Scott and Munayallan
[2019] FamCAFC 246
•16 December 2019
FAMILY COURT OF AUSTRALIA
| SCOTT & MUNAYALLAN | [2019] FamCAFC 246 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the father failed to file a draft index to the appeal book in accordance with r 22.13 of the Family Law Rules 2004 (Cth) – Where the father had a sufficient reason for not filing the draft index to the appeal book on time – Where there is no arguable ground of appeal – Where it would be futile to permit the appeal to proceed and to do so would inflict an injustice on the mother – Where the father’s failure to comply with orders of the Court, including costs orders made by consent, was taken into account – Application for reinstatement dismissed – Father to pay the mother’s costs of the application in a fixed sum. |
| Legal Aid Commission Act 1979 (NSW) s 57 Family Law Rules 2004 (Cth) rr 22.13, 22.44 |
| Astin & Harlow [2008] FamCAFC 66 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 |
| APPLICANT: | Mr Scott |
| RESPONDENT: | Ms Munayallan |
| FILE NUMBER: | SYC | 59 | of | 2010 |
| APPEAL NUMBER: | EA | 78 | of | 2019 |
| DATE DELIVERED: | 16 December 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 7 and 21 November 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 August 2019 |
| LOWER COURT MNC: | [2019] FamCA 676 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Duc |
Orders
The Application in an Appeal filed on 9 October 2019 for reinstatement of EA 78 of 2019 be dismissed.
The applicant pay the respondent’s costs of the application fixed in the sum of $3,200.
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 Scott & Munayallan 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 78 of 2019
File Number: SYC 59 of 2010
| Mr Scott |
Applicant
and
| Ms Munayallan |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 9 October 2019, Mr Scott (“the father”) seeks reinstatement of his appeal against parenting orders made by a judge of the Family Court of Australia on 15 August 2019. The father’s application for reinstatement of the appeal is opposed by Ms Munayallan (“the mother”).
The father filed a Notice of Appeal on 30 August 2019. Pursuant to r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”), a draft index to the appeal book was to be filed within 28 days of the father filing the Notice of Appeal, namely 27 September 2019. The father did not file a draft index to the appeal book by that date and accordingly, pursuant to r 22.13(3) of the Rules, the appeal was deemed to be abandoned.
The father now seeks the reinstatement of his appeal pursuant to r 22.44 of the Rules.
The principles that apply to such an application were set out by McHugh J in 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…
In considering such an application, the aim is to do justice between the parties. Generally speaking, the Court will look to the reasons for the failure to comply with the Rules, any delay in bringing the application and whether any prejudice flowed from the failure to comply with the Rules.
I bear in mind that a person who has the benefit of a regularly filed appeal should not, generally speaking, lose their right of appeal by reason of a failure to comply with a procedural step. Therefore, the merits of the proposed appeal are not relevant unless the Court is satisfied “that the appeal is so devoid of merit that it would be futile to extend time” (Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra v Krakouer”) per Brennan CJ and McHugh J at 517).
Background
Before turning to the merits of the appeal, it is necessary to set out some relevant procedural history.
The father’s application for reinstatement was initially listed before me on 7 November 2019.
In the course of the father’s submissions on that day, the father sought to demonstrate that he had a valid ground of appeal because he says that he was refused an adjournment of the proceedings before the primary judge, contrary to s 57 of the Legal Aid Commission Act 1979 (NSW), which requires the Court to adjourn proceedings where there is an extant appeal against a refusal of a grant of Legal Aid.
The material before the Court demonstrated that on 4 June 2019, the father was refused a grant of Legal Aid. The father, could not, however, demonstrate that he had lodged an appeal to the Legal Aid Review Committee and that he had drawn that appeal to the attention of the primary judge.
Accordingly, at the hearing of the application for reinstatement on 7 November 2019, the father sought and was ultimately granted, an adjournment to 21 November 2019 to be able to complete his evidence. An order was made that the father was to file and serve any further evidence and a written outline of his submissions on or before 18 November 2019.
The father did not comply with that order. At some time after 18 November 2019, the father attempted to file an affidavit but the Appeal Registrar refused to accept it.
