FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ridge & Hurley [2023] FedCFamC1A 157
Appeal from: Ridge & Hurley [2020] FCCA 1097 Appeal number: ADC 255 of 2016 File number: SOA 48 of 2020 Judgment of: CAMPTON J Date of judgment: 19 September 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Applicant seeking leave to file an application in an appeal out of time – Application in an appeal for review of orders refusing reinstatement of a notice of appeal – Where the grounds of appeal are excessively voluminous and repetitive – Where such review application has no real prospects of success – Where no prejudice to applicant is made out – Leave refused – Applicant to pay respondent’s costs Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Babcock & Gulati [2023] FedCFamC1A 113
Bemert & Swallow (2010) FLC 93-44; [2010] FamCAFC 100
Gallo & Dawson (1990) 93 ALR 479; [1990] HCA 30
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520
Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11
Sieger & Department of Communities and Justice [2020] FamCAFC 172
Number of paragraphs: 34 Date of hearing: 14 September 2023 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Ms Hume Solicitors for the Respondent: CG Family Law ORDERS
ADC 255 of 2016
SOA 48 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR RIDGE
Applicant
AND: MS HURLEY
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
19 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 28 August 2023 is dismissed.
2.The applicant pay the respondents costs fixed at $643 within 21 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ridge & Hurley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of an Application in an Appeal filed 28 August 2023, the father seeks:
(a)Leave to file this Application in an Appeal out of time;
(b)
If that leave is granted, to review the orders of an appeal judicial registrar made on
28 July 2023 refusing his Application in an Appeal filed 12 May 2023 to reinstate his Notice of Appeal filed 4 June 2020 from final orders made…
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CaseChat Overview and Summary
In the matter of Ridge & Hurley, the father sought leave to file an appeal in relation to parenting orders made in 2020. The father had previously filed a notice of appeal in May 2020, which was deemed abandoned in December 2020 due to non-compliance with procedural orders. Two years and six months later, the father applied for leave to reinstate his notice of appeal. The mother opposed this application, arguing that the appeal had no real prospects of success and that the father's delay in seeking reinstatement was inadequately explained.
The court was required to determine whether the father's application for leave to file an appeal should be granted. This involved assessing whether the appeal had any real prospects of success, whether the father had provided an adequate explanation for the delay in seeking reinstatement, and whether the mother would suffer prejudice if the appeal was reinstated. The court also considered the father's ongoing litigation and conflict with the mother, which included pending applications to vary the primary parenting orders under challenge.
The court found that there was no ostensible merit in the father's broad complaints and that the father had not discharged the onus of demonstrating the prospects of success and merits of his appeal. The court noted that the father's explanation for the delay in seeking reinstatement was inconsistent with his continued capacity to engage in litigation between the parties. The court further found that the mother would suffer prejudice if the appeal was reinstated, as she would be required to defend an appeal absent apparent merit and simultaneously defend the father's current pending applications to vary the primary orders under challenge. The court concluded that granting leave to review the orders of the appeal judicial registrar would be futile, as the reinstatement application, if granted, would fail due to the lack of merit in the appeal.
The court refused the father's application for leave to file an appeal seeking to reinstate the notice of appeal. The court found that the appeal had no real prospects of success and that the father had not established an adequate explanation for his delay in seeking reinstatement or that he would suffer prejudice if his application was refused. The mother would suffer prejudice if the appeal was reinstated, as she would be required to defend an appeal absent apparent merit and simultaneously defend the father's current pending applications to vary the primary orders under challenge. The father's ongoing litigation and conflict with the mother, including pending applications to vary the primary parenting orders under challenge, further weighed against the relief sought by the father.
The court was required to determine whether the father's application for leave to file an appeal should be granted. This involved assessing whether the appeal had any real prospects of success, whether the father had provided an adequate explanation for the delay in seeking reinstatement, and whether the mother would suffer prejudice if the appeal was reinstated. The court also considered the father's ongoing litigation and conflict with the mother, which included pending applications to vary the primary parenting orders under challenge.
The court found that there was no ostensible merit in the father's broad complaints and that the father had not discharged the onus of demonstrating the prospects of success and merits of his appeal. The court noted that the father's explanation for the delay in seeking reinstatement was inconsistent with his continued capacity to engage in litigation between the parties. The court further found that the mother would suffer prejudice if the appeal was reinstated, as she would be required to defend an appeal absent apparent merit and simultaneously defend the father's current pending applications to vary the primary orders under challenge. The court concluded that granting leave to review the orders of the appeal judicial registrar would be futile, as the reinstatement application, if granted, would fail due to the lack of merit in the appeal.
The court refused the father's application for leave to file an appeal seeking to reinstate the notice of appeal. The court found that the appeal had no real prospects of success and that the father had not established an adequate explanation for his delay in seeking reinstatement or that he would suffer prejudice if his application was refused. The mother would suffer prejudice if the appeal was reinstated, as she would be required to defend an appeal absent apparent merit and simultaneously defend the father's current pending applications to vary the primary orders under challenge. The father's ongoing litigation and conflict with the mother, including pending applications to vary the primary parenting orders under challenge, further weighed against the relief sought by the father.
