ROMBRANDE & ZANDE
[2015] FamCAFC 35
•26 February 2015
FAMILY COURT OF AUSTRALIA
| ROMBRANDE & ZANDE | [2015] FamCAFC 35 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks an extension of time to file an appeal – Where the application is opposed – Where there is an adequate explanation provided by the applicant for failing to file the appeal within time – Where it cannot be said that there is no prospect of success – Where there would be serious prejudice to the applicant if she was not able to pursue an appeal – Where the justice of the case requires the granting of the application – Time to file extended. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – Where the respondent seeks costs – Where the application is opposed – Where there are circumstances justifying an order for costs being made – Costs ordered as sought by the respondent. |
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| APPLICANT: | Ms Rombrande | |||
| RESPONDENT: | Mr Zande |
| FILE NUMBER: | MLC | 8802 | of | 2007 |
| APPEAL NUMBER: | SOA | 82 | of | 2014 |
| DATE DELIVERED: | 26 February 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 26 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 September 2014 |
| LOWER COURT MNC: | [2014] FCCA 2009 |
REPRESENTATION
| COUSNEL FOR THE APPLICANT: | Mr M Wilson |
| SOLICITOR FOR THE APPLICANT: | Susan Snyder |
COUNSEL FOR THE RESPONDENT: | Mr Dickson QC |
| SOLICITOR FOR THE RESPONDENT: | Rockwell Olivier |
Orders
The time for the applicant to file and serve a Notice of Appeal against the orders made by Judge McGuire of the Federal Circuit Court of Australia on
4 September 2014 be extended to the close of business on Thursday 19 March 2015.
The applicant mother pay the costs of the respondent father of and incidental to the application in an appeal filed on 19 November 2014 such costs to be assessed in default of agreement.
Certify this matter fit for senior counsel.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rombrande & Zande 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 MELBOURNE |
Appeal Number: SOA 82 of 2014
File Number: MLC 8802 of 2007
| Ms Rombrande |
Applicant
And
| Mr Zande |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
This is an application in an appeal filed by Ms Rombrande (“the mother”) on 19 November 2014 in which she seeks an extension of time to file a Notice of Appeal against orders made by Judge McGuire of the Federal Circuit Court of Australia on 4 September 2014.
The application is supported by an affidavit of the mother filed on the same day as the application in an appeal. Annexed to that affidavit is a draft Notice of Appeal which, if time is extended, the mother would wish to proceed with.
The application is opposed by Mr Zande (“the father”).
In this same matter there is a separate appeal namely, SOA 80 of 2014. In that appeal a Notice of Appeal was filed by the mother on 13 November 2014 seeking to appeal against orders made by Judge McGuire on 16 October 2014.
There is a link between these two matters and I now turn to explain the relevance of that link.
The orders made by Judge McGuire on 4 September 2014 followed on from an interim hearing conducted by his Honour, at the behest of the mother, seeking to vary orders made by consent between the parties on 7 July 2008. The father’s position was that he sought to maintain those consent orders.
The appeal in SOA 80 of 2014 arose from an application by the father made to his Honour on 12 September 2014 seeking clarification of certain of the orders made in 2008, but also seeking in that context a variation of at least one of those orders.
The mother filed a response wherein she also sought variation of a number of the orders made in 2008. His Honour heard that application and response and by way of interim orders made orders on 16 October 2014, and delivered reasons for judgment.
It is put on behalf of the father that there is no need for, or no utility, in granting the application for an extension of time and allowing the proposed appeal against the orders of 4 September 2014 to proceed, because the matters in issue can be covered, and would be covered, in the appeal that was subsequently lodged against his Honour’s orders of 16 October 2014. If that is correct, then that is obviously a relevant consideration for me in determining the application before the court, given that as is clear from the authorities it is the interests of justice to which I ultimately have to have regard.
