Russell and Withers
[2018] FamCAFC 125
•6 July 2018
FAMILY COURT OF AUSTRALIA
| RUSSELL & WITHERS | [2018] FamCAFC 125 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the Appeal Registrar dismissed the mother’s application for an extension of time to file an electronic transcript within time as required – Where the dismissal of the application was due to non-attendance at the hearing of the application by the mother’s solicitor – Where the mother’s solicitor’s non-attendance was not the fault of the mother – Where the delay was minimal – Appeal reinstated. |
| Family Law Rules 2004 (Cth) r 22.13, 22.40 |
| Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 |
| APPLICANT: | Ms Russell |
| RESPONDENT: | Mr Withers |
| FILE NUMBER: | CAC | 223 | of | 2015 |
| APPEAL NUMBER: | EA | 22 | of | 2018 |
| DATE DELIVERED: | 6 July 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 6 July 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 November 2017 |
| LOWER COURT MNC: | [2017] FamCA 1145 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| THE RESPONDENT: | In person |
Orders
That the Notice of Appeal filed on 21 December 2017 be reinstated.
That the time for the appellant to file the electronic transcript be extended until 6 July 2018.
There be no orders as to costs.
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 Russell & Withers 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 22 of 2018
File Number: CAC 223 of 2015
| Ms Russell |
Applicant
And
| Mr Withers |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 14 June 2018, Ms Russell (“the mother”) seeks that her appeal, which is deemed abandoned pursuant to Rule 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”), be reinstated. It was deemed abandoned because the mother failed to file the trial transcript as ordered.
Mr Withers (“the father”), is the respondent to the appeal and the application for reinstatement. It is his position, as he set out in his Response to an Application in an Appeal and Affidavit filed on 2 July 2018 that the application should be dismissed. In other words, that the appeal not be reinstated.
The orders under appeal are Orders 1 and 2 made by Austin J on 23 November 2017 and relate to two contravention applications bought by the father against the mother (“the contravention orders”). The contravention applications alleged that the mother breached orders made on 20 September 2016 (“the September orders”). Having so found that the mother contravened Order 36 of the September orders without reasonable excuse, the mother was required to enter into a six-month good behaviour bond within 28 days (Order 1). Further, the primary judge discharged Order 14 of the September orders and instead ordered that the father may request information about the mother’s movements into and out of Australia, and that such information shall be provided to him no later than 14 days prior to her arrival into Australia (Order 2).
Relevant background to the application for reinstatement
So as to give this application context, it is necessary to refer to events following the mother’s filing of her Notice of Appeal.
On 21 December 2017 the mother, who was then self-represented, filed a Notice of Appeal against the contravention orders. The mother subsequently retained solicitors, and on 9 April 2018 the mother’s solicitor filed a Notice of Address for Service. The mother lives in the United States and has communicated primarily with her solicitor via email.
On 10 April 2018 the Appeals Registrar conducted a directions hearing, which I note was conducted via telephone; this being the normal order of business in appeals, not exclusive but quite common place, and is a matter which assumes some significance in this case.
The Registrar made procedural orders to the effect that the mother was to file and serve the appeal books and electronic transcript by 22 May 2018.
In his affidavit filed 14 June 2018, the solicitor for the mother deposes that on 16 April 2018 he forwarded a copy of the procedural orders to the mother seeking further instructions and requesting that she inform him if she had not already applied for the transcript of the substantive proceedings. The point being, had she not done so he could apply for the transcript on her behalf.
On 13 May 2018, having not received a reply, the mother’s solicitor sent the mother a further email seeking her instructions in relation to the transcript.
On 22 May 2018, the day in which the appeal books and electronic transcript were due to be filed, the mother’s solicitor received an email from the mother in which she indicated that she had not received the email of 16 April 2018 and that she was not aware she was required to order the transcript and accordingly had not done so.
That same day the mother’s solicitors emailed the father, who is self-represented, requesting his consent to an extension of time to file and serve the appeal books and electronic transcript. The request was denied. As such, the mother’s solicitors filed the Appeal Books without the electronic transcript; this being a failure to comply with Order 4.2 of the procedural orders. At the same time, the mother’s solicitors filed an Application in an Appeal and supporting affidavit seeking an extension of time to file the transcript. This was the appropriate step to take, but as events transpired it was not sufficient.
The application was listed for 6 June 2018 before the Appeals Registrar. The application was listed to be conducted via telephone. I note that the Commonwealth Courts Portal for the proceedings listed that the hearing was to be conducted on level 8 at the Appeals Registry. This reflects the fact that the Commonwealth Court Portal does not yet provide the complete suite of listing options to appeals. In any event, aware of this fact, an email was sent from the Registry to the mother’s solicitor and the father advising that the hearing of the application for an extension of time to file the transcript was to be conducted by telephone. Unfortunately, the email address used for that communication was a generic email routinely used by the Court in its communications with the mother’s solicitor’s firm, however this generic email was not the email address listed on the Notice of Address for Service, which seems to be one particular to the solicitor.
Thus, unaware that the proceeding would take place by telephone, the mother’s solicitor attended the Registry at 10.00 am on 6 June 2018 for the purposes of attending the hearing. There being no attendance, it would seem that the Appeals Registry contacted the mother’s solicitor’s firm, and at 10.15 am the solicitor received a telephone call from his assistant, enquiring as to whether he would be attending via telephone. When the solicitor dialled in to the conference the hearing had ended.