Further, as a condition of the adjournment on 7 November 2019, the father agreed to pay the mother’s costs of that day in the sum of $1,200 on or before 14 November 2019. An order was made to that effect.
Once again, the father did not comply with that order. I will return to that in due course.
When the matter resumed before me on 21 November 2019, the father sought to rely on the affidavit that the Appeal Registrar had refused to accept for filing. The father had not filed any application for a review of the Appeal Registrar’s decision. The affidavit made a number of serious allegations against the mother including allegations that she fabricated evidence and forged emails. In those circumstances, it would have been most unfair on the mother to permit the father to rely on that affidavit and I refused the father leave to file it. In the end, two documents annexed to that affidavit were tendered without objection, namely, an Appeal Form against the refusal of a grant of Legal Aid and a portion of the transcript of the hearing before the primary judge on 17 June 2019 (pages 1 to 3, 16 to 20 and 24 to 27).
The father’s explanation for the delay in filing the draft index to the appeal book may be shortly stated as follows. In the last week of June 2019, the father’s father was admitted to hospital. After appearing to recover for a while, his condition deteriorated in mid-August 2019 and rapidly declined in September 2019. The father’s father died in September 2019.
I regard this as a sufficient explanation for not filing the draft index to the appeal book in accordance with r 22.13(2) of the Rules.
The father acted promptly in filing the present application for reinstatement.
The mother’s primary submissions in opposition to the father’s application for reinstatement is that the father’s appeal is not a genuine appeal but rather a further attempt simply to drag out the proceedings and that there is no genuine ground of appeal or ground of appeal that has any merit whatsoever.
Shortly stated, his Honour’s orders provided for the parties to have shared parental responsibility for their two children, the subject of the proceedings, save that the mother was to have sole parental responsibility for their health and education. The children were to live with the mother and spend five days a fortnight with the father.
There were, however, difficulties with the conduct of the proceedings before the primary judge. The primary judge recorded:
5.The [father] did not comply with any of the trial direction orders and accordingly at the commencement of the proceedings he had not filed any amended response or trial affidavit material.
6.It was foreshadowed by the [father] that he had prepared a document but that it was not affirmed until 19 June 2019 being the first day of the parenting hearing.
Nonetheless, the father was granted leave by the primary judge to rely on that affidavit (at [6]). The primary judge also had difficulties in ascertaining the orders that the father suggested were in the best interests of the children. Ultimately, his Honour drew inferences from the conduct of the proceedings to identify the orders proposed by the father.
The Grounds of Appeal
I now turn to the grounds of appeal. At the hearing on 21 November 2019, the father tendered a proposed Amended Notice of Appeal (Exhibit 4), which merely added some words to a few of the grounds of appeal outlined in the Notice of Appeal filed 30 August 2019 that were of little consequence and added two further grounds of appeal. Overall the grounds of appeal are not well drawn and are general, unparticularised and discursive.
The first proposed ground of appeal is that there was a reasonable apprehension that the primary judge was biased against the father (Ground 1). This ground does not say when, where or in what manner the primary judge was biased against the father. However, further grounds of appeal deal with the same issue and an indication of what the father relies on can be gleaned from them. Those grounds are:
11.[The primary judge] showed apprehend bias by not accepting the recommendation of the ICL … “for the parents to continue equal shared time with the children. The ICL drafted Consent Orders stating equal shared time. The equal shared time was in place between the parents since November 2014. [The father] had sole custody of the children for 2014 and the primary carer of the children since 2009.
12.[The primary judge] shown apprehend bias by not accepting the recommendation of the ICL and Dr [G] “for the parents to continue equal shared time with the children.
13.[The primary judge] did not act in the best interests of the children by not granted their wishes that they spend equal time with both parents. This was documented in the Family Report, that the children themselves want the 50/50 basis to remain, this was repeated by [the father] during cross [examination]. The orders did not take the Children needs into consideration. Your honour was bias against me and wanted to punish me for some injustice reason. But not only was honour was punishing me but was punishing, hurting and cause serve damage to my children. On the 18 August 2019 I told my children about variation of time, both my children could not stop crying and where emotionally destroyed. The court is supposed to act in the best interest of the children but is doing the complete opposite and not granting their best interest and their needs. My children said and begged me to fight against the variation. [The primary judge] has a personal disliking to the father which effected his decision by not acting in the best interest of the children under Section 66cc.