I also mention that at the commencement of the hearing today I raised with counsel, but particularly counsel for the mother, an issue which can best be described as the utility of not only the application in an appeal, but also the appeal in SOA 80 of 2014 proceeding. In the briefest of terms the issue was this. As I understand it, and it has been confirmed, the final hearing in relation to this matter is listed for hearing in the Federal Circuit Court of Australia in July 2015, and it seems on or about 13 July 2015. Thus I raised with counsel whether that hearing would be able to be maintained if both the application in an appeal before me today, and the separate appeal are pursued, given that on current indications as to the availability of the Full Court, and when the Full Court might sit in Melbourne, it is, and I cannot be entirely definitive about this, but it is extremely unlikely that the appeal against the orders of 16 October 2014, and if time was extended, the proposed appeal against the orders of
4 September 2014, would be finalised in time to allow that final hearing to take place in July 2015.
Mr Wilson for the mother has quite properly indicated that his client will need to consider that issue in due course, given that what I have said from the bench about that is obviously the first indication of the availability of the Full Court to deal with these matters. As for the father, that issue became the subject of a submission made to me on his behalf, and which I will come to later in these reasons.
In any event, for now, the mother still sought to pursue her application today.
Relevant statute law and rules of court
Section 94AAA of the Act deals with, inter alia, appeals from the Federal Circuit Court of Australia.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
An appeal under subsection (1) or (1A) is to be instituted within
(a)the time prescribed by the standard Rules of Court; or
(b)such further time as is allowed in accordance with the standard Rules of Court.
Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a)for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e)for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12)An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
In this case, as I have said, the orders were made on 4 September 2014, and thus a Notice of Appeal in compliance with the Rules would have needed to have been filed within 28 days after that date, namely by 2 October 2014.
Applicable Principles
The law in relation to applications for extensions of time is well settled. For example, in the High Court decision of GallovDawson (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.
That decision has been followed in a number of Full Court decisions of this court including McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what Gallo & Dawson and the subsequent Full Court cases tell me, is that there are a number of relevant factors which need to be addressed such as, whether there are adequate reasons which explain the failure to comply with the relevant timeframe set out in the Rules for the filing of the Notice of Appeal, whether there is a substantial issue to be raised on appeal, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application. The overarching principle though is to ensure that injustice is not visited upon primarily the applicant. Indeed, as has been put to me by Mr Dickson QC the onus is on the mother to satisfy me that a strict application of the Rules will visit an injustice upon her.
Discussion of the relevant factors
History of the proceedings
Here it is relevant to take into account what happened in the latter half of 2014 in relation to the two applications that were heard by the trial judge, and which then resulted in his Honour’s orders of 4 September 2014 and 16 October 2014.
As Mr Dickson has highlighted, and not challenged by Mr Wilson, the issues raised in both matters are similar, namely whether changes should be made to the July 2008 consent orders in relation to the time the children spend with the father, and the use of drugs by the father and what injunctions and testing should now be put in place. However, as will be seen later in these reasons, it is not as straightforward as that when considering the merits of the proposed appeal against the orders of 4 September 2014.
Mr Dickson also submitted that it is equally relevant to consider the future of these proceedings. In other words, it is relevant to consider the issue that I raised about whether the appeals could be disposed of in time to allow the final hearing to take place in July 2015. I accept that that is relevant, but I do not consider that that should impact adversely on the application that is before the court.
Conduct of the parties
The issue here is the question of failure by the mother to comply with the timeframe in the Rules namely, the 28 day time period that is allowed following an order being made to file a Notice of Appeal. I need to consider the reasons given by the mother for her failure to comply with that timeframe, but also to take into account any delay in filing the application that is now before me. As is apparent the mother had until 2 October 2014 to file a Notice of Appeal, and the application for an extension of time was filed on
19 November 2014.
It is suggested by Mr Wilson on behalf of the mother that time should only run from 16 October 2014, being when his Honour delivered his reasons for judgment, and made the orders in relation to the application and response that I have earlier referred to in these reasons, and which orders are now the subject of the other appeal.
The affidavit of the mother filed on 19 November 2014 in paragraph 4 suggests that the failure to comply with the 28 day time period arose because of advice she was given that, “regardless of the merits of any appeal the matter would be dealt with by way of a final hearing in July 2015 and [she] was best to wait for this final hearing.”
Mr Dickson has specifically referred me to that paragraph and submits, quite correctly, that looking at that paragraph discretely it is not suggested there that a reason for not filing within the 28 days was the proceedings that were commenced on 12 September 2014 by the father.
