SCVG & KLD (No 2)
[2016] FamCAFC 23
•24 February 2016
FAMILY COURT OF AUSTRALIA
| SCVG & KLD (NO. 2) | [2016] FamCAFC 23 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where final parenting orders were made after ten years of litigation – Where the final orders provided for no face-to-face contact between the father and the children – Where the trial judge ordered that the father be restrained from bringing further parenting applications without leave – Where the father’s proposed Notice of Appeal was filed seven months out of time – Where the father contends the delay was caused by his involvement in multiple other proceedings – Where the proposed appeal is not futile but the reason for the delay is not adequate and the mother and children would suffer prejudice if the application is allowed – Application dismissed. FAMILY LAW – APPEAL – Leave to appeal – Application to review a decision of a Registrar – Where the father was ordered to pay the mother’s costs in previous proceedings – Where those costs were assessed by a Registrar pursuant to Rule 19.31 of the Family Law Rules – Where there was no objection to the Registrar’s preliminary assessment – Where the costs order was made in accordance with the Rules – Where no application was made to a judge for a review of the Registrar’s decision – Where the application is incompetent – Application dismissed. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) rr 19.23, 19.26, 19.29, 19.30, 19.31, 19.38, 19.56, 22.03 |
| Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Gallo v Dawson (1990) 93 ALR 479 McIntyre and McIntyre (1994) FLC 92-468 McMahon and McMahon (1976) FLC 90-038 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | SCVG |
| RESPONDENT: | KLD |
| FILE NUMBER: | SYC | 4380 | of | 2008 |
| FIRST APPEAL NUMBER: | EA | 107 | of | 2013 |
| SECOND APPEAL NUMBER: | EA | 174 | of | 2015 |
| DATE DELIVERED: | 24 February 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 3 November 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 February 2015 |
| LOWER COURT MNC: | [2015] FamCA 110 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Messner |
| SOLICITOR FOR THE RESPONDENT: | MacPhillamy’s Lawyers |
Orders
The Application in Appeal EA 174 of 2015 filed on 15 October 2015 for an extension of time to file a Notice of Appeal against the orders of the Honourable Justice Cronin made on 27 February 2015 is dismissed.
The Application in Appeal EA 107 of 2013 filed on 9 October 2015 for leave to seek a review of a Costs Assessment Order made on 9 October 2014 is dismissed.
The applicant is to pay the respondent’s costs of and incidental to the applications, such costs to be agreed or assessed and to be paid within twenty eight (28) days following such agreement or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 107 of 2013; EA 174 of 2015
File Number: SYC 4380 of 2008
| SCVG |
Applicant
and
| KLD |
Respondent
REASONS FOR JUDGMENT
By an Application in an Appeal filed on 15 October 2015, SCVG (“the father”) seeks an extension of time in which to file a Notice of Appeal against parenting orders made by Cronin J on 7 February 2015.
He further seeks leave to review a Costs Assessment order made by a Registrar on 9 October 2014.
In response, KLD (“the mother”) argues that in neither case should time be extended. In respect of the proposed appeal against the orders of Cronin J, in the event that an extension of time to appeal was granted, the mother sought an order that the father provide security for her costs in relation to the appeal in the sum of $40,000. That application was stood over for consideration at a later time as the father was not then in a position to meet it.
The parties are parents of two children, who were born in 2002 and in 2004 (“the children”). The parties separated when the oldest child was about two years old and the youngest was a baby. They have been litigating about the children since that time.
After a hearing on parenting issues conducted over five days, on
27 February 2015 Cronin J made orders which discharged all extant parenting orders, provided for the mother to have sole parental responsibility for the two children and that they live with her. His Honour ordered that the children have no face to face time with the father but that he be permitted to speak to the children each Sunday evening and to send letters, cards and gifts.
His Honour further ordered that pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”) the father be restrained from bringing any application in relation to the children without the prior leave of a judge of the Family Court.
Before his Honour’s orders came into effect, the parties had equal shared parental responsibility for the children although the father had not spent time in the company of the children for some two or more years.
His Honour further ordered that any application for costs arising out of the proceedings before him were to be filed and served no later than
16 March 2015.
The application for extension of time to appeal
The application seeking an extension of time in which to appeal was filed on
15 October 2015, almost seven months after the time prescribed by the Family Law Rules 2004 (Cth) (“the Rules”) for the filing of an appeal had elapsed. Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made.
The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 and in the judgment of McHugh J at 480, his Honour said:
… 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. 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. 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. 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. 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…
(Citations omitted)
As part of a consideration of the application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that before an applicant is denied the right to have his or her appeal heard, it must be clearly shown that the appeal would fail.
