SAWER & HUGH
[2011] FamCAFC 107
•17 May 2011
FAMILY COURT OF AUSTRALIA
| SAWER & HUGH | [2011] FamCAFC 107 |
| FAMILY LAW - APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the appeal was deemed abandoned after the father failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – where father claims health difficulties prevented him from filing in time – application opposed by mother and independent children’s lawyer – question becomes one of whether reasons proffered by the father are adequate – the delay involved does not prevent the application being granted - significantly though there is no merit in either the application for leave to appeal or the appeal itself - consideration of the consequences for the parties and the children if the application is granted or refused - concern about the history of the proceedings and the prejudice to the mother if the appeal is reinstated - the interests of justice require that the application be refused - Notice of Appeal formally dismissed FAMILY LAW - COSTS – regime for written submissions. | |
| Family Law Act 1975 (Cth) s 94(2D)(c) and s 94(2F) Family Law Rules 2004 (Cth) rr 22.13, 22.44 & former r 22.57 | |
|
| APPELLANT: | Mr Sawer |
| RESPONDENT: | Ms Hugh |
INDEPENDENT CHILDREN’S LAWYER | Mr Walker |
| FILE NUMBER: | LNC | 511 | of | 2008 |
| APPEAL NUMBER: | SA | 24 | of | 2010 |
| DATE DELIVERED: | 17 May 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 August 2010 8 March 2011 |
| LOWER COURT JURISDICTION: | Family Law Court |
| LOWER COURT JUDGMENT DATE: | 17 March 2010 |
| LOWER COURT MNC: | [2010] FamCA 290 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Lewis |
| SOLICITOR FOR THE RESPONDENT: | Levis Stace & Cooper |
| COUNSEL FOR THE ICL | Mr Walker |
| SOLICITOR FOR THE ICL | David Walker & Co |
Orders
The Application in a Case filed on 12 August 2010 be dismissed.
The Notice of Appeal filed on 14 April 2010 be dismissed.
The parties are at liberty to file written submissions with regards to the costs of the Application in accordance with the following timetable:
(a)on behalf of the Respondent and the Independent Children’s Lawyer within 21 days hereof;
(b)on behalf of the Applicant in response thereto within fourteen [14] days thereafter;
(c)on behalf of the Respondent and the Independent Children’s Lawyer in reply within seven [7] days thereafter; and
each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party or parties.
IT IS NOTED that publication of this judgment under the pseudonym Hugh & Sawer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 24 of 2010
File Number: LNC 511 of 2008
| MR SAWER |
Appellant
And
| MS HUGH |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed by the father on 12 August 2010 wherein he sought an order that the Notice of Appeal filed on 14 April 2010 be reinstated. The appeal which was against orders made by Bennett J on 17 March 2010 was deemed abandoned because the father had failed to file a draft appeal index within the time prescribed in r 22.13 of the Family Law Rules 2004 (Cth) (“the Rules”).
The application is opposed by the mother and by the independent children’s lawyer.
I note that although I heard this application on 25 August 2010 I delayed delivering my reasons for judgment until the outcome was known of ongoing proceedings in the Family Court in relation to parenting issues and which I considered were relevant to the appeal that the father had filed. Judgment in those proceedings was delivered by the Acting Chief Justice on 10 February 2011 and in summary the order provided for the two children the subject of the proceedings to live with the father whereas the previous order was that those children were to live with the mother.
In any event, in light of those orders I held a directions hearing in this matter on 8 March 2011 to ascertain whether it was still necessary for this application to be determined. The father appeared to concede that there was little or no point in pursuing the appeal in relation to the interim parenting orders made by Bennett J, but given the insistence of the mother that the orders as to penalty and costs made by her Honour should be maintained, the father indicated that he wished to pursue the application for reinstatement.
Thus, to proceed with the application, I record that in support of the orders sought the father filed an affidavit on 12 August 2010. In addition I have before me the reasons for judgment delivered by Bennett J on 17 March 2010 and the said Notice of Appeal.
During the hearing, I was requested by the parties to take into account a number of other documents filed in the proceedings in the Family Court and I will refer to these documents later in these reasons.
