SARGENT & SELWYN - [2016] FamCAFC 241

FAMILY COURT OF AUSTRALIA

SARGENT & SELWYN

[2016] FamCAFC 241

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks to file an appeal over 14 months out of time – Where the primary judge delivered written reasons more than a year after orders were made – Where it is uncertain as to whether the primary judge delivered the reasons before he retired – Where the proposed appeal challenges the adequacy of the primary judge’s reasons – Where the extraordinary circumstances of the matter warrant the granting of an extension – Application allowed.

Bennett and Bennett (1991) FLC 92-191
Gallo v Dawson (1990) 93 ALR 479
Herridge & Handerson and Ors (2011) FLC 93-474
Macris & Galanis (2015) FLC 93-681
Rollings v Rollings (2009) 230 FLR 396

APPLICANT:

Mr Sargent

RESPONDENT:

Ms Selwyn

FILE NUMBER:

SYC

7405

2013

APPEAL NUMBER:

155

2016

DATE DELIVERED:

29 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

3 November 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

28 July 2016

LOWER COURT MNC:

[2016] FCCA 1987

REPRESENTATION

FOR THE APPLICANT:

The Applicant in Person

SOLICITOR FOR THE RESPONDENT:

Ms Linden of Linden Legal

Orders

The time for filing a Notice of Appeal against the orders made by Judge Scarlett on 29 June 2015 and 22 July 2016 is extended up to and including 6 December 2016.
The appeal is listed for directions before me at 11:30 am on Wednesday 21 December 2016.

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 Sargent & Selwyn 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 155 of 2016
File Number: SYC 7405 of 2013