It is apparent to me that reading the affidavit as a whole there were a number of issues exercising the mind of the mother in relation to whether to appeal or not, and as Mr Wilson has referred me to, in paragraph 8 of her affidavit, the mother says quite specifically that she “changed [her] view about filing a Notice of Appeal in relation to the orders made 4 September 2014” given the events that occurred thereafter. I take that to mean not only the advice she received as to whether she should pursue an appeal, but also the applications filed on
12 September 2014 and which were then finally dealt with by his Honour on
16 October 2014. Thus I do not accept that paragraph 4 prevents the mother from promoting the latter as a reason for her failure to comply with the timeframe.
However, I also do not accept Mr Wilson’s submission that time should be seen as running from 16 October 2014. It is plain that there are two periods to consider. One is the 28 day period, and I take it that the reasons for not complying with that timeframe are as set out in paragraphs 4 and 8 of the mother’s affidavit filed in support of her application in an appeal. Then from
2 October 2014 to 19 November 2014 when the application before the court today was in fact filed, I take the reasons for not filing until 19 November 2014 to again be a combination of events. As at 2 October 2014 the application filed on 12 September 2014 had not yet been heard, it was listed for hearing on
13 October 2014, and judgment was only delivered on 16 October 2014.
Thus, I accept that there is an adequate explanation for the mother’s failure to file her Notice of Appeal, and for the delay at least until 16 October 2014 in terms of filing the application that is before me today.
In relation to the period from 16 October 2014 to 19 November 2014, the explanation seems to be that the time and thoughts of the mother were taken up with the question of appealing against the orders made on 16 October 2014, with the Notice of Appeal in that regard being filed on 13 November 2014. Importantly, in terms of doing something about the orders of 4 September 2014, it seems that the Notice of Appeal filed on 13 November 2014 sought to appeal not only against the orders of 16 October 2014, but also those of
4 September 2014. The appeal registrar informed the mother’s solicitors that that was not possible, and as a result that Notice of Appeal was only accepted in relation to the orders of 16 October 2014. The mother then had to consider what she would do about the orders of 4 September 2014, and it was only a few days later namely, on 19 November 2014, when she filed this application.
Thus, there is also an adequate explanation for why it took until 19 November 2014 for the application that is before the court today to be filed.
The nature of the litigation
It is plain that this is an interim parenting matter that brings into play the issue that I raised at the commencement of the hearing today as to the prospect of an appeal, or appeals, being heard and determined in time to enable the final hearing to take place. The father relies on that to suggest that this court should not entertain the application for an extension of time. For my part though, and to repeat, I do not consider that that should impact adversely on the application that is before the court.
The merits of the appeal
It is not possible for me to be definitive about the prospects of success of an appeal at this stage of the matter and given the documents that are before me. As is obvious I have limited documentation namely, the reasons for judgment of the trial judge and the proposed Notice of Appeal sought to be pursued by the mother. I do not have the full range of documentation that would be before the Full Court when and if it heard the appeal, and thus my task is to do the best I can on the documents that I have, and to assess from those documents the merits of the appeal.
As I have said in a number of cases, the question for this court is whether it is apparent that there is an arguable case on appeal. Indeed, as I have termed it in the past, even if there is the remotest chance of success, then, in those circumstances, that is enough.
The proposed Notice of Appeal here effectively specifies two grounds of appeal. The first, as has been described in submissions today, is a generic ground of appeal challenging the approach of the trial judge in assessing the best interests of the children. The second relates specifically to the issue of drug use by the father.
It seems to be common ground, but even if it is not, given the subject of the orders made by the trial judge on 16 October 2014, and the mother’s appeal against those orders, the issue of what orders should be made in relation to the father’s alleged drug use will be addressed in appeal number SOA 80 of 2014.
Thus, the second ground, I assume, would not be proceeded with, given that if that were the only ground of appeal I would not be extending the time to file a Notice of Appeal. That leaves the first ground, which as I say, is a generic ground of appeal challenging the trial judge’s approach in assessing best interests. I have read his Honour’s reasons for judgment of 4 September 2014, and I am not in a position to say that there is no chance of success with that ground of appeal. Obviously it will be refined if the appeal is allowed to proceed, and in particular in any summary of argument that is filed, but to repeat, I am not in a position to say that there is no chance of success.
That is not to be taken by the mother though as any indication that the appeal if it is allowed to proceed will succeed; it is merely my assessment on the limited documentation that I have before me.
