Pennant and Tomlinson - [2017] FamCAFC 149

FAMILY COURT OF AUSTRALIA

PENNANT & TOMLINSON

[2017] FamCAFC 149

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a Notice of Appeal – Where the applicant’s solicitor failed to properly file the Notice of Appeal on time – Where the appeal is at least arguable – Where no prejudice would flow to the other parties if an extension of time is granted – Application allowed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Jess v Scott (1986) 12 FCR 187

APPELLANT:

Mr Pennant

RESPONDENT:

Ms Tomlinson

FILE NUMBER:

PAC

301

2016

APPEAL NUMBER:

2017

DATE DELIVERED:

27 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Aldridge

HEARING DATE:

27 July 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 June 2017

LOWER COURT MNC:

[2017] FCCA 1284

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Slater & Gordon Lawyers

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW Penrith

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

Orders

That the time for filing a Notice of Appeal against the orders made by Judge Newbrun on 19 June 2017 be extended up to and including 3 August 2017.

Notation:

(A)The Applicant’s solicitor will not charge the Applicant for this Application in an Appeal.

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 Pennant & Tomlinson 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 JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 82 of 2017
File Number: PAC 301 of 2016

Mr Pennant

Appellant

And

Ms Tomlinson

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 19 July 2017, Mr Pennant (“the father”) seeks an extension of time in which to appeal against interim parenting orders made by Judge Newbrun on 19 June 2017. The proceedings between the father and Ms Tomlinson (“the mother”) concerned the parties’ child (“the child”) born in 2014. The child has a significant medical condition and requires greater care than other children.
On 12 October 2016 the parties agreed to interim parenting orders which, amongst other things, provided that the child live with the mother and spend supervised time with the father at a contact centre for two hours each fortnight.
Shortly thereafter the father brought an application seeking to vary these orders so that the child would spend unsupervised time with him on a graduating basis beginning each Sunday for two hours for two months, then each Sunday for three hours for two months progressing to five hours and then eight hours each Sunday.
The child’s interests were represented by an Independent Children’s Lawyer (“ICL”) who, generally speaking, according to his Honour’s reasons largely supported the father’s application, but subject to three occasions of supervised time at a contact centre first occurring and upon the father obtaining “an understanding and advice in dealing with the child’s needs and medical issues”.
The ICL, however, did support orders for significant drug testing of the father.
Essentially, the father’s application was unsuccessful, but the time the child was to spend with the father was increased. An order was made that the child spend two hours per week with the father supervised by a contact centre.
The father now wishes to appeal from that decision. The evidence of his solicitor was that she was instructed to lodge an appeal on 13 July 2017. Because the solicitor was unwell at the time, was managing a heavy workload and because she was attending court on 17 July 2017, she was not in a position to properly consider and prepare what she described as an “Appeal Form” until late that day.
Nevertheless, she prepared a document, described again as an “Appeal Form” or as an “Application for an Appeal” later that day. The solicitor then attempted to file that document in the Federal Circuit Court of Australia on the Commonwealth Courts portal, only to find that the portal offered no provision for the filing of an “Appeal Form”. Of course, appeals from the Federal Circuit Court of Australia are taken to the Family Court of Australia, so that is not surprising. She then filed the document under the category of “Summary of Argument” as she was keen to file it that day being aware that 17 July 2017 was the last day on which an appeal could be filed. The prescribed fee for lodging a Notice of Appeal was not filed.
The following day the solicitor was advised that the document had been incorrectly filed and that as no fee had been paid, it had been removed from the portal.
The principles which apply to an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J 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 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
The mother neither consented to, nor opposed, the application. It was not opposed by the ICL. I expect of course that both may oppose the appeal in due course if the Notice of Appeal is lodged.
I bear in mind that the delay between the time the Notice of Appeal should have been filed and the bringing of this application is brief indeed.
There is, however, no explanation as to why it was that the instructions to file an appeal were not given to the father’s solicitor until 13 July 2017.
The father’s solicitor has given evidence to which I have already referred about her attempt to comply with those instructions on 17 July 2017. It has to be said that a Notice of Appeal is a significant document and that the grounds of appeal are important and require careful consideration and drafting. I accept that the father’s solicitor was well-meaning but if the drafting of a proper Notice of Appeal and compliance with the rules as to its filing was not part of her usual practice, she needed to direct the client to a lawyer who was so familiar or to acquaint herself with the necessary knowledge to be able to comply with the Family Law Rules 2004 (Cth).
I note that, quite properly, the father’s solicitor has indicated that she will not be charging her client for this application.
However, as the discussion in Jess v Scott (1986) 12 FCR 187 makes clear, the failure by a solicitor to take proper steps within time may be a basis for an extension of time.
I am therefore satisfied that there is a reasonable explanation for the failure to file the Notice of Appeal on time.
I turn then to the merits of the appeal. The decision from which the appeal is sought to be taken is an interim parenting decision. The proposed grounds of appeal raise issues of the adequacy of the primary judge’s reasons and the weight that was given to particular evidence. The bar to challenges of the latter kind is high: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513. I also have to say that I found some of the proposed grounds hard to follow.
Nonetheless, I shall proceed on the basis that some of the grounds at least have some prospects of success. In doing so, I make it quite clear that the opportunity for a court on an application to consider the merits of a proposed appeal is limited indeed because of the very limited nature of the material the court has before it.
Neither the ICL nor the mother pointed to any prejudice that would flow if an order was made.
Taking all these matters into account, I am satisfied that there should be an extension of time as sought.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 27 July 2017.

Associate:

Date: 1 August 2017