RAZNATOVICH & RAZNATOVICH
[2014] FamCAFC 54
•4 April 2013
FAMILY COURT OF AUSTRALIA
| RAZNATOVICH & RAZNATOVICH | [2014] FamCAFC 54 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – Where the appeal was deemed abandoned after the appellant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – application opposed by the mother – Where draft notice of appeal not prepared for application for reinstatement - Where the appellant failed to explain the delay –- Where the proposed grounds of appeal are unlikely to attract appellate intervention – Where reinstatement of the appeal would be unjust to the respondent – HELD – Application to reinstate dismissed. |
| Family Law Act 1975 (Cth): ss 94(2D) |
Family Law Rules 2004 (Cth): rr 22.13, 22.44
Gallo v Dawson
(1990) 93 ALR 479
[2009] FamCAFC 88
Rand & Rand
| APPELLANT: | Mr Raznatovich |
| RESPONDENT: | Ms Raznatovich |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 584 | of | 2012 |
| APPEAL NUMBER: | EA | 9 | of | 2014 |
| DATE DELIVERED: | 4 April 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 2 April 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 18 December 2013 |
| LOWER COURT MNC: | [2013] FCCA 2189 |
REPRESENTATION
| FOR THE APPELLANT: | In Person with interpreter |
| FOR THE RESPONDENT: | In Person |
Orders
The application in an appeal filed by Mr Raznatovich on 6 March 2014 to reinstate an appeal be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Raznatovich & Raznatovich has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 9 of 2014
File Number: PAC 584 of 2012
| Mr Raznatovich |
Applicant
And
| Ms Raznatovich |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Mr Raznatovich (“the father”) filed on 6 March 2014 wherein he seeks an order that his Notice of Appeal filed on 10 January 2014 be reinstated. The appeal, which is against orders made by Judge Donald on
18 December 2013, was deemed abandoned because the father had failed to file a draft appeal index within the time prescribed in r 22.13 of the Family law Rules 2004 (Cth) (“the Rules”).
The application is opposed by Ms Raznatovich (“the mother”).
Background facts
So as to give this application context, it is necessary to record a few seemingly uncontroversial facts.
The parties commenced cohabitation in 1998 and were married later that year. There are two children of the marriage, A and I. The parties separated in August 2011.
Between 1988 and 1996 the father was employed to work on building sites while from 1998 the wife worked as a cleaner.
In 1996 the father suffered an injury at work and was placed on workers compensation. In 1999 he received an award of approximately $260,821 in lieu of further weekly benefits.
In 2000, the parties obtained employment at a food manufacturer. They were made redundant in July of that year.
After her redundancy, the mother obtained employment at a processing factory where she remained employed until 2002 at which time complications with her pregnancy required that she resign.
The father recommenced work in the building industry in July 2000 but after four weeks he was injured and placed on workers compensation. In an unrelated claim, he received payment in the amount of $18,360 in April 2001 for part hearing loss for an injury sustained on 30 April 1997.
In February 2004 the father recommenced building work. However, his health deteriorated such that in September 2008, he received a total incapacity payment from his superannuation fund of $103,000.
In March 2007, the mother was injured in a motor vehicle accident and was unable to participate in paid employment. In 2010, she received $241,552 in compensation.
In 2010, the mother donated a kidney to the husband. The family was then supported by her carer’s pension until she commenced her own cleaning business in 2011 and then another cleaning business. Due to her injuries, the mother is unable to work for more than 8-14 hours per week. Because of his poor health, the father is unlikely to resume paid employment.
The parties purchased a house in the south of Sydney in 1999 for $242,000 using the father’s compensation award and $55,000 borrowed from a bank. The mother used her damages award to pay out the mortgage, to purchase a motor vehicle, a payment of $20,000 to the father to find alternative accommodation as well as also contributing to improvements to the house and for day to day expenses.
There were allegations of family violence made by the mother against the father. The primary judge found that there was no evidence of threats to or violence being directed against the children; however he accepted the evidence of the mother that the father was violent to her and that this often occurred in the presence of the children. An interim apprehended violence order was made for the protection of the mother against the father on 9 August 2011 and a final order was subsequently made for a period of 12 months. This was followed by a further apprehended violence order which will expire in 2015.
Procedural history
After separation, the mother sought parenting orders in relation to the parties’ two children as well as orders for the adjustment of property.
The matter was heard by Judge Donald in August 2013 and on
18 December 2013 he delivered judgment. At the hearing both parties were represented by counsel and an Independent Children’s Lawyer also appeared. The orders are extensive but in short they provide that the mother have sole parental responsibility for the children (order 1), that the children primarily live with the mother and spend time with the father each alternate Sundays (orders 3-4), that the parties sell their home in the south of Sydney (order 21) with the father receiving 40 per cent of the family assets plus an additional $8,960, while the mother received 60 per cent.
The father filed his Notice of Appeal on 10 January 2014.
Pursuant to r 22.13 of the rules, the father was required to file his draft appeal index 28 days after 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. Accordingly, the father had until 7 February 2014 to file his draft appeal index. The father did not do so and by operation of the rules his appeal is abandoned.
The father filed an Application in an Appeal on 6 March 2014, seeking to reinstate his appeal and other orders. The other orders require the court to exercise its original jurisdiction and are thus incompetent. That aspect of the application must thus be dismissed.
The father filed an affidavit that same day in support of his application. The affidavit is brief and contains little evidence. In summary, the father’s evidence is that he has not seen his children since 19 December 2013 and that since the orders under appeal were made, he has lost his children and the family home. The affidavit also states that he is unwell and on a disability pension.