This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the court on the application.
I could not find that the father’s appeal was so entirely devoid of merit that to grant an extension of time, if otherwise appropriate, would be futile.
Explanation for the delay
In his affidavit sworn on 15 October 2015 and filed in support of the application, the father contended that in the 28 day period following the orders of Cronin J, although he prepared a draft notice of appeal, he was not able to complete it or file it because he first needed to engage and brief counsel to respond to a costs application made by the mother in relation to the hearing before his Honour. It seems that counsel engaged by him was unable to meet the costs application or complete the Notice of Appeal within the time period. He continued:
4. Since that time I have been busy responding to the judgement of Judge Scarlett which was finally delivered on 30 April 2015…in the Child Support matter in the Federal Circuit Court, for which an Appeal was filed as a self-represented litigant because my solicitor and counsel in that case were both unavailable at that time.
5. I also had to work on the preparation of, and procedural hearing for, an appeal book index and also a stay application which was granted by Judge Scarlett on 22 July 2015, and the preparation of both the Appeal Books and the Contested Appeal books which were filed on 18 September 2015.
6. I then also had to work on a response to new proceedings commenced by the mother in the Child Support Agency to force me to pay 100 percent of private school fees and then to respond to her objection when that application was rejected by the CSA.
7. I also had to prepare and file the Notice of Appeal against the Order for payment of indemnity costs made by Judge Cronin on 20 August 2015 and the Application in a case to stay that cost order.
8. I then also had to prepare the Appellant’s Summary of Argument in the Child Support appeal case by 30 October 2015, which was filed and served today.
It seems that having attended to these matters the father was then able to complete the Notice of Appeal to appeal against the orders of Cronin J.
In his oral submissions, the father further said that the proposed grounds of appeal against Cronin J’s orders were complex and he was not prepared to file them until he was satisfied that they were appropriate. Counsel for the mother observed that at the end of the grounds is appended the notation: “17. The father reserves the right to amend the grounds of appeal”, clearly indicating that the father was aware that this was a course open to him.
Given the broad sweep of the litigation in the Family Court in which the father has been involved, including appeals to the Full Court, it could not be said that he was unaware of the prescribed time limits. That the father chose to prioritise the work on his other pieces of litigation in preference to filing that Notice of Appeal in the parenting matter was a matter for him. It is not reasonable however for him to disregard the time limit imposed for the filing of that notice until a time most convenient to him.
I do not regard his explanation for the delay as being reasonable and of itself is sufficient to otherwise call for the application to be dismissed.
Prejudice to the mother
The father argued that there was no prejudice to the mother in his failure to observe the prescribed time limits because, he said, the mother and children could continue to get on with their lives.
At the heart of the proceedings before Cronin J lies the best interests of the children and whether they will have ongoing face to face time with the father. The children are now 13 and 11 years old. They were interviewed by a Family Consultant for the purposes of the preparation for a report for the proceedings ultimately heard by Cronin J. They could not help but be aware of the litigation and that the proceedings concerned, in part, time to be spent by them with their father. I reject the father’s bald statement that no prejudice accrues to the mother (and children) by reason of his delay.
Lest it be thought that delay beyond the prescribed time limit is no more than a mere technicality, it is not. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at page 8, McHugh J said apropos the limitation periods imposed for the commencement of civil proceedings, which is entirely apposite here:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods.
…
The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”.
…
Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties. The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one.
(Citations omitted).
I accept however that if the application is not granted there will be prejudice to the father because he will not be able to challenge his Honour’s orders which provide for his future relationship with the children.
However, I am of the view that by reason of the delay, the inadequate explanation for that delay and the undoubted prejudice to the mother and by implication the children, no extension of time should be granted. The application for an extension of time in which to bring an appeal against the orders of Cronin J will be dismissed.
Application for leave to review a decision of a Registrar
On 25 March 2014 the father’s appeal against orders of Faulks DCJ was dismissed and he was ordered to pay the mother’s costs of and incidental to the appeal. Those costs were ordered to be agreed or, failing agreement, to be assessed.
On 9 October 2014 pursuant to Rule 19.31 of the Rules the costs were assessed by a Registrar to be $19,670.00.