14.[The primary judge], shown apprehend bias, on the 21 June 2019 your honour ordered the that the mother can re-open her case and tender further documents, but will not allow nor apply the same order for the father.
…
27.Your honour acted Apprehend bias, against [the father]. As per paragraph 184 of your honours judgment, I completely deny this allegation, the mother has not provided any supporting evidence. I have not engaged in family violence. I have not committed any form of violence what so ever. I have not been convicted of any crimes! There was no documented evidence that was engaged in family violence.
28.The trial judge forfeited the advantage of judicial detachment, not adhered to each of the principles espoused in Michel v The Queen [2010] 1 WLR 879.
29.[The primary judge] has a personal disliking to the father which effected his decision by not acting in the best interest of the children under Section 60cc.
(Exhibit 4) (As per the original)
None of these grounds of appeal identify anything that is capable of establishing an apprehension in a “fair-minded lay observer” that the trial judge would decide the case on anything other than its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344). The mere making of a finding against the submissions of one party does not enable the drawing of an inference that there is an apprehension of bias.
The following paragraph of the primary judge’s reason for judgment was specifically referred to by the father in the grounds of appeal outlined above (Ground 27) and it simply states:
184.I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations of the [mother] that the father has engaged in family violence.
That is not a finding of the kind described by the father in the grounds of appeal outlined above.
The father was quite unable to take me to any material that indicated any support for these grounds of appeal or to identify, other by reference to the matters raised in the above grounds of appeal, that the primary judge disliked him or that this dislike could be linked to any of the findings set out in the primary judge’s reasons for judgment.
Ground 2 is that the primary judge denied the father procedural fairness and natural justice. Neither the ground of appeal nor the father’s oral submissions at the hearing of the application for reinstatement identified what this lapse in providing a fair hearing was said to be. Again, however, other grounds of appeal cast some light on this, as appears from the following:
9.The learned erred judge, did not provide the Adjournment (verbal application on the 17/06/19 and as per the formal [written] application on the 19/06/18) either under section 57 LEGAL AID COMMISSION ACT 1979 or the Law Society Pro Bono Scheme or based on the [father’s] medical condition. [The father] was involved in a 4 motor collision and had head injuries, [which] led him to be incapacitated and not able to prepare for that hearing. This caused [the father] not to complete an accurate Trail (sic) Affidavit, nor Submissions, nor Case Outline, nor Minutes of Order. [The father] was denied procedural fairness.
10.On the 19 June 2019, a formal written application was made to [the primary judge] to recue himself from hearing the parenting matter which your honour dismissed that application. [The primary judge] denied procedural fairness.
(Exhibit 4) (As per the original)
The father could not identify the material that was before the primary judge that would have justified an adjournment of the proceedings. Indeed, when faced with attempts to identify what material was before the primary judge in relation to the proposed adjournment, the submission became that the primary judge prevented the father from tendering other material on which he sought to rely. The only available piece of the transcript provided by the father was from 10.08 am on Monday, 17 June 2019 and consists only of pages 1 to 3, 16 to 20 and 24 to 27. None of those pages of the transcript identify any attempt made by the father to tender documents, although he did say at one stage that he had medical records (Transcript 17 June 2019, p.20, line 30).
In relation to Legal Aid, the father said that he was asking for “an adjournment, a small adjournment … under [s] 57 of the Legal Aid Commission Act [1979 (NSW)]” (Transcript 17.6.19 page 16 lines 43–44).
The father then added:
… I did apply for a Legal Aid application, your Honour, earlier this month. And it was refused, due to two circumstances, according to their rules – is the parenting and the property should be separated.
(Transcript 17 June 2019, p.17 lines 10–12)
Nowhere does the father refer to an appeal to the Legal Aid Review Committee in relation to the refusal of a grant of Legal Aid and he does not identify any passage where his Appeal Form was tendered at the hearing before the primary judge. Of course, only a very limited portion of the transcript had been obtained by the father.