The law
Section 94(2D) of the Family Law Act 1975 (Cth) deals with applications of a procedural nature in respect of appeals and relevantly paragraph (c) provides as follows:
(2D) Applications of a procedural nature, including applications:
…
(c)to reinstate an appeal under subsection (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned: or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
That is the paragraph under which the father is making his application. I also observe that s 94(2F) provides as follows:
No appeal lies under this section from an order or decision made under subsection ... (2D).
In relation to the Rules, the rule under which the appeal is deemed abandoned here is r 22.13. That rule provides for a filing of a draft index to appeal books within 28 days after the filing of the Notice of Appeal, or the date when reasons for judgment are delivered, and if that is not complied with then the appeal is taken to be abandoned.
Rule 22.44 is also relevant, and that provides simply that a party may apply to have an appeal taken to be abandoned under Chapter 22 of the Rules reinstated. It has to be noted that that is the current rule in place of the former r 22.57, and that rule provided a number of factors that the court may consider in determining an application for reinstatement as follows:
Former Rule 22.57 Application for reinstatement of appeal
(1) A party may apply to have an appeal abandoned under subrule 22.56(1) reinstated.
(2) In determining an application under subrule (1), the court may consider, among other things, the following:
(a)the main purpose of these Rules (see rule 1.04);
(b)the administration of justice;
(c)whether the application has been made promptly;
(d)whether the non-compliance was intentional;
(e)whether there is a good reason for the non-compliance;
(f)the extent to which the party has otherwise complied, in the case, with orders and legislative provisions;
(g)whether the non-compliance was caused by the party or the party’s lawyer;
(h)the effect of non-compliance on each other party;
(i)the effect that reinstating the appeal would have on each other party and on parties to other cases in the court;
(j)an order for costs, including costs on an indemnity basis;
(k)whether a party should be prevented from taking any further steps in the appeal until the costs are paid.
With the current rule, there are no factors set out to provide guidance in considering such an application, but logically, and the authorities support this, the sorts of matters identified in the former r 22.57 are the sorts of matters which can be relevant to this application and may be considered by the court in dealing with any reinstatement application. However, ultimately it is still a matter of discretion (Bane & Hacker [2009] FamCAFC 47 at paragraph 25).
In terms of relevant authorities, I refer to the High Court decision of Gallo v Dawson (1990) 93 ALR 479, and specifically the judgment of McHugh J where his Honour 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.
Although that case was dealing with an extension of time to appeal, it has been held in this Court on a number of occasions, that the principles there set out equally apply to an application to reinstate an appeal. I refer to cases such as Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101.
The other authority that I mention briefly is Bemert & Swallow (2010)
FLC 93-441. That is a quite recent Full Court decision of this Court which addresses specifically the principles to be applied in hearing reinstatement applications such as this. I note that the Full Court in that case approved, or referred to with approval, the cases that I have just cited, namely Rand & Rand and Batey‑Elton & Elton, and also referred to and said very much what I have just said as to the relevance of the decision in Gallo v Dawson. Importantly though, in Bemert & Swallow, the Full Court concluded (at paragraph 154) that:
… the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account.
However, it is important to appreciate the relevant provisions of Chapter 1 of the Rules, and the Rules generally in relation to case management, and I add, in my view, it is helpful to have regard to the factors set out in the former r 22.57, not from any prescriptive point of view, but as a guide.
Relevant factors that are also often referred to in cases such as this and drawing specifically on what was said in Gallo v Dawson, are whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, the history of the proceedings, the conduct of the parties to the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application. However, the overarching principle is to ensure that injustice is not visited upon primarily the applicant, but also the respondent.
Discussion
Delay
Putting the timeframe here into context, as I have said, the orders were made on 17 March 2010, the reasons for judgment were settled and became available on 19 April 2010, the Notice of Appeal was filed within time on 14 April 2010, and the draft appeal index should have been filed on or before 17 May 2010.
The father in his affidavit deposes that he sent a letter to the Appeal Registry dated 18 May 2010 enclosing a draft index to the appeal book. However, that letter, if it was in fact sent, was never received by the Appeal Registry, and accordingly on 20 May 2010 the Regional Appeal Registrar sent a letter to the father advising him that because he had not filed the draft appeal index within the prescribed time, his appeal was deemed abandoned.
In the circumstances, and given that neither party, nor the independent children’s lawyer has sought to give evidence or to call witnesses to be cross-examined as to this issue, I proceed on the basis that the father’s version is correct, namely that he forwarded a draft index of appeal to the Appeal Registry on 18 May 2010.
