Saboski and Garth

[2018] FamCAFC 53

FAMILY COURT OF AUSTRALIA

SABOSKI & GARTH [2018] FamCAFC 53

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Inadequate explanation for the delay in filing a Notice of Appeal – Where the proposed appeal has poor prospects of success – Application dismissed.

Family Law Act 1975 (Cth) ss 4(1), 94(1)
Family Law Regulations 1984 (Cth) reg 15A
Family Law Rules 2004 (Cth) Sch 3

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Fitzpatrick & Fitzpatrick (2005) FLC 93-227; [2005] FamCA 394
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108
Singam & Moffrey (2015) FLC 93-641; [2015] FamCAFC 42
Slater v Light (2013) 48 Fam LR 573; [2013] FamCAFC 4
Zane & Allan (2008) FLC 93-378; [2008] FamCAFC 115

APPLICANT: Mr Saboski

RESPONDENT: Ms Garth

INDEPENDENT CHILDREN’S LAWYER: Lukes Law

FILE NUMBER: WOC 110 of 2014

APPEAL NUMBER: EA 30 of 2018

DATE DELIVERED: 21 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 28 February 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 29 November 2017

LOWER COURT MNC: [2017] FamCA 964

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Swiftly Legal

SOLICITOR FOR THE RESPONDENT: Rowley & Ross Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lukes Law

Orders

1. The Application in an Appeal filed on 13 February 2018 is dismissed.

2. Mr Saboski (“the applicant”) is to pay the costs of Ms Garth in the sum of $1,371.

3. The applicant is to pay the costs of the Independent Children’s Lawyer in the sum of $990.

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 Saboski & Garth 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 30 of 2018
File Number: WOC 110 of 2014

Mr Saboski

Appellant

And

Ms Garth

Respondent

REASONS FOR JUDGMENT

Introduction

1. By an Application in an Appeal filed on 13 February 2018, Mr Saboski (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against parenting orders made by Rees J on 29 November 2017.  Her Honour had before her parenting proceedings between the applicant and Ms Garth (“the respondent”). 

2. The orders provided for the respondent to have sole parental responsibility for the parties’ child, who was born in 2010.  The child  was to live with the respondent and spend time with the applicant from 4.00 pm Friday to 4.00 pm Sunday on every third weekend, provided that the paternal grandfather spent time with the applicant and child on each day (Friday, Saturday and Sunday) including sharing a meal with the applicant and child on one of those days.  If the paternal grandfather had any concerns about the applicant’s mental state or presentation he was forthwith to remove the child from the applicant’s care and make arrangements to return the child to the respondent. 

3. The application is opposed by the respondent and by the Independent Children’s Lawyer (“ICL”).

4. Before turning to the merits of the application, it is useful to set out some of the procedural history of the matter.

5. The matter came before the primary judge on 10 April 2017, on which day it was fixed for a four day hearing commencing 15 August 2017.  At the commencement of the hearing on 15 August 2017, the applicant applied for an adjournment asserting difficulties with obtaining legal aid funding.  His application was granted and the matter was refixed for hearing commencing 6 November 2017. 

6. Also on 15 August 2017 the parties met with Dr E, a psychiatrist, who was the court-appointed single expert in the matter.  It is appropriate to record here that Dr E’s observations of the applicant’s behaviour on that day provided a significant basis for his opinion that it would be in the interests of the child that the time the father spends with her be overseen by a responsible person.

7. The applicant did not appear on 6 November 2017 but forwarded a medical certificate to the Court which simply indicated that he was unable to attend court on that day and gave no other details.  The primary judge adjourned the matter to the following day and the ICL, at the request of the Court, contacted the father, advised him that the matter would go ahead and that it would proceed in his absence as an undefended matter if he did not attend.  The docket registrar provided the same information to the applicant by email.  On the following morning, the applicant did not appear and the matter proceeded in his absence.

8. At the conclusion of the hearing, her Honour made some interim orders pending delivery of the reserved judgment.  Judgment was due to be delivered on 15 November 2017 but shortly prior to its delivery the applicant filed an Application in a Case seeking to discharge the interim orders.  The application was listed for hearing on 17 November 2017, on which date the applicant made an oral application to reopen the hearing and, in particular, to cross-examine Dr E.  That application was refused by the primary judge but directions were made permitting the applicant to make written submissions.  In order to assist him to do so he was provided with a copy of the transcript of Dr E’s evidence. The submissions were filed and on 29 November 2017, as I have said, the orders the subject of this application were made. Any Notice of Appeal should have been filed on 27 December 2017.

Application for an extension of time

1. The principles to be applied in this case are set out in the well-known case of Gallo v Dawson (1990) 93 ALR 479 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.

2. The hearing of such an application involves the exercise of discretion so as to enable the Court to do justice between the parties.  In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequence for the parties of the grant or refusal of leave and the merits of the appeal.  The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the rules will work an injustice.

