Rilak & Tsocas (No 2)
[2017] FamCAFC 126
•12 July 2017
FAMILY COURT OF AUSTRALIA
| RILAK & TSOCAS (NO. 2) | [2017] FamCAFC 126 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Twelve months after orders sought to be appealed were made – No explanation for lengthy delay in first appeal – Inadequate explanation for lengthy delay in second appeal – No merit in the appeals – Substantial injustice to respondent – Applications dismissed. |
| Family Law Act 1975 (Cth) s 117(2A) Family Law Rules 2004 (Cth) |
| D & D (Costs) (No. 2) (2010) FLC 93-435 Gallo v Dawson (1990) 93 ALR 479 |
Rilak & Tsocas(No 8) [2015] FamCA 1235
Rilak & Tsocas [2016] FamCA 546
Rilak & Tsocas(No 2) [2016] FamCA 590
| APPLICANT: | Ms Rilak |
| RESPONDENT: | Mr Tsocas |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| FIRST APPEAL NUMBER: | EA | 68 | of | 2017 |
| SECOND APPEAL NUMBER: | EA | 69 | of | 2017 |
| DATE DELIVERED: | 12 July 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 11 July 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 7 July 2016 22 July 2016 |
| LOWER COURT MNC: | [2016] FamCA 546 [2016] FamCA 590 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Orders
The application for an extension of time in appeal EA 68 of 2017 from the orders made by Stevenson J on 7 July 2016 is dismissed.
The application for an extension of time in appeal EA 69 of 2017 from the orders made by Rees J on 22 July 2016 is dismissed.
The applicant pay the respondent’s costs of and incidental to the applications, such costs to be agreed or assessed and to be paid twenty-eight (28) days after any such assessment or agreement.
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 Rilak & Tsocas (No. 2) 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 Numbers: EA 68 of 2017; EA 69 of 2017
File Number: SYC 2062 of 2010
| Ms Rilak |
Applicant
and
| Mr Tsocas |
Respondent
REASONS FOR JUDGMENT
Ms Rilak (“the applicant”) has filed two applications seeking an extension of time in which to bring appeals from orders made by Stevenson J on 7 July 2016 and orders made by Rees J on 22 July 2016.
On 7 July 2016 Stevenson J dismissed an Application in a Case filed by the applicant on 4 July 2016 in which she sought a review of a Registrar’s decision to reject for filing an application seeking interim parenting orders between herself and Mr Tsocas (“the respondent”) in relation to their daughter, B (“the child”), who was born in 2010.
On 17 March 2016 the applicant filed a contravention application in which she alleged the father had not facilitated supervised contact visits and telephone calls between the mother and the child, and he was therefore in contravention of orders made on 13 November 2015, 20 November 2015 and 4 December 2015. On 22 July 2016 Rees J dismissed this application and further ordered that the parties file submissions in relation to the respondent’s application for costs.
Following the receipt of submissions, on 11 May 2017 Rees J ordered that the applicant pay the respondent’s costs of the contravention application in the sum of $5,000. On 5 June 2017 the applicant filed a Notice of Appeal against this order, being appeal EA 60 of 2017.
The applicant seeks that, if time is extended in which to bring appeals
EA 68 and EA 69 of 2017, they be heard simultaneously with appeal
EA 60 of 2017.
It is important to detail some of the history of the litigation between the applicant and respondent. The parties, having married in 2008, separated in 2010 and, almost immediately, litigation commenced between them in relation to their child who was born earlier in 2010. The final parenting proceedings, which commenced on 27 January 2015, were protracted. In the midst of the proceedings, on 4 June 2015, the applicant brought an appeal against the dismissal of an application that the trial judge recuse himself from further hearing the matter. The appeal was heard shortly after being filed and was dismissed on 24 June 2015. The applicant also appealed against the trial judge’s final orders which were made on 13 November 2015. This appeal was dismissed on 27 February 2017. In the first of these appeals the applicant appeared on her own behalf, while in the second she was represented by counsel on a direct brief.
The decision of Stevenson J: EA 68 of 2017
In June 2016 the applicant attempted to file an application seeking parenting orders. The application and supporting affidavit were rejected for filing by a Registrar and the applicant sought that that decision be reviewed. Stevenson J dismissed the application for review on 7 July 2016. The applicant seeks an extension of time in which to appeal this decision.
In her affidavit filed in support of the application to extend time in which to appeal the order of Stevenson J, the applicant gives no indication of why no appeal was filed within the time specified by the Family Law Rules 2004 (Cth) (“the Rules”). Indeed, the affidavit does no more than give the procedural history of this aspect of the litigation.
The applicant contends that she would suffer significant injustice if she was not permitted to appeal the decision. The injustice of which the applicant speaks is that she has not seen the child for 18 months. That the applicant has not seen the child is not as a result of orders of the court. On 13 November 2015 orders were made that the child live with the respondent and that he have sole parental responsibility for her. Further orders provided for the child to spend supervised time with the applicant (see Rilak & Tsocas(No 8) [2015] FamCA 1235).
