PHILLIPS & HANSFORD
[2019] FamCAFC 103
•17 June 2019
FAMILY COURT OF AUSTRALIA
| PHILLIPS & HANSFORD | [2019] FamCAFC 103 |
| FAMILY LAW – APPLICATION IN A CASE – EXTENSION OF TIME – Where the applicant’s explanation for the failure to file a Notice of Appeal within time is far from convincing – Where it is plain that the applicant made a forensic choice not to pursue an appeal and instead filed an Amended Application – Where there may be merit in one of the grounds of appeal but if allowed to proceed there would be no utility in the appeal – Application dismissed. FAMILY LAW – COSTS – Where the respondent makes an oral application for costs – Application adjourned. |
| Family Law Act 1975 (Cth) s 60I Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Phillips |
| RESPONDENT: | Ms Hansford |
| FILE NUMBER: | ADC | 4008 | of | 2013 |
| APPEAL NUMBER: | SOA | 26 | of | 2019 |
| DATE DELIVERED: | 17 June 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 11 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 November 2018 |
| LOWER COURT MNC: | NA Transcript only |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | Jacqui Ion Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms O’Connor SC |
| SOLICITOR FOR THE RESPONDENT: | D’Angelo Lawyers |
Orders made 11 June 2019
The Application in an Appeal filed on 7 May 2019 be dismissed.
The application for costs made by the respondent be adjourned for argument to 9:00 am on Monday 1 July 2019.
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 Phillips & Hansford 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 ADELAIDE |
Appeal Number: SOA 26 of 2019
File Number: ADC 4008 of 2013
| Mr Phillips |
Applicant
And
| Ms Hansford |
Respondent
REASONS FOR JUDGMENT
Introduction
On 11 June 2019 this Court heard the Application in an Appeal filed by Mr Phillips (“the father”) on 7 May 2019, seeking an extension of time to file a Notice of Appeal against orders made by Judge Young on 30 November 2018.
At the conclusion of the hearing I made orders dismissing the application and adjourning the oral application for costs made by Ms Hansford (“the mother”). Because of time constraints I was unable to deliver my reasons for judgment ex tempore, and I indicated that I would deliver those reasons as soon as I could. These are those reasons.
The application is supported by an affidavit of the father also filed on 7 May 2019, together with a Draft Notice of Appeal, being the Notice of Appeal that the father would wish to pursue if an extension of time was granted.
The application is opposed by the mother.
Pursuant to r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”), a Notice of Appeal must be filed within 28 days after the order appealed from is made.
On 2 April 2019 the father attempted to file a Notice of Appeal, but it was rejected because it was well out of time. Subsequently, and on 7 May 2019, he filed the Application in an Appeal seeking an extension of time to file a Notice of Appeal.
Applicable principles
The principles that apply to applications such as these are well settled. For example, in the High Court decision of Gallo v Dawson (1990) 93 ALR 479, McHugh J said this 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.
Thus, the discretion to extend time is provided for the sole purpose of enabling a court to do justice between the parties.
While the discretion is at large, typically the merits of the proposed appeal, the explanation for the failure to file within time, and any prejudice to either party, are factors to be considered in the exercise of that discretion. However, in this case, a significant issue is the utility of allowing the appeal to proceed, and I will address that in the context of the merits of the appeal.
Explanation for the failure to file within time
In the father’s application before the primary judge on 30 November 2018, he sought an order that the mother deliver up the child Y to him, or that a recovery order be issued such that the child be returned to him in compliance with the parenting orders that were then in existence. He also sought make-up time.
The child had sustained an injury to her knee, and the mother had retained her during her hospitalisation, and during her recuperation from her surgery.
During the hearing before the primary judge, in response to a question from his Honour, the mother’s counsel indicated that the child would be returned to the father’s care “as soon as the splint comes off”, which was anticipated to be at the end of December 2018. His Honour commented that that was “outrageous” given there was no medical evidence as to why the child would need to remain living with the mother for that length of time, and that caused his Honour to doubt the bona fides of the mother (Transcript 30 November 2018, pages 6-7).
The father says that despite his concern over the orders made by his Honour on 30 November 2018, he determined not to appeal in reliance on the indication from the mother’s counsel, and the comments by his Honour as to the position taken by the mother.
The orders made by his Honour on 30 November 2018 were first, to order that the parties attend mediation pursuant to s 60I of the Family Law Act 1975 (Cth) (“the Act”), and file the appropriate Certificate, and secondly, to adjourn the matter to 28 February 2019 for further consideration.
His Honour made those orders because his Honour found that he “did not have jurisdiction” to hear the application without a s 60I Certificate, relying on s 60I(7).
The child was not returned to the father at the end of December 2018, and on 12 February 2019 the father filed an Amended Application seeking the return not only of Y, but also of the other child X, given that that child had also been retained by the mother in breach of the parenting orders. Importantly, the Amended Application was in virtually the same terms as the earlier application, and make-up time was again sought.
That application was heard and determined by his Honour on 28 February 2019, namely the adjourned hearing date of the earlier application. On that date his Honour also had before him an Initiating Application filed by the mother on 21 February 2019, seeking both final and interim parenting orders varying the existing orders.
By the time of that hearing the parties had complied with the order of 30 November 2018 providing for them to undertake mediation, and the necessary s60I Certificate had been filed.
I note that during the hearing on 28 February 2019, the father’s counsel apparently advised his Honour that the recovery order was no longer sought by the father, but of course that still left the order for delivery up.