Explanation for the delay

1. The applicant’s evidence is that he intended to appeal the decision of the primary judge from the moment it was delivered.  He said, however, that he did not have the financial means to engage lawyers and attempted to appeal the decision himself.  He was unable to make much sense of the information obtained from a Google search but eventually came upon the Family Law National Enquiry Centre (“NEC”) website.  He contacted the NEC on 12 December 2017 and later that day received an email containing hyperlinks to various court forms.  The applicant says he attempted to complete them on his own but soon realised that he was unable to do so. 

2. He noticed in one of the forms he was provided that it was possible to apply for an extension of the time in which to appeal.  This had some attraction to him because he was shortly to be in receipt of the sum of $148,712.42 relating to a claim he had made under his superannuation fund’s total and permanent disability insurance policy.  He therefore decided to defer pursuing an appeal until he received that sum.  There is no suggestion that he attempted to contact any solicitors to see if they would act for him in advance of the arrival of that sum. 

3. The funds were received on 22 December 2017.  He contacted his current lawyers on 29 December 2017 and received a cost agreement and disclosure statement, which he signed and returned.  He had a conference with his solicitor on 2 January 2018, during the course of which the lawyer asked for a copy of the decision of the primary judge and the transcripts.  Those documents were forwarded to the solicitor later that day. 

4. On 11 January 2018 the applicant deposed to a further conversation with his lawyer, during which the lawyer requested that he forward a number of additional documents so that he could finish preparing the Notice of Appeal and the Application in an Appeal.  The applicant then said:

   Regrettably, it took me longer than I had anticipated to collate the relevant documents and send them to [the lawyer].  I did not provide [the lawyer] with all of the documents he had requested until 5 February 2018.

5. There is no explanation offered for that delay or the delay between 5 February 2018 and the filing of this application on 13 February 2018.

6. Whilst recognising the difficulties that both impecunious litigants and litigants in person face, the fact remains that many impecunious self-represented litigants manage to file Notices of Appeal within time.  Thus whilst there is an explanation for the initial delay it is not particularly compelling.

7. However, the more important delay in this matter is the delay from 29 December 2017 until the filing of the application on 13 February 2018, which is of itself well in excess of the 28 day period provided for the filing of a Notice of Appeal.  As the lawyer for the applicant candidly but properly conceded, that delay and in particular the delay between 11 January 2018 and 5 February 2018 cannot be adequately explained.  The delay between the last day for the filing of a Notice of Appeal and the filing of the application for an extension of time is extensive and not adequately explained. 

Merits of the application of the proposed appeal

1. The proposed grounds of appeal are:

   1.The trial judge erred in failing to determine whether a rehearing would occasion any injustice to the [respondent] that could not be remedied by a cost order.

   2.The trial judge erred in failing to determine whether a rehearing may result in some different outcome.

   3.The trial judge erred in finding that the [applicant] had not attended the final hearing because “he chose not to do so.”

   4.The trial erred in having the final hearing, listed on the 6^th and 7^th of November 2017, proceed undefended in circumstances where the [applicant] had filed substantial material and previously defended the proceedings.

   5.The trial judge erred in finding that the Court had notified the [applicant] that the matter would proceed undefended.

   6.The trial judge erred in ordering that the [applicant]’s time with the child be supervised for an indefinite period without considering whether orders avoiding the permanence of supervision, such as an order for a review of the supervisory arrangements in the future, ought to have been made.

   7.The trial judge erred in failing to consider the practical long term effects on the child of an indefinite order for supervised contact.

2. Proposed grounds 3 and 5 are defective because they are appeals against findings and not against a decree (see s 94(1)) and the definition of “decree” in s 4(1) of the Family Law Act 1975 (Cth)).

3. Further, grounds 1 to 5 relate to the primary judge’s decision to proceed with the hearing on 7 November 2017 in the absence of the applicant. Such a decision is not a parenting order within the meaning of reg 15A of the Family Law Regulations 1984 (Cth) and is interlocutory. Accordingly, leave to appeal is required. The lawyer for the applicant conceded this to be so.

4. Ordinarily, where leave is required, the Court will enquire as to whether the decision is attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision to be wrong:  Medlow & Medlow (2016) FLC 93-692. Leave to appeal is reluctantly given in relation to procedural matters: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177.

5. The primary judge dealt with any financial prejudice that would be suffered if the matter were to be adjourned, saying:

   18.No enquiries had been made on behalf of the father to ascertain when Dr E might be available to be cross-examined or how much he would charge for his appearance. Nor had any enquiries been made about when the matter might be able to resume. The father did not propose to pay Dr E’s fees himself.

   19.No proposal was made on behalf of the father to compensate the Legal Aid Commission for any further costs incurred if legal aid were granted to the mother and the appointment of the ICL further extended. The Legal Aid Commission has already funded the hearing.

6. The applicant’s refusal to pay the costs of the Legal Aid Commission for any further costs if the hearing were to be reopened at his request makes ground 1 of his proposed grounds of appeal unsustainable.