That having been said, I have no reason to doubt that the applicant has not seen the child. It seems from the affidavit in support of this application that the applicant attempted to file an application seeking interim orders as a means to enforce the orders that the child spend time with her, but the filing of the application was rejected on the basis that there was no application on foot for final orders and the application could amount to an abuse of process. As I have said, the application for a review of that decision was dismissed by Stevenson J.
As her Honour’s reasons make plain, at the time that the applicant sought to bring further proceedings there was no application for final orders then on foot and the application was incompetent (see Rilak & Tsocas [2016] FamCA 546).
The time in which an appeal could be filed against those orders expired about 11 months ago. Nothing in the affidavit filed in support of the application addresses the delay and the reason for it.
The respondent’s affidavit in opposition to the application contends that to grant the extension of time sought by the applicant would represent a considerable injustice to him in that it would prolong litigation that has been ongoing for some considerable time. In support of that contention he observed that since the making of the final parenting orders in November 2015, the applicant has brought in excess of 14 applications that have required his response and which represent a financial burden on him.
The respondent argued that he was entitled to rely on the orders once the appeal period had passed and move on with his life.
The decision of Rees J: EA 69 of 2017
In March 2016, the applicant commenced contravention proceedings against the respondent asserting that he had failed to comply with the orders made in the final parenting proceedings. These proceedings were heard by Rees J and dismissed. Costs orders against the applicant in these proceedings were made on 11 May 2017 and an appeal against those orders was brought in time. It is to appeal against the order dismissing the contravention application that an extension of time is now sought in EA 69 of 2017.
Equally the affidavit in support of the application to extend time in which to appeal against the order of Rees J is devoid of explanation of the delay. Importantly the applicant offers no explanation why she brought the appeal against the costs order made within time but did not appeal against the order dismissing the contravention application within time.
The applicant contends that, if an extension of time is not granted to her to appeal her Honour’s decision, a significant injustice will accrue because her Honour conducted the proceedings without affording the applicant procedural fairness.
The respondent attached the reasons for the decision of Rees J on the contravention application. It is apparent from those reasons (see Rilak & Tsocas(No 2) [2016] FamCA 590) that the applicant brought the proceedings asserting that the respondent had contravened the orders relating to the time the child spent with the applicant. Her Honour noted that the applicant sought an adjournment of the proceedings because she wished to be represented by counsel who was overseas but who could attend by mobile phone. That request was refused. The hearing of the application continued and the respondent was charged with the asserted contraventions and his pleas were entered. At that time, the respondent’s counsel sought to cross examine the applicant. A short adjournment occurred at the applicant’s request and she left the court, not returning when called by the court officer. The proceedings continued in her absence, her Honour considering each of the alleged contraventions and determining each of them. At the conclusion of that hearing her Honour reserved her decision, and the application was dismissed on 22 July 2016.
Although the applicant’s affidavit provides no explanation for her failure to lodge an appeal against her Honour’s orders within the specified time, in her oral and written submissions the applicant contended that she waited until the costs matter was concluded and then attempted to appeal both the orders of 22 July 2016 and the costs order of 11 May 2017 at the same time as this was when the matter was finalised and she wished to save “time, money and resources”. The appeal against the orders of 22 July 2016 was rejected for filing.
Again, in response to the application, the respondent contends that to permit the extension of time in which to appeal the dismissal of the contravention orders would be a significant injustice to him for the reasons already outlined.
There can be no doubt that the applicant is a seasoned litigant in this court in both first instance and in appeals. Nor can there be any doubt that she was aware of the need for compliance with time limits.
Applicable law
The relevant principles to be applied by a trial judge in deciding whether it is appropriate to extend time for lodging 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 conduct of the parties, 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 the prospects of a successful appeal.
In my view, even absent adequate explanations for the delay, there should be no extension of time granted in either matter. The magnitude of the delay, the apparent lack of merit in either appeal, and the undoubted injustice on the respondent of seeking to revisit decisions some 12 months after their determination in the context of the litigation between these parties requires that both applications be dismissed.
Costs
The respondent sought an order that the applicant pay his costs if her applications were unsuccessful. The applicant opposed that order and argued that she does not work, is in receipt of Centrelink support, and could not afford to pay a costs order.
It is apparent that other costs orders have been made against the applicant in other proceedings and it seems from her submissions that she is presently participating in an assessment of those costs.
The question of costs on appeal is governed by s 117(2A) of the Family Law Act 1975 (Cth). Relevant to this question is that the application has been wholly unsuccessful, and indeed was, in my opinion, doomed to fail. Although it is necessary to consider the financial circumstances of the applicant and I accept that she is in receipt of financial support, lack of funds is no barrier to the making of a costs order where it is otherwise justified (see D & D (Costs) (No. 2) (2010) FLC 93-435). In this instance I am of the view that justice requires such an order to be made. I will therefore order that the applicant pay the respondent’s costs of the applications.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
12 July 2017.
Associate:
Date: 12 July 2017
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