Orders
Orders of the court
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Background
Background to the litigation
For the following reasons, where the Notice of Appeal filed over three years ago has no real prospects of success and hence it would be futile to rehear the father’s Application in an Appeal seeking to have it reinstated, leave to the father to file his Application in an Appeal seeking to review the orders of an appeal judicial registrar made on 28 July 2023 is refused. BACKGROUND The parties married in 2013 and separated in October 2015. The child was born in 2015 and is currently eight years old. The father commenced proceedings on 28 January 2016. He broadly sought orders for equal shared parental responsibility and an equal shared care arrangement of the child. The mother sought sole parental responsibility of the child, for the child to live with her and for time spent by the child with the father to be supervised. The parties later joined a property dispute to the proceeding. The father’s affidavit in support of his Application in an Appeal records four years of chronic litigation including 38 court hearing events from 2016 until the final parenting orders subject to proposed challenge were made on 7 May 2020. The child was five years of age at that time. The parenting trial was heard over 10 days commencing from 1 May 2019 in four blocks and concluding on 7 April 2020. The evidence focused on issues as to alcohol abuse, mental health challenges, family violence and unrelenting parental conflict. The orders broadly provided for the mother to have sole parental responsibility for the child, for the child to live with the mother and spend six hours during the day on each alternate Sunday with the father, with changeover to occur at a professional change over venue. The Notice of Appeal filed by the father on 4 May 2020 identified 112 grounds of appeal. The father failed to comply with a procedural order requiring him to file and serve an appeal book by 20 November 2020. Confirmation that the Notice of Appeal was deemed abandoned on 1 December 2020 was emailed to the parties on 2 December 2020. Two years and six months later, on 12 May 2023, the father filed an Application in an Appeal seeking that his Notice of Appeal be reinstated. The mother by way of her Response to an Application in an Appeal filed 16 June 2023 opposed the relief of the father. As identified in the father’s affidavit and expanded on by him during the hearing of his application before me, it is uncontroversial that:(a)The father filed an application alleging contravention of the final parenting orders on 16 July 2020. He filed several affidavits in that proceeding. That application was dismissed on 29 October 2020; (b)The father has not spent time with the child since 12 July 2020; (c)The father was sentenced to a term of imprisonment in 2020 upon being convicted of offences in 2011. He remained incarcerated until late 2022 when he achieved home detention; (d)The property proceeding was listed for a number of court events throughout the balance of 2020 and during 2021, including 17 November 2020, 8 June 2021, 5 August 2021, and 6 December 2021. The mother said that on these occasions’ appearances were made on his behalf. The father said they were not. I am unable to make any determination as to this issue. The father agreed that during 2021 he had both filed affidavits in the property case while he was in prison and engaged in a series of formalized negotiations with the mother. The mother said he retained legal representation in the property dispute during 2021. The father denied he did. The property proceeding was finalised on an undefended basis as against the father on 27 January 2022; and(e)The father filed an initiating application on 7 May 2023 seeking to discharge or vary the primary parenting orders under appellate challenge. That proceeding was first listed before the Federal Circuit and Family Court of Australia (Division 2) on 3 July 2023. He also at or about that time filed an Application—Contravention of the 7 May 2020 primary parenting orders, but was uncertain as to the date of filing. It is next listed before a senior judicial registrar on 13 October 2023. He said his objective in relation for each of those applications is to agitate either a variation or discharge of the primary orders under challenge. His Application in an Appeal filed 12 May 2023 to reinstate his Notice of Appeal was filed five days after his initiating application for discharge or variation.LEGAL PRINCIPLESThe application for leave to extend the time to review the order made by the appeal judicial registrar to refuse the application to reinstate the appeal
Evidence
Evidence Before The Court
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Decision
Reasons for decision
There is no ostensible merit in the broad complaints identified by the father. Unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors. A number of authorities emphasise the importance of an appellant properly particularising the asserted error which they contend was made by the primary judge (See Newett and Newett (No 2) (2021) FLC 94–051 at [34]).CONCLUSION The onus is upon the father to demonstrate the prospects of success and merits of his appeal. The onus is not discharged. The onus is upon the father to establish on the evidence an adequate explanation for his delay of two years and six months in seeking to reinstate the appeal. The reason of his incarceration is inconsistent with his continued capacity to engage in continuing litigation between the parties. The mother has relied on the integrity of the final orders made three years ago. The father has not discharged this onus. His explanation for delay is not adequate. The history of the litigation up to the primary orders under challenge and the subsequent continued relentless litigation and conflict between the parents is a relevant factor weighing against the relief sought by the father, especially when it is coupled with the father’s current pending applications to vary the primary parenting orders under challenge. The objective of the father, whether by way of reinstatement of the appeal or by way of his applications to vary, is to seek greater time with the child. The father submits there is no disadvantage to the mother should the appeal be reinstated as she has the benefit of a grant of legal aid. He further submits that the mother suffers less prejudice than him should the appeal be reinstated. I do not accept either submission. The mother will be required to defend an appeal absent apparent merit. The process of that litigation is of itself one that generates anxiety and stress and is compounded by simultaneously defending the father’s current pending two separate avenues of relief to vary the primary orders under challenge. The father did not identify any forensic advantage he would achieve by simultaneously prosecuting an appeal from the primary orders made more than three years ago and his current first instance applications to vary those same orders, especially where he asserts each of the later has substantial merit. If his application in an appeal is dismissed, his other applications remain on foot. Notwithstanding the comparatively modest delay of 10 days in filing application in appeal to review, the failure of the father to establish the merit of his appeal leads to the conclusion that the re-instatement application, if the leave sought was granted, would fail. Hence granting leave to review the orders of the appeal judicial registrar would be futile. Further, the father has not established that there is an adequate explanation for his delay in seeking reinstatement of the appeal or that he will suffer prejudice if his application is refused. I am satisfied that the mother would suffer prejudice if the appeal was reinstated.
Ratio Decidendi
Legal Principle Established
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