The consequences of granting or refusing the application
One issue I need to consider, and whether it is considered under this heading or generally under the topic of where the interests of justice lie does not matter, is the submission put on behalf of the father that the issues that are sought to be agitated in the proposed appeal are, in fact, matters that will be able to be addressed in appeal number SOA 80 of 2014, thus rendering this application, and more particularly any appeal if this application is successful, of no utility.
In that regard Mr Wilson puts to me that the two sets of proceedings are “inextricably” linked and, “if time is not extended it is likely to be said in appeal SOA 80 of 2014 that if there were errors made in affirming the orders of 7 July 2008 those errors were made in the decision of 4 September 2014, not the decision of 16 October 2014, but that there is no extant appeal against the orders made 4 September 2014”.
Putting it in my terminology, what Mr Wilson has submitted to me is that the issues that would be agitated in respect of both appeals are interwoven, but it is not the case that the proposed appeal against the orders of 4 September 2014 will be able to be explored in appeal number SOA 80 of 2014. That is because the proposed challenge to the orders of 4 September 2014, as I have indicated from the proposed grounds of appeal, challenge the approach of the trial judge in addressing the best interests of the children in reaching the orders that
his Honour made. At [33] of his Honour’s reasons of 16 October 2014,
his Honour says:
As recently as 4 September 2014 I determined that the children’s best interests, after consideration of the relevant section 60CC factors and the parties’ proposals, was served by them living with their father in accordance with the orders of July 2008. …
And at [34] his Honour says this:
There is no material in the mother’s affidavit which convinces me that such a reduction in time is appropriate or in the children’s best interests. I repeat that my determination in this regard was made as recently as
4 September 2014.
Thus, what Mr Wilson says is that if the mother is not permitted to pursue an appeal against the orders of 4 September 2014, it would be open for the father to submit that there is no challenge then to the approach taken by his Honour in making those orders, and that the issues to be considered by the Full Court should be confined to the approach that his Honour adopted in his reasons for judgment of 16 October 2014.
I consider that there is considerable force in that argument and thus I find that there is utility in the proposed appeal against the orders of 4 September 2014.
Turning to the question of prejudice. As Mr Wilson has submitted and
Mr Dickson has not necessarily challenged, given that the father will have to deal with the appeal against the orders of 16 October 2014, that dramatically reduces any prejudice to him in terms of costs for example, if the appeal against the orders of 4 September 2014 is able to be pursued by the mother. On the other hand there is an obvious prejudice to the mother if the application is refused in that she would not be able to pursue her challenge to the orders made on 4 September 2014.
Of course there is no appeal to the Full Court from a decision made by this court, and this adds to the prejudice to the mother if her application is dismissed. The mother would be able to make an application for special leave to appeal to the High Court of Australia in those circumstances, but that may not be a course that is warranted in this case.
Conclusion
Thus, to repeat, the authorities recognise that this court’s consideration of the relevant factors here informs the court in determining the fundamental issue, namely, where the justice of the case lies.
Here, in my view, there is an adequate explanation for the failure to comply with the Rules and for the period of time that it took to file the application that is before the court today. In terms of the merits of the appeal, to repeat, I am not in a position to say that there is no prospect of success, and in my view there would be serious prejudice to the mother if she was not able to pursue an appeal against the orders of 4 September 2014.
Thus, the interests of justice require that the application be granted.
Costs
I now have an application for costs before me on behalf of the father.
In opposition to that application Mr Wilson first sought that any application for costs be reserved and be treated as costs in the appeal. However, in my view this is the time to deal with any costs application in relation to this matter; I am seized of it, and I propose to determine the application. Mr Wilson then opposed the order for costs.
In my view there are circumstances here that justify an order for costs. This is an application by the mother which became necessary because of her failure to comply with the time provided in the Rules for the filing of a Notice of Appeal. She has provided explanations for that which I have accepted, but that said, this is an indulgence that is being granted to the mother by this court to enable her to proceed, when the Rules have not been complied with.
The application is also opposed on the basis that it should have been realised, or appreciated, that the application had merit. In my view the opposition put by the father was appropriate and reasonable in the circumstances, and also particularly in terms of the issues that have been raised as to the future progress of this matter, and whether in fact today has been a waste of time.
Thus I propose to make the order as sought by the father.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 26 February 2015.
Associate:
Date: 11 March 2015
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