RYLAND & RYLAND
[2017] FamCAFC 242
•10 November 2017
FAMILY COURT OF AUSTRALIA
| RYLAND & RYLAND | [2017] FamCAFC 242 |
| FAMILY LAW – APPEAL – EXTENSION OF TIME – Where there is nothing in the proposed grounds of appeal which can conceivably be described as alleging error by the trial judge – Where the appeal has no chance of success – Where there is no utility in extending the time for the filing of a Notice of Appeal – Where the interests of justice require that the application be dismissed – Application dismissed. FAMILY LAW – COSTS – Where the respondent seeks his costs – Where there are circumstances which justify an order for costs – Where impecuniosity is not a bar to an order for costs being made – Costs ordered in favour of the respondent. |
| Family Law Act 1975 (Cth) – ss 96AA and 117 Family Law Rules 2004 (Cth) |
| D & D (Costs) (No 2) (2010) FLC 93-435 |
| APPLICANT: | Ms Ryland |
| RESPONDENT: | Mr Ryland | ||||
FILE NUMBER: | ADC | 3889 | of | 2016 | |
| APPEAL NUMBER: | SOA | 72 | of | 2017 |
| DATE DELIVERED: | 10 November 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 10 November 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 June 2017 |
| LOWER COURT MNC: | [2017] FamCA 754 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Reynolds |
| SOLICITOR FOR THE RESPONDENT: | Southern Vales Legal |
Orders
The application in an appeal filed on 20 September 2017 be dismissed.
The applicant mother pay the respondent father’s costs fixed in the sum of ONE THOUSAND SIX HUNDRED AND FIFTY DOLLARS [$1,650] inclusive of GST.
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 Ryland & Ryland 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).
|
Appeal Number: SOA 72 of 2017
File Number: ADC 3889 of 2016
| Ms Ryland |
Applicant
And
| Mr Ryland |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before the court is an application in an appeal filed by Ms Ryland (“the mother”) on 20 September 2017. In that application, the mother seeks an order that she have, in effect, an extension of time to file a Notice of Appeal against orders made by Berman J on 2 June 2017. The mother, as she is obliged to do, has also filed an affidavit in support of that application, and she has provided the court with a Draft Notice of Appeal, being the Notice of Appeal she would want to proceed on in the event that she is granted an extension of time.
The application is opposed by Mr Ryland (“the father”).
The need for the mother to obtain an extension of time arises because the Family Law Rules (2004) (Cth) (“the Rules”) provide that a Notice of Appeal must be filed within 28 days after the order sought to be appealed against is made.
As I have indicated, the relevant orders are those made by Berman J on 2 June 2017 and, as is apparent, the mother failed to file a Notice of Appeal within the 28 day time period. She has now filed an application in an appeal seeking an extension of time to appeal those orders.
The principles applicable to applications such as this are well known and well established and they arise, helpfully, from a judgment delivered by McHugh J in the High Court decision of Gallo v Dawson (1990) 93 ALR 479. I refer, in particular, to what his Honour said at 480 as follows:
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.
In summary then, the issue is whether in the interests of justice in the particular case, strict compliance with the relevant Rules should be required, or put another way, whether albeit there has not been strict compliance with those Rules, the interests of justice should prevail and the proceedings be permitted to continue. In determining that issue there are a number of factors that are relevant. Primary amongst those factors are first, whether there is an adequate explanation for the failure to comply with the Rules and file a Notice of Appeal within time, secondly, the merits of the appeal and, thirdly, what the prejudice is to the parties depending on the result of the application.
I now turn to address those three factors.
I do not propose to dwell on the first factor because, although the father’s counsel has submitted to this Court that there is no satisfactory explanation for the delay, I propose to deal with this matter primarily by addressing the second factor, namely, the merits of the appeal. That is not to say that I consider there has been an adequate explanation, but it seems to me that the issue of the merits of the appeal is a more important factor because, even if there had been a satisfactory explanation for the failure to comply with the Rules, if the appeal which would then follow has no chance of success, there would be absolutely no point in extending the time.
The orders made by Berman J on 2 June 2017 are as follows:
(1)That the operation of paragraphs 2, 3, 4 and 5 of the orders made on 14 November 2016 be suspended.
(2)Until further order B born in 2006 and C born in 2004 (“the children”) do live with the father.