Following what the Registrar took to be the solicitor’s non-attendance, orders were made dismissing the mother’s application seeking an extension of time to file the transcript. It was noted that the electronic transcript had been filed on 28 May 2018. The effect of the dismissal of the mother’s application for an extension of time was that her appeal was deemed abandoned, pursuant to r 22.21 of the Rules. Hence, today’s application for reinstatement.
Applicable law
The principles relating to applications to reinstate an appeal are set out in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 (“Jackamarra”). In particular, Gummow and Hayne JJ, at [33]:
… [W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Delay
Pursuant to the procedural orders made by the Appeals Registrar on 10 April 2018, the mother was required to file the electronic transcript by 22 May 2018. As I said, the mother failed to do so, and the electronic transcript was received by the Appeal Registry on 28 May 2018, some six days after the procedural orders allowed.
The first question to be determined is whether the mother has provided an adequate explanation for her failure to comply with the timeframe for filing the electronic transcript. The explanation is provided in the affidavit of the mother’s solicitor, filed 14 June 2018. In short, the mother’s solicitor says that he was unaware that he was required to attend the procedural hearing of 6 June 2018 via telephone, and attended the Registry instead. By the time he was made aware of the need to attend via telephone and dialled in, the hearing had concluded and the application dismissed.
It should be recalled however, that the need for the application to extend time in the first instance was due to not having the electronic transcript available and filed as ordered. The mother’s solicitor deposes that the mother did not respond to his emails seeking instructions about the transcript in a timely manner so that he could order it and comply with the procedural orders. It should also be said however, that the solicitor was aware that the date for the filing of the electronic transcript was fast approaching, yet only two emails were sent, one on 16 April and another on 13 May 2018, with the first response received by the mother on 22 May 2018. The solicitor does not depose to any further contact with the mother to meet the deadlines set by the procedural hearing, which given the nature of the action seems a somewhat relaxed approach to the obligations imposed by the procedural orders.
Further, the mother’s contention in her email to her solicitor that she was unaware of the need to provide a transcript does not withstand scrutiny. Reference need only be made to paragraph 11 of the father’s affidavit to point out that the mother has previously engaged in appeals as an appellant and her notices of appeal have similarly been abandoned for failure to comply with directions.
On 12 March 2018 the mother, who has legal qualifications appeared on her own behalf and filed a draft index in this appeal. Item 5 of the draft index is the transcript of proceedings before the primary judge. It is clear that the mother was aware, from at least 12 March 2018 when she filed the index, that she would be required to provide a transcript.
These are matters that would have been considered had the mother’s solicitor attended the hearing on 6 June 2018. Consistent with Jackamarra, one would have expected that an extension of time would have been given on that occasion. However, it is accept that the mother’s solicitor’s failure to attend the telephone hearing of 6 June 2018 was not the fault of the mother, and in fairness, not entirely the fault of the mother’s solicitors. It is clear that communication from the Court was not what it should have been. Thus, while the explanation for the delay in filing the electronic transcript may not be fully adequate, the failure to appear on the application is satisfactorily explained. It is also important that the electronic transcript has been filed and this application was brought as quickly as it has been.
Merits of the appeal
The father contends that the appeal is frivolous, and does not raise a substantial issue. He points out in his affidavit and oral addresses this morning the continuance of the appeal comes at an emotional and practical cost to him. He has sole parental responsibility for the parties’ children, and cares for them while working full time and without financial support from the mother. It is accepted that ongoing litigation between parents in these circumstances does occasion prejudice to a parent in the position of this father.
It is also accepted, and frankly acknowledged by the mother’s solicitor, that the grounds of appeal contained in the notice of appeal are in many respects inadequate, indeed one might contemplate that it would be hard to resist an argument that Grounds 1.1 – 1.6 are no grounds at all. Ground 1.7 however, does raise a proper issue of fact which, if established, could amount to an error of law. But more tellingly, provision is made in the Rules for a notice of appeal to be amended without a grant of leave up until time of filing the summary of argument. The mother’s solicitor has informed the court that this will occur and senior counsel’s advice has been sought. Suffice to say, at this point the mother has at least presented a ground of appeal which may raise a matter of substance.
Prejudice
I have already commented on prejudice to the father. But prejudice sits both ways. Here, the prejudice to the mother would be in denying her the opportunity to pursue her appeal, which was filed within time, particularly in circumstances where the failure to attend the procedural hearing on the application for an extension of time was not her fault. To visit that default on the mother would, necessarily, be of real prejudice to her.
It is accepted that if the appeal is reinstated, which I am satisfied it should be, the father will need to deal with the stress associated with this further litigation, which, as a self-represented litigant, is not insignificant. It is understood though, that litigation nonetheless continues at trial level between the parties, which somewhat moderates the significance that I would otherwise have attached to the fact that the effect of reinstating the appeal is that there is ongoing litigation between these parties.
On balance, the factors which weigh in favour of reinstatement outweigh those that weigh against it, and an order for reinstatement will be made.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 6 July 2018.
Associate:
Date: 6 July 2018
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