On the application of the father, on 21 February 2014, Judge Donald stayed the property orders pending determination of the father’s appeal. The mother’s costs of his application have been reserved.
Applicable law
Pursuant to s 94(2D) of the Family Law Act 1975 (Cth) (“the Act”):
(2D) Applications of a procedural nature, including applications:
…
(c) to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
Chapter 22 of the Family Law Rules 2004 (“the rules”) deals with appeals.
Rule 22.13 provides for the appellant to file a draft index to appeal books within 28 days after the filing of the Notice of Appeal, or the date when reasons for judgment are delivered, and if that is not complied with, the appeal is taken to be abandoned.
Rule 22.44 provides that a party may apply to have reinstated an appeal taken to be abandoned under Chapter 22 of the Rules.
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 [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.
It follows that, before the applicant can succeed in this application, there must be material upon which the court can be satisfied that to refuse the application would constitute an injustice. Other factors which are also often referred to include whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, the history of the proceedings, the conduct of the parties to the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application. However, the overarching principle is to ensure that injustice is not visited upon either of the parties.
Discussion
Delay
As was earlier mentioned, the father’s Notice of Appeal was filed within time but his draft appeal index was not. With the draft appeal index due by 7 February 2014, the father waited until 6 March 2014 before he filed his application in an appeal to reinstate his Notice of Appeal. He has yet to prepare a draft index.
The father’s affidavit is devoid of evidence about the steps he has taken to prosecute his appeal. He explained that he did not know how to prepare an appeal, including the necessary supporting documents. Thus, when his application for reinstatement came before Ainslie-Wallace J on 25 March 2014, it was adjourned so that he could obtain legal advice and possibly present a more persuasive application for reinstatement and a draft index.
On the adjourned date, the father explained he had previously obtained legal advice and that his further attempts to do so during the period of the adjournment were unsuccessful. He explained that he has outstanding legal expenses of approximately $120,000 and that he does not want to incur additional legal expenses in relation to the appeal. He spoke about his undoubtedly difficult personal circumstances and how, without legal representation, he thought it would be impossible for him to prepare or present his appeal.
When the father’s presentation of this application is considered, it is easy to accept that he will not prepare and present the documents required to prosecute his appeal.
Not only did the father fail to explain his delay in a manner which might weigh in his favour, in so doing he demonstrated that an order for reinstatement would almost certainly result in his failure to present his case and his appeal being again abandoned or vulnerable to an application for dismissal for want of prosecution.
Merits of the appeal
The father’s grounds of appeal address the challenge he would make in relation to the property orders but are silent in relation to the parenting orders. True it is, that he indicates he wants the children to live two months about with each parent and that both parents have unlimited access to the children, however, he does not identify any grounds of appeal (at all) which, if successful, would enable this court to set aside the orders made by the primary judge.
In submissions made on the application, the father explained that the parenting orders are unfair and have deprived him of his children. However, he did not identify any errors of fact or law which might point to error by the primary judge. Thus, the father failed to demonstrate that his appeal in relation to the parenting orders is based on sufficiently strong grounds that, to deny him the opportunity to pursue it is likely to cause an injustice.
The same conclusion must be reached in relation to the father’s sole challenge to the property settlement orders. Simply put, it is his contention that the resultant orders apply a different percentage split by way of adjustment to the percentage split referred to by the primary judge in closing addresses.
In his oral submissions on his application for reinstatement, the father explained that the family home was purchased from his damages award and that it should be retained for the children. This submission must be contrasted with the order he would seek on appeal, which is an equal division of matrimonial property between the parties.
Prejudice
If the father’s application for reinstatement is refused, the prejudice to him is his inability to prosecute the appeal without a grant of special leave to the High Court of Australia. It is accepted that special leave may be difficult to secure and the probability is that the effect of refusing the father’s application is that he would not be able to pursue his appeal.
On the other hand, the mother explained that she is worried and worn out by the litigation. She has incurred significant legal expenses, including expenses in relation to the father’s application for reinstatement. The position now is that she can no longer afford legal representation and thus, she appeared unrepresented on this application. She is perplexed by the stay order and, in effect, said that she and the children need to be able to get on with life. She appreciates that this involves the sale of the home in which she and the children reside and that for both parties and the children, re-establishing themselves with the modest means at their disposal will be difficult. However, she explained that further litigation, delay and expense will have a devastating effect on her and the children. It follows that aspects of the effect of an order for reinstatement of the appeal cannot be addressed by an order for costs. These are significant matters that weigh against an order for reinstatement.
Other matters
It needs to be recalled that the parties have been in dispute about parenting and property matters since late 2011.
In relation to the parenting proceedings, a family report was prepared. Both girls told the family reporter that they wanted to live with the mother and neither wished to spend time with the father. The child A corroborated the mother’s evidence of family violence by the father to the mother, in relation to which the primary judge found at [60] that A witnessed her father:
·attempting to get a knife to use against the mother;
·hitting the mother in the face;
·inflicting a black eye on the mother; and
·smashing a chair on a table.
These are strong findings in relation to which there is no challenge in the grounds of appeal. Against this background it would be a particularly heavy burden to impose on this particular mother and these children even more litigation.
Conclusion
Having determined that the father has not provided sufficient explanation for the delay and that his proposed grounds of appeal do not provide a basis upon which one might conclude that his appeal is meritorious, he has failed to establish that the refusal of his application for reinstatement of his appeal is likely to cause an injustice. Indeed, the preponderance of evidence demonstrates that reinstatement of the appeal would be unjust to the mother.
It follows that the father’s application for reinstatement will be dismissed.
I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 4 April 2014.
Associate:
Date: 4 April 2014
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