The father neither sought to review the Registrar’s order nor sought a stay of the operation of her order prior to filing the instant application on
9 October 2015 in which he seeks:
1. That the Applicant is granted leave to apply to review the Registrar’s order dated 9/10/14
2. That the Registrar’s order be stayed pending the outcome of the review.
Part 19.6 of the Rules and following provide for the process of assessing costs. The Rules require that the party seeking the costs is to provide an itemised assessment of the costs sought on the other party. Where a party disputes the claimed costs it is necessary to file a notice disputing the costs which is to be served on the party claiming the costs (Rule 19.23)
The process of assessment of the claimed costs lies in Rule 19.26 which provides that on receipt of an itemised costs account and a notice disputing the account, the Registrar must, inter alia, fix a date for a preliminary assessment. At the preliminary assessment the Registrar must, in the absence of the parties, make a calculation of the amount of the costs which, if the costs were to be assessed, would likely be the cost order made (Rule 19.29).
Rule 19.30 provides:
Objection to preliminary assessment amount
(1) A party may object to the preliminary assessment amount by:
(a) giving written notice of the objection to the Registrar and the other party; and
(b) paying into court a sum equal to 5% of the total amount claimed in the itemised costs account as security for the cost of any assessment of the account;
within 21 days after receiving written notice of the preliminary assessment amount.
…
Rule 19.31 provides:
If no objection to preliminary assessment
If:
(a) a Registrar does not receive a notice of objection under paragraph 19.30(1)(a); and
(b) an amount as security for costs is not paid under paragraph 19.30(1)(b);
the Registrar may make a costs assessment order for the amount of the preliminary assessment amount.
Clearly then, the Registrar’s preliminary assessment was not subject to a notice of objection pursuant to the Rules and thus the order was made pursuant to Rule 19.31.
A costs assessment order may be set aside following an application made by the person who is liable to pay within 14 days after receiving the costs assessment order (Rule 19.38(2)). The order may be set aside in accordance with the provisions of Part 19.8, which provides for the process of review of such an order. A party may apply for a review of the Registrar’s decision, which must be heard by a judge (Rule 19.56). It seems that no application was made to a judge for a review of the Registrar’s decision.
In explanation for the delay in seeking to review the order, the father contends in his affidavit filed in support of the application on 9 October 2015, that in the time immediately after the costs order was made, while he had prepared a draft “Notice of Appeal” it was not able to be completed or filed:
3. …due to the need to prepare for the 5 day trial in my parenting case which was listed for October 2014 before Cronin J and was then postponed to 2 February 2015 due to the sudden serious illness of my Counsel … .
The father then repeats the matters to which he referred in explanation for the delay in bringing the appeal against the orders of Cronin J and which are unnecessary to be repeated.
In McIntyre and McIntyre (1994) FLC 92-468, the wife also sought an extension of time in which to review the decision of a Registrar. There the Full Court considered the appropriate factors to be taken into account in the exercise of its discretion to grant such relief. The Full Court cited the decision of Tormsen and Tormsen (1993) FLC 92-392 and determined at 80,858 that:
…so far as the discretion to extend time to review a decision of a Registrar is concerned, the better analogy is with the discretion that has to be applied in relation to an application to appeal out of time against a decision of a Judge.
The principles relevant to the exercise of the discretion for leave to appeal out of time against a decision of a judge were outlined in McMahon and McMahon (1976) FLC 90-038 and include whether there are adequate reasons to explain the delay, whether there is a substantial issue to be raised on appeal and whether any hardship or injustice would be caused to the respondent that cannot be compensated by orders, for example as to costs. However in McIntyre, the Full Court held, again following Tormsen, that these factors “cannot be regarded as having the force of legislative direction – they are all merely factors to be considered in determining the outcome that the interests of justice would require.” The fundamental issue in an application for an extension of time to appeal is:
…whether this will enable the Court to do justice between the parties, and that in that connection the Court must weigh the right which the respondent to the application prima facie has to retain the benefit of the judgment once the appeal time has expired and the desirability that there be a finality of litigation.
Clearly too, the principles enunciated in Gallo v Dawson, to which reference has already been made, are squarely relevant to this issue. The explanation for the delay of twelve months in seeking leave to review the decision is insufficient and I am not satisfied that this is a case in which an extension of time is required to do justice between the parties. Both applications will thus be dismissed.
Costs
At the conclusion of the hearing of the applications, submissions were sought as to costs. The mother sought a costs order in the event that either application was unsuccessful.
The question of costs in matters such as these is governed by the provisions of s 117 of the Act. In this case, the father has been wholly unsuccessful in both applications and it is appropriate that he should be ordered to pay the mother’s costs of and incidental to the applications.
Counsel for the mother sought an order for $7,500 reflecting the mother’s costs of the application. On balance, it is more appropriate that any order for costs be either agreed or assessed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
24 February 2016.
Associate:
Date: 24 February 2016
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