That of course does not prevent the appeal being deemed abandoned because of late filing, however, the delay is then only one day, or rather two or three days given that the relevant date is when it would have been received in the Registry.
In terms of the reasons for the delay the father said this in his affidavit:
10.At the same time as the Appeals process was going on I was also responding to child support matters in the Federal Magistrates Court. These processes are extremely upsetting, frustrating and confronting to me. I am not in good health and currently suffer from depression and an anxiety disorder triggered by my long standing Family Court litigation. I cannot afford my own lawyer. I am not employed and rely on my partner and my extended family for financial support.
The question then becomes whether these reasons are adequate. Neither the mother nor the independent children’s lawyer directly challenged these reasons but instead approached this application by submitting that given the history of the proceedings and the conduct of the father the justice of the case required that the appeal not be reinstated. I will come later to that topic, which is of course the overarching principle that applies, but in relation to the discrete issue of delay and the reasons for it, it seems to me, that the delay was not such that it should by itself lead to a refusal of the application.
The merits of the appeal
The orders appealed against comprise final orders, interim orders, procedural orders, requests and a direction. The final orders are the order for costs, the order imposing a fine and the discharge of an earlier reservation of costs in favour of the father. The interim orders were parenting orders.
With the procedural orders, the requests and the direction, although the father seeks to appeal against all orders made, there is simply no basis or justification for appealing against these orders, the requests or the direction. It is incomprehensible to suggest that the father could successfully appeal against them. Thus I do not propose to have any regard to the same when considering the application that is before me.
In relation to the interim parenting orders, leave to appeal is required, and I need to consider the prospects of success on that basis. To obtain leave to appeal the father must demonstrate that there was an error of principle and/or a substantial injustice caused.
The initial difficulty that I have in determining the merit of the father’s application for leave is that in the Notice of Appeal he has failed to provide any facts in support of the application and specifically any facts which establish a basis for obtaining leave. All he has done is make the following general statements:
1. Justice Bennett applied the wrong principle of law.
2.Justice Bennett made a finding of facts or facts on an important issue which could not be supported by the evidence.
3.Justice Bennet exercised her discretion to arrive at a decision which was clearly wrong.
Clearly this provides me with no detail as to what precisely the father’s challenge is. The grounds of appeal in the event that leave is granted are also of no assistance. They are as follows:
1.The penalty was manifestly excessive.
2.Justice Bennett failed to take all evidence into account.
3.Justice Bennett went against the weight of evidence before her.
4.Justice Bennett is incompetent.
5.Justice Bennett is biased.
6.Justice Bennett’s decision does not put the children as paramount.
Clearly not all of these grounds relate to the interim parenting orders (e.g. ground 1), but those that do, to repeat, do not help me.
Further, the orders sought provide no assistance either. They include orders that simply cannot be made on the basis of the Notice of Appeal, such as that, “the current ICL be dismissed, and new ICL appointed”.
I also observe that despite ample opportunity to do so the father failed to elaborate on the basis of his Application for Leave to Appeal in his oral submissions made on 25 August 2010.
Finally, I have also read her Honour’s judgment and there is no error of principle that I can discern in her Honour’s reasons in support of the interim parenting orders.
However, the circumstance that would render any application for leave unsuccessful in any event is that the orders were merely holding orders until final parenting orders could be made, and those orders were in fact made on
24 May 2010. Those orders discharged all previous parenting orders, and significantly the father did not appeal against these orders. Further, as referred to earlier in these reasons, there were subsequent applications and hearings in this case which culminated in alternative final parenting orders being put in place. Thus, there is no doubt that the father would not be successful in pursuing an appeal against the interim parenting orders made on 17 March 2010.
That leaves the order for costs, the order imposing a fine and the order discharging the reservation of costs in favour of the father.
The father does not need leave to appeal against these orders, but again, the Notice of Appeal provides no assistance whatsoever in determining the merits of the appeal against these orders. I also observe again that despite the father having the opportunity to do so he failed to elaborate on the grounds of appeal in his oral submissions before me on 25 August 2010 or even on 8 March 2011.