On 27 March 2019 the father filed a Notice of Appeal against the orders made on 28 February 2019, and that appeal is listed to be heard on 19 July 2019.
The father’s explanation for why he did not look to pursue an appeal by seeking an extension of time once the child Y was not returned to him at the end of December 2018, or indeed until he attempted to file a Notice of Appeal on 2 April 2019, is far from convincing. For example, in paragraph 28 of his affidavit filed on 7 May 2019, he says that he did not expect the primary judge to have changed his mind on 28 February 2019 about the conduct of the mother.
However, it is plain that the father made a forensic choice to not pursue an appeal, and instead filed an Amended Application on 12 February 2019, and it was only when he was not successful in that application, that he revisited the question of an appeal against the orders of 30 November 2018.
Whether it was appropriate for the father to await the return of the child at the end of December 2018, rather than instituting an appeal within the 28 day time period after the orders were made, is problematic, but there is no adequate explanation for him not seeking to pursue an appeal by filing an extension of time application once the child was not returned.
The merits of the appeal
Leave to appeal is necessary given the nature of the orders made on 30 November 2018, and as is required, the father has set out in his Draft Notice of Appeal the facts that he says justify leave being granted. However, they are no more than a factual history of the proceedings and do not immediately lend themselves to demonstrating a basis for leave to be granted.
Assuming though that that hurdle can be overcome, the grounds of appeal relied on are as follows:
1.That the learned primary Judge erred at law and in the exercise of his discretion by failing to hear the appellant’s application filed 20 November 2018 on 30 November 2018 in the absence of a certificate pursuant to s.60I of the Family Law Act.
2.That the learned primary Judge erred at law and in the exercise of his discretion by failing to give adequate reasons for the decision dated 30 November 2018,
I consider that Ground 1 is misconceived. I have difficulty in accepting that his Honour committed an error of law. The central issue for his Honour was whether, in the absence of a Certificate under s 60I of the Act, the application was made in circumstances of urgency allowing the application to be heard (s 60I(9)(d)).
His Honour did not consider that that was the case, and thus he was unable to hear the application. Whether his Honour was correct in deciding that there was insufficient urgency is the question, and that is not a question of law.
The second ground of appeal is less straightforward, and the adequacy of the reasons for deciding that there was insufficient urgency is at least arguable.
That circumstance is sometimes enough to allow a proposed appeal to proceed, even where the explanation for the failure to file a Notice of Appeal within time is inadequate.
However, that leads to a consideration of the utility of the appeal. Plainly, if the appeal lacks utility it would not be appropriate to let it proceed, and I find that that is the case here.
If an extension of time is granted, then leave to appeal is granted, and the appeal is successful, the orders sought are that the orders made on 30 November 2018 be set aside and the matter be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Young.
However, the orders made have been executed, and the application that was before his Honour on 30 November 2018 has been overtaken by the Amended Application filed on 12 February 2019. To repeat, it is in precisely the same terms, save and except that it seeks the same orders in relation to X as with Y.
Orders have been made on that application, although they are now the subject of an appeal filed by the father.
In these circumstances there would be no point in setting aside the orders made on 30 November 2018 and in rehearing the application of 20 November 2018, and I cannot conceive that the Full Court would allow that outcome given the later proceedings. It would be a nonsense to have the application of 20 November 2018 reconsidered when effectively the same application has been dealt with on 28 February 2019. It was adjourned to that date, but overtaken by the application filed on 12 February 2019, in almost precisely the same terms.
It was submitted by the father’s counsel that if the appeal is not allowed to proceed, there would be an injustice to the father. It is said that in that event, and if the appeal against the later orders was unsuccessful, the father would be denied the opportunity to assert that his Honour ought to not continue hearing the matter when his Honour has made a number of errors in reaching his decision of 30 November 2018. It was also suggested that there may be “some prejudice” to the father in not allowing this appeal to proceed if the appeal against the later orders is successful, and the matter is not remitted to a different judge.
However, the difficulty with these submissions is that if the appeal is allowed to proceed, and it is successful, then there would appear to be no basis to send the matter to another judge, and thus the outcome that is sought to be achieved will not in fact be achieved.
Further, to suggest that it would make a difference if another judge undertook the rehearing is also not a submission that I can accept. There would then be two different judges dealing with the parenting issues in the one set of proceedings. Again, it is inconceivable that a Full Court would allow that to happen.
In any event, there would appear to be no basis for the rehearing to be before a different judge, and given what has transpired since, it would serve no purpose for the earlier application to be heard again by the same judge.
It is also difficult to understand what orders the father would achieve on a rehearing, that he did not pursue in his Amended Application. Indeed, it would be a curious result if a Full Court hearing an appeal against the orders of 30 November 2018, allowed that situation to develop, given the subsequent proceedings and orders, and the appeal against those orders.
Finally, it was submitted that there was an issue of public interest in allowing the appeal to proceed, in that it would be of assistance to the profession to know as a matter of law when an application can be heard, where there is no Certificate under s 60I. With respect, that is a nonsense too. The section sets out when a Certificate is not required, and in the context of the issue in this case, the question was purely factual, namely, was there urgency or not.
There is plainly no utility in allowing the proposed appeal, and thus the Application in an Appeal seeking an extension of time must be dismissed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Strickland J delivered on 17 June 2019.
Associate:
Date: 17 June 2019
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