(3)That until further order Ms Ryland born in 1965 (“the mother”) and Mr Ryland born in 1964 (“the father”) and their servants and agents are hereby restrained by injunction from removing or attempting to remove or causing or permitting removal of the said children from the Commonwealth of Australia.
(4)That the Australian Federal Police give effect to this order by placing the names of the children … on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders its removal.
(5)That the mother’s interest in the former matrimonial home situated … in the State of South Australia, Certificate of Title reference Volume …. Folio … be transferred to the father.
(6)Pursuant to section 106A of the Family Law Act a Registrar of this Court is appointed to execute any deed or instrument in the name of Ms Ryland and to do all acts and things necessary to give validity and operation to the deed or instrument but in particular all that is required for the mother’s interest in the … property to be transferred to the father.
…
On 13 December 2016 Judge Cole, when this matter was before the Federal Circuit Court, made orders providing for the father to spend time with the children from 15 December 2016 to 22 December 2016, for the mother to have time with the children from 22 December 2016 until 14 January 2017, and then for the father to spend time with the children from 14 January 2017 until 28 January 2017, noting that the father would be travelling with the children to Western Australia.
It was noted that the mother was at liberty to take the children overseas between 22 December 2016 and 13 January 2017, and it was further noted that, as and by way of security for the children’s return, and, plainly, also for the purposes of providing funds to undertake court proceedings overseas, if necessary, the mother had provided to the father’s solicitors a signed transfer of her interest in the former matrimonial home.
What then subsequently happened, as recorded in his Honour’s judgment, is that the mother travelled overseas with the two children in December 2016, and then returned from overseas to Australia in January 2017. However, instead of then complying with the further orders made by his Honour, namely, and in particular, that the father then spend time with the children from 14 January until 28 January 2017, the mother remained in Australia until 17 January 2017, and then returned overseas with the children.
Thereafter, on 3 May 2017 the mother filed a Notice of Discontinuance of the proceedings in Australia. As his Honour noted in [17], the mother considered that by discontinuing her Initiating Application, that in some way would bring the proceedings in Australia to an end, and enable the mother to bring proceedings in an overseas court, presumably in relation to parenting orders, but possibly also in relation to property matters. I refer to that because the substantive proceedings in this Court relate to both parenting and property settlement.
On 4 May 2017, the matter again came before Judge Cole and his Honour, in the absence of the mother, who was of course then still overseas with the two children, transferred the proceedings to the Family Court of Australia.
Berman J in [19] recorded that there was some issue between the parties as to whether the children in fact returned to Australia. As I understand it the father was of the view that the mother did not return whereas, in fact, the mother did return for those few days. However, for the purposes of the application before me, and the appeal against his Honour’s orders, that difference is of no moment, and his Honour said as much at [17] for example. Importantly, his Honour said this at [22]:
Again, there is a significant emphasis by the mother on what she says is the importance of the children having flown back to Australia for a few days, but having then returned [overseas]. It seems that the mother considers that it was imperative that (sic) children remain in the jurisdiction in order for the Court’s consideration of their best interests to be determined. It appears that she believes that providing she returned them even for a snapshot in time, they were thereafter not prevented from returning [overseas].
His Honour goes on in [23] to record:
It was a wrong apprehension. The orders made by his Honour on 13 December 2016 were intended to provide that the children were able to spend time with the father in January, and, in any event, certainly up to 4 May 2017, but arguably continuing to the present date. …
And his Honour then opined:
The mother may well be in breach of the orders of 14 November 2016.
His Honour noted at [25]:
… It is clear from the mother’s affidavit that she does not have any intention at this stage of returning the children to the jurisdiction. …
Then, referring to the mother filing a Notice of Discontinuance, his Honour said in [27]:
… Her actions do nothing to bring to an end the orders sought by the father in his Response filed on 17 November 2016. …
And I interpolate, that being the father’s response in the substantive proceedings.
To put this into perspective, his Honour said at [36]:
It could not be said that even if the mother did return the children for a few days to the jurisdiction, that in some way her subsequent departure was with [the father’s] consent. As I have indicated, it may be that the mother is in error if she thinks that at the time she returned [overseas] she was therefore free of any obligation in respect of any extant or outstanding order. The contrary is clearly true. The December order provided for the children to spend time with the father for the balance of January 2017. The November order provided for the children to spend time with the father either before she relocated to [intrastate] or after she relocated [intrastate].
Thus, his Honour on those bases made the orders that he did, and to which I have referred. To repeat, it is those orders which are the subject of this proposed appeal.
