“the Act”) the police may arrest the father without warrant.
Applicable law
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. Although that case dealt with an extension of time to appeal, the principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88). At page 480 the High Court 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: 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 determining whether strict compliance with 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 the parties of the grant or refusal of leave.
The decision of the High Court in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516, in particular, Gummow and Hayne JJ at [33] is also relevant:
…[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…
It will be apparent that I have yet to make reference to s 57 of the Legal Aid Commission Act 1979 (NSW) which is the basis upon which the father pursues this application. In my view, s 57 has no application to the matter at hand. Section 57 relates to an adjournment of proceedings. We are concerned, not with the adjournment of proceedings, but with whether or not a notice of appeal should be reinstated. The considerations are different.
But the father was in some trouble in any event in relation to his application assuming s 57 applied. He has, on any view, been fairly cavalier in terms of the time taken to first lodge the application for legal aid and then, if it is accepted and I probably do, to lodge the application to review the decision of Legal Aid NSW to refuse his application for legal aid.
Delay
In any event, pursuant to r 22.13 of the rules, the father was required to file his draft appeal index within 28 days of filing his Notice of Appeal. The rules provide that if an appellant fails to file the draft appeal index, the appeal is taken to be abandoned. As I mentioned earlier, the father had until 9 November 2016 to file his draft appeal index. This was confirmed through correspondence sent to the father from the appeals registry on 14 October 2016.
I mentioned earlier the father’s application to seek an extension of time to file his draft appeal book index. That application was filed two days before the draft appeal index was due and seems to have been presented on the basis that the father was in the process of appealing the decision of the Legal Aid NSW on 20 October 2016 to refuse his application for legal aid. It is apparent that the appeal to the Legal Aid Review Committee had not been filed as at 7 November 2016 and was filed, in fact, according to the father but I observe not with any credible documentation from Legal Aid NSW, on 15 November 2016. Thus, the application for an extension of time was listed for hearing before Registrar Cameron on 16 November 2016. Of course, as I have said earlier, an extension of time had already been given to that date and that extension was confirmed by way of letter sent to the parties on 9 November 2016.
The father explains his failure to appear on 16 November 2016 on his mistaken belief that the time of the hearing was rescheduled from 10.00 am to 2.00 pm. It appears the father received an urgent email from the chambers of Judge Altobelli notifying him of a procedural hearing to commence at 2.00 pm on 16 November 2016 by telephone. The father explains that, being as a self-represented litigant, he became confused and understood the email to relate “to the eastern appeals registry teleconference at 10.00 am on the same date.” As a result, he did not attend the teleconference at 10.00 am before Registrar Cameron.
Upon becoming aware of his error, it appears the father immediately filed an application for reinstatement of his Notice of Appeal.
Of course, documents tendered by the mother today would suggest that the father has the benefit of some legal advice and although he may be self-represented in relation to the appeal, he would not seem to be self-represented in relation to the costs application, the very application that was listed before Judge Altobelli. Some aspects of the father’s evidence are thus difficult to reconcile in a logical and credible way.
The timelines that I have outlined show that the father waited until very close to the final day to lodge his Notice of Appeal, very close to the final day to lodge his application for legal aid and very close to the final day to lodge his application to review the refusal of the grant of legal aid. The same observation can be made in relation to his application for an extension of time perhaps partially explained by the father’s decision to travel overseas rather than attend to the demands of litigation which he has commenced.
The explanation for the delay is troubling to a degree and tends to suggest that the father has some difficulty accepting the obligations on him as the moving party on an appeal to prosecute the appeal diligently. The same could be said for his approach to an application for legal aid and the associated review. But his lack of attentive diligence would not be so wanting that I would find that he lacks bona fides as that term is used under s 57 of the Legal Aid Commission Act 1979 or that his approach is to completely disregard his obligations as an appellant. The father is undoubtedly slow but not ridiculously so.
There is an explanation then for his delay and failure to file the draft appeal index in time which is accepted overall as tending to favour the exercise of the Court’s discretion for reinstatement.
The nature of the appeal
However, it is the serious subject matter of the appeal itself which tips the balancing exercise in favour of reinstatement. The effect of the orders of the primary judge is to all but terminate this child’s relationship with her father. His Honour has set out in a lengthy judgment many reasons why he is satisfied that this is in the best interests of the child. It may ultimately come to pass at the hearing of the appeal that his Honour’s findings and ultimate exercise of discretion should not be disturbed but there are a few proceedings more grave than the type with which we are concerned in this case. This fact weighs heavily in support of reinstatement. I accept that this will be distressing to the mother and imposes a real burden on her in needing to manage the ongoing stress of litigation that she thought was at an end. It is to be hoped that the child can be spared the burden of that additional stress. However, the overall interests of justice notwithstanding the prejudice that I accept falls on the mother, requires that the appeal should be allowed to go forward.
The question becomes then, on what terms? It was on 7 November 2016 that the father said he needed eight weeks within which to file his draft appeal index, the expectation being that his application for the refusal to grant legal aid would be determined within that time and his solicitor would have time to draft the appeal index. With the Christmas season in mind I propose to require the draft appeal index to be filed by 23 January 2017. The father needs to understand that if the draft appeal index is not filed, whether it be by him or his solicitor then the appeal will again be deemed abandoned. He would have very little prospect of persuading anybody that it should be reinstated. He has ample time himself between now and then to put together the draft appeal index and he sensibly should set about doing that now. If he has any further overseas trips planned my suggestions is they are deferred until he has attended to what needs to be done to get his appeal back on track.
Costs
The mother seeks an order that the father pays the costs of this application in the amount of $3,000. The application involves two attendances and the quantum seems to be appropriate. The question is whether the costs in the amount sought should be ordered at all? The father says he is in receipt of a Newstart Allowance. His business is fledgling and he has limited income. Otherwise his assets comprise property in which he resides. He says that an order for costs would cause him some hardship. I accept an order for costs would cause some hardship, which is all the more reason for a person in the position of the father to do what is necessary to prosecute an appeal without him or others being put to unnecessary expense and effort. The unnecessary effort involved in this application has been caused entirely by the father. If he was worried about the possibility that he may incur costs by failing to comply with directions and to attend court when he is required to attend, he would pay very close attention to what is required of him as set out in correspondence from courts.
There is no reason why the costs consequences of his somewhat cavalier approach should be visited on the mother. An order for costs is both justified and proper in the amount sought. Ordinarily an order for costs is usually payable within 28 days but because this will occasion some hardship to the father, the time will be extended to three months.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 14 December 2016.
Associate:
Date: 16 December 2016
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