Further, having read her Honour’s reasons for judgment, it is not apparent to me that her Honour has erred at all in reaching her decision on these matters. Indeed, her Honour carefully and thoughtfully addressed the issue of the penalty to be imposed as a result of the father’s admission of the contraventions without reasonable excuse, and the issue of costs. In relation to the reservation of the father’s costs I fail to see how the father can complain about that given that the basis of that order was her Honour allowing the father’s costs and offsetting them against the costs awarded to the mother.
Thus, I am not persuaded that the appeal against these orders has any merit.
Other factors
Given my findings in relation to delay and the merits of the appeal I do not propose to dwell on factors such as the nature of the litigation, but the mother’s counsel and the independent children’s lawyer have both highlighted the history of the proceedings and the conduct of the parties to the proceedings.
Counsel for the mother has referred me to three decisions of her Honour apart from the decision the subject of the appeal. They are her Honour’s decision delivered on 21 May 2010 dismissing the father’s application to remove the independent children’s lawyer, a decision of her Honour delivered on 24 May 2010 wherein her Honour made orders with injunction, and the decision of her Honour delivered on 11 May 2010 wherein her Honour granted a stay of the final orders made on 17 March 2010.
These decisions give an insight into the history of these proceedings and to the conduct of the parties and particularly the father. They also address the father’s psychological health.
Mr Lewis submits that the father is a “serial litigator” and that in the previous 12 months he had filed four applications which did not relate to parenting orders at all. They were to remove the independent children’s lawyer, to disqualify the trial judge, to stay the orders and in relation to child support. Indeed, it is said that the father’s focus has been peripheral issues rather than issues in relation to the children. He also did not participate in the hearings which led to the final parenting orders being made on 24 May 2010 and on
10 February 2011.
In response the father has said that he does have psychological issues but he claims they have been caused by the proceedings themselves. He requested that I read the Family Report of the Family Consultant, dated 19 February 2010 and a report provided by the Department of Health and Human Services on
2 October 2009. I have done that and they have assisted me in better understanding the issues in these proceedings. Likewise the independent children’s lawyer requested that I read an earlier report of the Family Consultant dated November 2008, and a memorandum of a meeting between the Family Consultant and the paternal grandparents on 24 April 2009, and a report of Dr S. I was unable to locate the report of Dr S in the file, but I have read the other documents.
All of this material certainly provides me with a better insight into the history of the proceedings, the issues involved, and the conduct of the parties, but given the nature of the hearing that I have conducted I am not in any position to make any findings myself on these topics. However, I am able to take the material into account generally in reaching my decision, and it does assist me in assessing where the justice of the case lies. I will turn to that issue shortly.
Before I address the justice of the case I need to briefly discuss the consequences of granting or refusing the application. If I refuse the application, as I have identified, there is no appeal from that refusal. However there would still be the ability of the father to make an application for special leave to appeal to the High Court of Australia. That of course would be a difficult exercise and may not be warranted in this case, but it would be the only avenue available to the father to pursue this appeal. Thus there are serious consequences in refusing to grant the application
On the other hand, in granting the application, there is a clear and obvious prejudice to the mother, namely the appeal would be reinstated and she would then have to deal with it. That would involve time, resources, effort and cost, presumably, in instructing her legal representatives to respond to the appeal, whereas, as the matter stands today, the appeal is deemed to be abandoned, the matter is over, and the mother would have been able to get on with her life. More importantly the children would likewise be able to get on with their lives. Having read the material to which I have been directed, I also take into account the submission of the counsel for the mother that reinstating the appeal would have a “devastating impact on the mother and the children, and that would be an impact that the father would fail to appreciate.” Thus, there are serious consequences for the mother as well, and I have to balance that as best I can in granting or refusing the application, as well as in considering where the interests of justice lie.
Now, coming to the interests of justice, in relation to the factors that I have had regard to, the delay involved does not prevent the application being granted, however significantly I have found that there is no merit in either the application for leave to appeal or the appeal itself. Further, I am concerned about the history of the proceedings and the prejudice to the mother if the appeal is reinstated. In all the circumstances it seems to me that the interests of justice require that this application be refused, and that is what I propose to do. Given that I also propose to formally dismiss the Notice of Appeal.
Costs
At the hearing of the application neither party nor the independent children’s lawyer raised the issue of costs, but given my decision I propose to set up a regime for written submissions to be filed in relation to costs if either the mother or the independent children’s lawyer wishes to pursue an application for the same.
I certify that the preceding forth-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 17 May 2011.
Associate:
Date: 17 May 2011
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