PHILLIPS & HANSFORD
[2015] FamCAFC 46
•27 March 2015
FAMILY COURT OF AUSTRALIA
| PHILLIPS & HANSFORD | [2015] FamCAFC 46 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where the father filed a Notice of Appeal one day late – Where there is a reasonable explanation for the delay – Where there is sufficient merit in the appeal that granting an extension of time would not be futile – Whether the mother would be prejudiced if leave is granted – Where the father would suffer an injustice if leave is not granted – Application allowed – Father to pay the mother’s costs of the application. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Phillips |
| RESPONDENT: | Ms Hansford |
| INDEPENDENT CHILDREN’S LAWYER: | James Haddock |
| FILE NUMBER: | ADC | 4008 | of | 2013 |
| APPEAL NUMBER: | EA | 26 | of | 2015 |
| DATE DELIVERED: | 27 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 24 March 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 January 2015 |
| LOWER COURT MNC: | [2015] FCCA 117 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Picker |
| SOLICITOR FOR THE APPLICANT: | Nicholl & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | DDCS Lawyers |
| SOLICITOR FOR THE ICL: | Mr James Haddock Legal Aid ACT attending by telephone |
Orders
The application in an appeal for an extension of time to file a Notice of Appeal against the orders of Judge Hughes made on 21 January 2015 is granted.
The draft Notice of Appeal filed with the application in an appeal will be deemed to be the Notice of Appeal and is to be filed by no later than 4.00 pm on 31 March 2015.
The father pay the mother’s costs of and incidental to the application in an appeal in the sum of $2,000.
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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 26 of 2015
File Number: ADC 4008 of 2013
| Mr Phillips |
Applicant
and
| Ms Hansford |
Respondent
and
| James Haddock |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Mr Phillips (“the father”), by application in an appeal filed on 2 March 2015, seeks an extension of time in which to file an appeal against parenting and property orders made by Judge Hughes on 21 January 2015.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals and Rule 22.03 prescribes the time within which an appeal is to be filed, namely 28 days from the making of the orders sought to be impugned.
The time prescribed by Rule 22.03 for lodging an appeal against her Honour’s orders expired on 18 February 2015; however the father sought to file his appeal on the 19 February 2015. It is thus out of time by one day.
The extension of time is opposed by the mother.
The relevant principles to be applied in deciding whether it is appropriate to extend time to lodge an appeal are set out in Gallo v Dawson (1990)
93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether 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 parties of the grant or refusal of the leave.
The exercise of discretion also involves an assessment of prospects of a successful appeal.
Her Honour’s orders concern two children, X (born 2004) and Y (born 2007), who are the children of the father’s relationship with Ms Hansford (“the mother”).
The effect of her Honour’s orders was that the parties would have equal shared parental responsibility for the children, that the mother could relocate with the children to Adelaide and that the children would spend time with the father. The property orders required the sale of a property in South Australia and, after payment of the mortgage debt secured on the property and other costs and expenses, a division of the proceeds as to 65 per cent to the mother.
Her Honour also made a splitting order relating to the father’s superannuation.The grounds of challenge to her Honour’s orders as set out in the draft notice of appeal concern the exercise of her Honour’s discretion generally and in particular by permitting the children to move to Adelaide and by making an order for equal shared parental responsibility in circumstances where it is asserted that the mother was not able to co-operate with the father in relation to matters concerning the children. A further ground appears to contend that her Honour failed to give reasons for determining that it was in the children’s interests to spend equal time with the parents but only if the parents both lived in South Australia. The grounds also challenge her Honour’s property settlement orders.
Delay
The delay in filing the appeal was one day. Ordinarily one would expect in those circumstances that the mother would not oppose the granting of an extension of time, however, that is not the case here.
The father’s solicitor filed an affidavit in the application in which she explained that, while she had the carriage of the father’s matter, she worked part time. On 28 January 2015 the father instructed her that attempts to communicate with the mother pursuant to her Honour’s orders were proving difficult. It is unnecessary to go into the detail contained within the solicitor’s affidavit, suffice it to say that on 10 February 2015, the father instructed her to obtain counsel’s opinion on the prospects of appeal. The father’s solicitor contacted another solicitor in the office and instructed her to obtain that opinion. It proved difficult to contact counsel.
