SEARLE & MELLOR

[2016] FamCAFC 239

FAMILY COURT OF AUSTRALIA

SEARLE & MELLOR [2016] FamCAFC 239

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file the appeal books on time – Where the applicant’s solicitor incorrectly diarised the date the appeal books were due – Consideration of principles in Gallo v Dawson (1990) 93 ALR 479 at 480 – Application allowed.

FAMILY LAW – APPEAL – EXPEDITION – Where the appeal had been expedited – Where the applicant failed to comply with a procedural order and the appeal was deemed abandoned – Where the appeal has been reinstated – Where the orders under appeal have been stayed – Order for expedition revoked. 

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) rr 22.21, 22.44

Gallo v Dawson (1990) 93 ALR 479
Jess v Scott (1986) 70 ALR 185

APPLICANT: Ms Searle

RESPONDENT: Mr Mellor

FILE NUMBER: PAC 1613 of 2014

APPEAL NUMBER: EA 85 of 2016

DATE DELIVERED: 17 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 17 November 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 17 May 2016

LOWER COURT MNC: [2016] FCCA 1745

REPRESENTATION

SOLICITOR FOR THE APPLICANT: CBD Legal

SOLICITOR FOR THE RESPONDENT: Farah Lawyers

Orders

1. Pursuant to r 22.44 of the Family Law Rules 2004 (Cth) the appeal EA85 of 2016 is reinstated.

2. The order for expedition made on 6 October 2016 is revoked.

3. The orders made on 6 October 2016 are varied as follows:

   a.Orders 5 and 7:  delete ‘2 November 2016’ and insert in its place ‘20 December 2016’.

   b.Order 8:  delete ‘2 November 2016’ and insert in its place ‘20 January 2017’; and

   c.Order 9:  delete ‘11 November 2016’ and insert in its place ‘24 February 2017’.

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 Searle & Mellor 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 85 of 2016
File Number: PAC 1613 of 2014

Ms Searle

Applicant

And

Mr Mellor

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 10 November 2016 Ms Searle (“the applicant”) seeks an order that the appeal be reinstated and that further directions be made for the filing of appeal books and Summary of Argument. 

2. The application comes about because orders were made on 6 October 2016 that appeal books be filed on or before 2 November 2016. They were not filed on that day and pursuant to r 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”) the appeal was deemed to be abandoned. The application is brought pursuant to r 22.44 of the Rules which empowers the court to reinstate the appeal.

3. In considering whether or not to reinstate the appeal the court will have regard to what was said by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480. The duty of the court is to act in the interests of justice noting that in the case of a reinstatement an appeal has been regularly filed and ought not to be effectively dismissed for mere procedural irregularities.

4. As I have said, the orders for the filing of appeal books were made on 6 October 2016.  Those orders were made in the context of the appeal being brought on urgently and indeed it was listed for hearing on 17 November 2016. 

5. The explanation for the failure to file the appeal books is simple.  The solicitor acting for the applicant, who is presently acting pro bono, incorrectly diarised the date for the filing of the appeal books as 11 November 2016 and not 2 November 2016.  There is some force in the submission of Mr Mellor (“the respondent”) that the filing of the appeal books only six days before the hearing of the appeal, and on the same day that the respondent was to file his Summary of Argument, would indicate that something odd was afoot.  Nonetheless that apparently was not realised by the solicitor for the applicant.  However, it is also well established that the errors and omissions of solicitors should not likely be taken to affect their client’s substantive rights: Jess v Scott (1986) 70 ALR 185. The respondent did not point to any prejudice that would flow from the reinstatement and I propose to make orders reinstating the appeal.

6. As I have said, on 6 October 2016 I made an order expediting the appeal. Of particular significance in making that decision was the then failure of the primary judge to hear and determine an application for a stay of the relevant parenting orders. 

7. The issue that had been before the primary judge was whether or not the time the children were to spend with the respondent should be supervised or not.  The order which is the subject of the appeal was for unsupervised time.  On 20 October 2016 Judge Newbrun stayed his earlier orders on the condition that the children spend time with the respondent supervised by and in the presence of his current partner.  Thus the condition attached to the stay provides for the supervision the applicant sought, albeit not by the person she would prefer to be the supervisor.  

8. Urgent hearing dates to the appeals division are in very short supply. Given the fact that the applicant has already been given but failed to take advantage of a hearing date, and given the terms of the stay, I am of the view that there is no longer a justifiable basis for expediting the matter and the expedition order made on 6 October 2016 will be revoked. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 17 November 2016.

Associate: 

Date:  29 November 2016