The father relies on the Legal Aid Appeal Form tendered by him which refers to the next court date as being “17/06/19”. That document suggests that it was prepared before that date but there is no indication as to when it was filed. I cannot conclude, therefore, that it had been filed prior to 10.08 am on 17 June 2019 (Day 1 of the hearing before the primary judge) because there was no reference to it in the portion of the transcript tendered by the father at the hearing of the application for reinstatement. In any event, the father is quite unable to demonstrate where it was handed to the primary judge who can hardly commit an error by not taking into account something that was not drawn to his attention.
As to procedural fairness more generally, it is to be recalled that the primary judge permitted the father to rely on an affidavit that was filed on the first morning of the hearing. Also, although the father had not filed a Minute of Order, the primary judge nonetheless identified the father’s position in relation to the orders that he sought.
After having heard the father’s oral submissions at the hearing of the application for reinstatement, I am none the wiser as to what aspect of procedural fairness he was denied, other than to say that the primary judge refused to take his evidence, however as I have said, the portions of the transcript relied upon by the father do not demonstrate that to be so.
Under Ground 3, the father submits that there was a miscarriage of justice. Neither the grounds of appeal nor the father’s oral submissions at the hearing of the application for reinstatement say why this is so and it is impossible to take it any further.
Ground 4 is in the following terms:
The court failed to ask the father about the [mother’s] allegations. “The Court must:
a.inform the Respondent of the allegation;
b.ask the Respondent whether the Respondent wishes to admit or deny the allegation;
c.hear any evidence supporting the application;
d.ask the Respondent to state the response to the allegation;
e.hear any evidence for the Respondent; Astin & Harlow [2008] FamCAFC 66
(Exhibit 4) (As per the original)
As the form of the procedure and the case referred to by the father clearly identify, this procedure relates to contravention applications (Astin & Harlow [2008] FamCAFC 66). There were no contravention applications before the Court and this ground is entirely misconceived.
Grounds 4 to 8 simply assert that the primary judge erred in making orders for the children to live with the mother, travel overseas with the mother without specific restrictions and allow the mother to have sole parental responsibility for the children’s health and education. Further, these grounds assert that the primary judge erred by not making orders that the children spend “at least equal time with the father” and that the children’s passports be held by the Court.
These grounds of appeal simply state the father’s disagreements with the primary judge’s orders and do not identify any error by the primary judge.
Ground 15 seems to assert that during the hearing the primary judge misled the father by saying that he would keep in place the equal time arrangements but later changed his mind without giving the father the opportunity to respond. The father was unable to take the Court to any part of the transcript to establish that the exchange was as the father would have it and not for example a testing of the positions.
Ground 16 asserts that the orders made by the primary judge were obtained by fraud on the part of the mother. No fraud is identified but the new proposed Ground 30 does shed some light on the point. Ground 30 states:
The mother has committed perjury to the court and fraud associated with her evidence. There was many points of contradictions, false and fabrications in the [mother’s] evidence. [The primary judge] chosen to ignore it and show bias towards the mother. [Exhibit] 2 document has been altered by the mother. Family Law Rules 200 17.02 Section 1, (b) it was obtained by fraud or (e) (g) (h) and 17.02A (a) (b).
(Exhibit 4) (As per the original)
The oral submissions made by the father at the hearing of the application for reinstatement did not extend beyond a reference to Exhibit 2 which apparently was an email sent by the father to the mother. The father’s submission was that the mother had fraudulently altered the email. The primary judge set out the content of this email at [73] as follows:
From: [the father]
Sent: Friday, December 28, 2018 10:15:54 am
To: [the mother]
Cc: [the child]
Subject: [the mother], your mother affidavit
[The mother],
You are truly an evil person! You write and signed this affidavit to kick your own children out of their … home.
I will show the girls this affidavit so they can see their mother doesn’t care about her own children feelings, and where they live. That their mother is full of evil and loves money more than her children.
The children where heartbroken that they had to leave the house and friends.