7. As to the second proposed ground it is true that her Honour did not expressly consider whether or not a different outcome was possible if leave was granted to reopen.  However it follows from the application to cross-examine Dr E that a challenge would be made to Dr E’s evidence and opinions and that if such a challenge was successful there could be a different outcome.  I consider that her Honour’s reasons proceed on that assumption and thus it was not a matter ignored by the primary judge.

8. As to the third proposed ground, in the light of the totally inadequate medical certificate proffered to the primary judge on 6 November 2017 and in the absence of any other explanation offered by the applicant, the finding that the applicant had not attended the final hearing because he chose not to do so was one that was clearly open on the evidence.

9. It is true that the applicant had filed substantial material and previously defended the proceedings.  However he had failed to attend the hearing or to give an adequate explanation for his non-appearance.  His failure to appear in those circumstances immediately distinguishes this matter from Zane & Allan (2008) FLC 93-378 at [45] and following and Singam & Moffrey (2015) FLC 93-641, on which authorities the applicant’s lawyer relied in support of this application.

10. The applicant accepted that the primary judge had a discretion as to whether to proceed with the hearing or not but submitted that the discretion had miscarried because her Honour proceeded in the absence of the applicant in circumstances where he had filed substantial material.  The correct analysis of that submission is that wherever a party has filed substantial material but not turned up to the final hearing, it must be adjourned.  Such a position makes nonsense of the undoubted discretion that the primary judge had.  It is difficult therefore to see that this proposed ground of appeal has any significant merit.

11. It also needs to be recognised that the primary judge did give the applicant the opportunity to make written submissions before judgment was delivered.

12. As to the fifth proposed ground of appeal, the applicant has not identified any basis for suggesting that the primary judge was in error when she found that the Court had notified him that the matter would proceed undefended. 

13. In relation to each of these five grounds, leave to appeal is required.  In my view the applicant would be unlikely to receive a grant of leave to appeal these procedural orders, as no error in the approach of the primary judge has been established.

14. It is convenient to deal with the last two grounds of appeal together, each of which are directed to the issue of what was described as supervision.  It is useful to set out the relevant orders made by the primary judge:

    …

    (5)That the father’s time with the child in Order 4 above does not commence until:

    (a)The paternal grandfather provides written undertakings to the Court that:

    (i)     Each time that the father spends with the child the paternal grandfather will spend time with the father and child on each day, being Friday, Saturday and Sunday, including sharing a meal with the father and child on one of those days.

    (ii)    If the paternal grandfather has any concerns about the father’s mental state or presentation, then he is to forthwith remove the child from the father’s care and make contact with the mother, advise her of his concerns and make arrangements to return the child to the mother.

    (b)The C Contact Centre is available to facilitate changeovers in accordance with Order 4.

    (6)That changeovers of the child, pursuant to these Orders, are to take place at the C Contact Centre at Suburb D

15. There was some debate between the parties and the ICL as to whether order 5(a)(i) was an order for supervision or oversight.  At least for the purposes of this application, I do not think that distinction is of any significance.

16. It is obvious that the orders contain no mechanism for review. However, it is important to understand the basis on which the orders were made.  The supervision or oversight was recommended by Dr E because he was concerned about the father’s mental state and his use of stimulatory drugs.  There was no suggestion in the evidence of Dr E that the matters that caused him to be concerned were likely to be resolved in the foreseeable future.

17. Thus there would appear to have been no evidentiary basis for including a review mechanism. The applicant did not suggest that there was.

18. It was submitted by the applicant that it is well established that, ordinarily speaking, it is not in the best interests of the children for them to spend indefinite supervised time with a parent (Slater v Light (2013) 48 Fam LR 573; Moose & Moose (2008) FLC 93-375; Fitzpatrick & Fitzpatrick (2005) FLC 93-227). Although, of course, such an order can be made in appropriate circumstances.

19. The difficulty for the applicant is that the issue of a review mechanism and what might appropriately trigger that mechanism was not raised in the proceedings. It was not the subject of any evidence. The applicant did not propose such an arrangement in his written submissions.  It is not surprising then that this was not considered by the primary judge.

1. Whilst it is true that her Honour could have considered and formulated such orders of her own motion, in the absence of any evidence to support such a course or any suggestion from the applicant that such a consideration should be undertaken, it cannot be said to be an error for her Honour not to have done so.  Accordingly, these two grounds are so lacking in merit that they lend little support to the application. There is no reasonable basis on which they could succeed.

2. Taking the less than adequate explanation for the length of the delay and the relatively poor prospects of success of the proposed grounds of appeal, I am not satisfied that it is in the interest of justice to grant the application.

3. The application will be dismissed.

Costs

1. The application has been wholly unsuccessful. The respondent sought an order for costs assessed at scale, in accordance with Sch 3 of the Family Law Rules 2004 (Cth), in the sum of $1,371 and the ICL sought costs assessed at the Legal Aid scale in the sum of $990. No submissions were made in opposition to those applications. They are the appropriate orders to make.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 March 2018.

Legal associate: 

Date:  21 March 2018