In her Draft Notice of Appeal filed on 20 September 2017 the mother relied on the following grounds of appeal:
1.THAT the Commonwealth of Australia – through the Department of Immigration and Border Security made a blatant and monumental ERROR in producing (either Intentionally or Negligently) – which asserted that I [and my 2 daughters (then the subject of Court Orders)] FAILED to return to Australia – as Ordered in 2016 AND that all the Courts have subsequently (including the Hague Convention Court [overseas]) relied on the truth, accuracy and veracity of the Dept of Immigration documents – when AT ALL TIMES – the substantial information in those documents WERE manifestly incorrect and wrong AT ALL TIMES.
2.Based on the errors set out above – ALL the parties, including the Respondent and the relevant Courts, took advantage of such incorrect documents – and made Orders against me – on the strength of the former documents of Dept. of Immigration & Border Security documentation being correct, depsite (sic) my protests That (sic).
The mother sought leave to appeal in her Draft Notice of Appeal. I do not propose to dwell on that, even though it is problematic that she requires leave, but more importantly, in summary, the so-called grounds of appeal complain that the Commonwealth of Australia, through the Department of Immigration and Border Security, made an error in asserting that the mother, and her two daughters, failed to return to Australia as ordered. And further, that courts have subsequently relied on the accuracy of that assertion, when at all times that information was incorrect.
Pausing there, what an appeal is about is whether the trial judge has made an appealable error. There is nothing in those grounds of appeal which can conceivably be described as alleging an error by the trial judge.
Further, it seems that what the mother is still promoting is that she, by her return to Australia for those few days, and there then being no order specifically preventing her from returning overseas, was free to do so. And that that, in some way, demonstrates error by the trial judge, presumably in not understanding or appreciating that. But as his Honour has said on at least two occasions in his reasons for judgment, and I indicate I agree entirely with his Honour, the mother is mistaken about that. The mother was not at liberty to return overseas with the children in the face of the order that provided for the father to have the children from 14 January 2017 until 28 January 2017.
Plainly then, the proposed appeal is incompetent. Thus, even if, and I make no formal finding about this, I was content that there was a satisfactory explanation for the failure to comply with the order and the Rules, and the appeal was allowed to proceed, immediately it would be dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth), on the basis that it has no reasonable chance of success, and I would say, it has no chance of success whatsoever.
As a result, and to repeat, there is no utility in extending the time for the filing of a Notice of Appeal.
I mentioned earlier in these reasons that a third relevant factor in these matters is the prejudice to the parties, depending on the result. Strictly, I do not need to address that factor, given that I have now found a lack of merit in the appeal, but I will say this; there would be a clear prejudice to the father if an extension of time was granted, namely he would then have to deal with an appeal, which he does not currently have to. On the other hand, there would clearly be a prejudice to the mother if she was not able to pursue her appeal. Importantly though, that prejudice cannot affect the decision that I make because, to repeat, it is pointless. There is no utility in the appeal, and to refer again to Gallo v Dawson, the interests of justice clearly require that this application be dismissed.
I now have an application on behalf of the father for costs in the amount of $1,500 plus GST or, in other words, $1,650.
That application is opposed by the mother.
Section 117 of the Act governs the question of costs and pursuant to subsection (2), an order for costs can be made if there are circumstances that justify it. In assessing whether there are such circumstances, and also what order should be made, subsection (2A) sets out a number of factors to be considered. One of those factors is the financial circumstances of the parties, and I will come back to that.
Another factor is whether a party has been wholly unsuccessful, and it is that factor on which the father relies in seeking the order for costs because, of course, the application has been wholly unsuccessful.
In terms of the financial circumstances of the parties, I do not really need to hear from the father’s counsel about his client’s financial circumstances. It is more important to know what the position is with the mother, and she has told me that she is in poor financial circumstances. She has no assets, and in short, no money available to meet an order for costs.
The authorities are quite clear that impecuniosity cannot, of itself, prevent an order for costs being made where there are circumstances that justify an order being made. In my view, there are circumstances here that justify an order being made, namely the fact that the application has been wholly unsuccessful (see D & D (Costs) (No 2) (2010) FLC 93-435). It was an application that was doomed to fail from the outset, and it was an application that should never have been brought.
In those circumstances I propose to make an order for costs. In terms of the amount sought, I consider it to be a reasonable amount and, from my understanding, in accordance with scale.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 10 November 2017.
Associate:
Date: 23 November 2017
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