You are not mentally fit to be their mother.
In the course of oral submissions at the hearing of the application for reinstatement, the father sought to tender another version of this email which was quite different and unremarkable in tone. He said that the version which he sought to tender to me was the one that he in fact sent and the version which had been recorded by the primary judge had been altered by the mother. When asked what evidence there was that the version of the email that he sought to tender was the one sent by him and not the version recorded in the primary judge’s reasons for judgment (at [73]), the father said that he did not have any evidence and that he would need to engage an expert of some kind. In the absence of such evidence, there was no point to the tender by the father and I declined to receive the document.
However, further light on this question can be shed by his Honour’s reasons for judgment at [74], which recorded the father’s answers to questions asked about the email in the form recorded by his Honour and set out above. In those answers the father did not suggest that the email was a forgery and his answers proceeded on the basis that the email was as it was put to him and recorded by the primary judge. There is, accordingly, no merit in this ground of appeal as no other forgeries or fabrications were identified in the course of the father’s submissions.
The father did point out what he said were contradictions in aspects of the mother’s evidence but I understood that they were contradictions between what the mother had said at the trial and what she had said in earlier affidavits which were not subject to the proceedings before the primary judge. Of course, they could have been the subject of cross-examination and perhaps were (noting that the complete transcript of 17 June 2019 was not available at the hearing of the application for reinstatement), however, merely because there are some contradictions in a person’s evidence does not mean that it cannot and must not be accepted.
Grounds 18 and 22, expressed in different ways, suggest that the primary judge erred by accepting the mother’s evidence on particular issues over that of the father’s. The mere fact that a primary judge prefers evidence from one party to that of another on a particular issue does not, of itself, establish error. The father did not submit, for example, that the findings were “glaringly improbable” or “contrary to compelling inferences” or “incontrovertible facts” (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at 559).
Ground 26 relates to the primary judge’s manner during the questioning of the family consultant. Even if the questions were posed with the use of a phrase such as “would you agree” (at [178]) that does not identify error by the primary judge.
The remaining grounds of appeal (Grounds 17, 19, 21, 24 and 25) deal with factual findings made by the primary judge that the father says were erroneous. Some of these are simply mistaken. For example, contrary to Ground 20, the primary judge did record the father’s address at [51]. The father referred only to his Honour’s reasons for judgment where the primary judge described the father’s residence as being the “subject of some mystery” (at [24]).
Similarly, in Ground 23, the father submits that the primary judge erred at [89] of the reasons for judgment which simply records an admission made by the father and a passage from the paternal grandfather’s affidavit filed 11 June 2019.
It follows that I am satisfied that there is no arguable ground of appeal. It would, therefore, be futile to permit the appeal to proceed and to do so would inflict an injustice on the mother (Jackamarra v Krakouer at 517).
Conclusion
As has been demonstrated, in the course of the conduct of this application and the hearing before the primary judge, the father pays no regard to orders of the Court. Indeed, during the hearing of this application the father insisted on referring to the affidavit which he had sought leave to file and had been refused, as if it were before the Court, on many occasions, despite being repeatedly informed that he could not do so. I have absolutely no confidence that this appeal, if reinstated, would be conducted in a way that would not see the matter returning to Court again on procedural issues or be completed in anything like an efficient and proper manner.
I also take into account, the failure of the father to comply with the costs order made on 7 November 2019 to which he consented, as the price for an adjournment to prepare his case properly. The father’s response to his failure to comply with this costs order, which was to the effect that the mother could get a certificate of some kind from the Attorney-General, was dismissive of the order and his consent to it. The only view that can be formed is that the father was prepared to consent to that order only in order to obtain an adjournment but did not care very much about whether it was met or not.
Taking all these matters into account, the father’s application for reinstatement will be dismissed.
Costs
In these circumstances, the mother sought an order that the father pay her costs of the application for reinstatement assessed to be in the sum of $3,200. It is an entirely unremarkable sum and it would not be appropriate to put the parties and the Court to the cost and trouble of taxing it. There will be an order to that effect.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 16 December 2019.
Associate:
Date: 16 December 2019
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