The solicitor went on leave on 12 February 2015, leaving instructions to another solicitor in her office to continue attempting to contact counsel.
The solicitor said that counsel had a conference with the father on
17 February 2015 and the father gave instructions to file the appeal. It seems that counsel prepared and filed the notice of appeal on 19 February 2015. On 20 February 2015, the solicitor was advised that the appeal had been filed out of time.I regard the father’s solicitor as having given a reasonable explanation for the delay in filing the notice of appeal.
Merits of the appeal
As part of a consideration of the application, it is necessary to consider whether the making of the order sought would 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 it must be clearly shown that the appeal would fail before an applicant is denied the right to have his or her appeal heard.
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.
The grounds challenge her Honour’s exercise of discretion in relation to the parenting grounds and assert errors of fact and discretion in relation to the property orders. The bar to appellate intervention where errors in the exercise of discretion is asserted is set high. However, in determining this issue, namely the merits of the father’s proposed appeal, I am satisfied that there is sufficient merit such that to grant an extension of time would not be futile.
Affidavit of the mother
In support of her opposition to the father’s application, the mother relied on a
56 page affidavit. Much of that affidavit was irrelevant to the issue to be determined in this application. Counsel for the mother indicated that the affidavit was prepared to respond to the father’s application for a stay of
her Honour’s orders.Nevertheless, the document raises some relevant issues.
It was contended for the mother that the father’s conduct was a matter relevant to the consideration of the application. It was said that at no point in the appeal period did the father indicate that he intended to appeal. That is the case, however it is also entirely clear that almost from the moment of her Honour making the orders, the parties through their solicitors were corresponding about the difficulty in complying with the orders. While I accept that the father did not indicate that he proposed to appeal, the fact that the orders were the source of considerable and apparent intractable difficulty would have been entirely apparent to those advising the mother.
Further, it was argued that the mother had acted to her prejudice in reliance on the orders and assuming their finality. It was said that she had engaged a psychiatrist in Adelaide and had made arrangements to see that psychiatrist. It was, however, conceded that the mother had been a patient of that psychiatrist for some time and the appointment made was part of her usual contact with the psychiatrist. It was also observed that she had told the children that they would be moving back to Adelaide.
Further it was argued that she had booked removalists to move the family’s property to Adelaide. The mother said that she booked the removalists on
23 February 2015 and I observe that by letter to her solicitors of the same date, the father’s solicitor sought the mother’s consent to the extension of time in which to file the appeal.None of these matters, while no doubt important to the mother, of themselves would lead to the refusal to extend time.
There is undoubtedly prejudice to the mother if the extension of time be granted in that an appeal will prolong the litigation with the father and involve further costs and expense. Further, there is no doubt about the anxiety and distress associated with the very important issues relating to the parties’ children being, at least until the appeal is determined, unresolved.
These proceedings involve two quite young children and how their parents exercise their duties and responsibilities in relation to them and the time that the children spend with each party. Obviously they are important matters and, in my view, require careful consideration before leave of the type sought would be refused.
I am satisfied, having accepted the explanation for the delay proffered by the father’s solicitor, that there is nothing in his conduct in prosecuting his appeal which would otherwise call for the application to be dismissed. Accepting that there is prejudice to the mother in extending time, I am nonetheless of the view that leave should be granted and the time in which to lodge the appeal be extended.
I am thus satisfied that if leave be not granted, strict compliance with the relevant rules would cause an injustice to the father and I will grant the application.
Costs
The mother sought an order for costs of meeting the application. Although the father was successful in his application, his default caused the appearance and it is appropriate that he pay the mother’s costs. In the discussion with counsel for the mother on this point, it was made clear that no costs involved in the preparation of the mother’s affidavit should be included in any assessment of costs because in my view, the matters sought to be advanced in opposition to the application could have been encompassed in a few paragraphs, not in
56 pages.Thus, counsel estimated the costs associated with the hearing at $2,000 and an order for costs in that sum will be made.
I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
27 March 2015.
Associate:
Date: 27 March 2015.
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