Mr Sargent

Applicant

And

Ms Selwyn

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 9 September 2016, Mr Sargent (“the applicant”) seeks an extension of time in which to appeal against parenting orders made by Judge Scarlett on 29 June 2015. Those orders provided for the child, then aged three, to live with his mother, Ms Selwyn (“the respondent”), and to spend time with the applicant initially for four days and one night a fortnight. The applicant had contended that there should be orders for the child to spend equal time with each parent.
The orders were not accompanied by reasons. It was not until early August 2016, over 14 months later, that the parties received the reasons.
One of the applicant’s proposed grounds of appeal is that the primary judge’s reasons are inadequate. Of course, such a ground of appeal cannot be formulated until the reasons become available.
Thus, notwithstanding what appears at first blush to be a huge delay between the making of the orders in June 2015 and the filing of the Application in an Appeal seeking an extension of time to file an appeal in September 2016, some 14 months after the time for lodging an appeal has expired, I am satisfied that, in the extraordinary circumstances of this case, it is appropriate to grant the extension of time as sought. In order to explain why that is so it is necessary to look in some detail at the chronology of what occurred.
The primary judge heard the matter between 11 and 13 March 2015. As I have said, final parenting orders were made on 29 June 2015.
Issues immediately arose about the form of the orders made. It seems that it was common ground between the parties that at least two orders omitted the day when overnight time was to commence and that these orders required rectification. The parties could not agree on the days to be inserted in the orders. Correspondence between the lawyers commenced and continued until the lawyers acting for the applicant in the parenting proceedings ceased to act in August 2015. At the time, the property proceedings between the applicant and the respondent, which had not been determined, continued. In those proceedings the applicant had instructed a different firm of solicitors who were instructed not to act in the parenting proceedings. The applicant acted for himself in the parenting proceedings. This led to some confusion. There was also considerable correspondence between the parties on the one hand and the chambers of Judge Scarlett on the other.
On 22 July 2016 the primary judge issued a set of orders which were described as “Amended Order 22/7/2016 under the slip rule”. In those orders all previous parenting orders were discharged and a further set of orders were made in precisely the same form as had been made on 29 June 2015 save that the omissions of critical words in Orders 5(a)(ii), 6(b) and 8(a) were rectified by the insertion of appropriate days. No reasons were provided. No hearing had been conducted and the parties had not been invited to make submissions with respect to the appropriate way to amend the orders so as to cure the obvious defects.
It is important to record also that up to this time neither party had asked his Honour for the provision of reasons.
On 27 July 2016 the lawyers for the respondent wrote to the associate to the primary judge as follows:
We refer to our attached letter yesterday and the email from the father also sent yesterday.
Please advise as a matter of urgency when reasons of judgement will be provided, noting that His Honour will be retiring from the bench tomorrow.
(As per the original)
The following day, on 28 July 2016 at 3:42 pm, the associate to the primary judge wrote to the parties as follows:
Please be advised that the written reasons for judgment will be provided to parties next week.
The applicant deposed that he received the written reasons for the orders of 29 June 2015 on 12 August 2016.
The cover sheet of the reasons shows them as having been delivered on 28 July 2016. At the end of the reasons the usual signature of the judge’s associate appears together with the date 2 August 2016.
The significance of these dates is that the commission of the primary judge expired on 28 July 2016, when his Honour reached the age of 70 years, the mandatory age of retirement. Thus, the applicant argues, if the reasons were not delivered on 28 July 2016 but were in fact delivered later, they were not delivered by a person who held a commission as a member of the Federal Circuit Court of Australia. In that case, the applicant submits, no reasons have been provided for the making of the orders. The giving of reasons is a fundamental plank of our system of justice.
The respondent accepted both that the parties were not notified that reasons were to be delivered on 28 July 2016 and that the matter was not listed before the court. In that case and given the time of the email (3:42 pm) and the terms of the email (that is, that “reasons will be provided”) an inference can be drawn that the reasons were not delivered on 28 July 2016.
There is therefore considerable force in the applicant’s submission.
The applicant conceded there is no proposed ground of appeal that directly raises this issue. However, I take into account that the applicant is acting for himself and that he squarely raised this issue in his affidavit in support of the Application in an Appeal and in his submissions.
Further, it is a proposed ground of appeal that the primary judge failed to provide any or any adequate reasons for eight issues which are identified in the grounds. The obligation to give adequate reasons is well known: Bennett and Bennett (1991) FLC 92-191.
Of course, a person can only decide whether to appeal against the making of orders on the basis that insufficient reasons were given once the person has received those reasons.
There is force in the submission of the respondent that the applicant, having been aware of what he regarded as the unsatisfactory form of the orders, could have, with the assistance of his lawyers, filed a Notice of Appeal within time subject to any right to amend it once the reasons became available. That submission of course does not allow the possibility of an appeal against the adequacy of reasons. The applicant received the reasons on 12 August 2016 and thereafter he acted promptly in bringing the present appeal.
Secondly, there is the issue of the extensive delay from the making of the orders until the delivery of reasons (assuming that they were validly given). This differs from delay between the hearing and the making of orders and giving reasons which is not, of itself, a valid ground of appeal: Rollings v Rollings (2009) 230 FLR 396 at 415; Herridge & Handerson and Ors (2011) FLC 93‑474 at 85,779 - 85,780. An extensive delay of the kind here has been recently criticised by the Court and may be a basis for appellate review: Macris & Galanis (2015) FLC 93-681.
As was explained by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480, the point of the court being empowered to extend time to commence an appeal is to prevent the operation of the rules working an injustice. In the extraordinary circumstances of this case I am satisfied that the operation of the strict application of the rule would work an injustice and the time should be extended.
At the hearing of the Application in an Appeal, both parties made extensive submissions as to the prospects of success of each of the grounds of appeal. It is sufficient to say that the complaint that the reasons are inadequate has some substance. As I have said, the issue of whether reasons were given at all has considerable merit.
That, in my view, is sufficient to determine this application. I do not propose to discuss the remaining grounds which I consider to be of less merit. I am not prepared to find, however, that they are entirely devoid of merit.
It is now some 20 months since the hearing before the primary judge and 17 months since the orders were made. It will be some time before the appeal is determined and, if successful, many more months before the matter is re‑determined. This passage of time is significant given the young age of the child. No doubt any extension of time will cause the mother considerable anguish and expense, particularly when the orders themselves appear unremarkable.
However, as I said earlier, even taking these matters into account and giving them significant weight, the extraordinary circumstances of the matter demand an extension of time.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 29 November 2016.

Associate:

Date: 29 November 2016