Seaward and McDuff
[2018] FamCAFC 20
•13 February 2018
FAMILY COURT OF AUSTRALIA
| SEAWARD & MCDUFF | [2018] FamCAFC 20 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Where the appeal was deemed abandoned because the applicant failed to file a draft index to the appeal books in the prescribed time – Where the failure was due to the applicant’s mistaken belief that he had to file appeal books and not a draft index – Where it cannot be said that the grounds of appeal are devoid of merit – Application allowed. |
| Family Law Rules 2004 (Cth) r 22.13 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarrav Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Mr Seaward |
| RESPONDENT: | Ms MacDuff |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | SYC | 2177 | of | 2011 |
| APPEAL NUMBER: | EA | 116 | of | 2017 |
| DATE DELIVERED: | 13 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 1 February 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 October 2017 |
| LOWER COURT MNC: | [2017] FamCA 848 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
Appeal EA116 of 2017 is reinstated.
The time for filing a Draft Appeal Index is extended up to and including 15 February 2018.
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 Seaward & MacDuff 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 116 of 2017
File Number: SYC 2177 of 2011
| Mr Seaward |
Applicant
And
| Ms MacDuff |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 18 December 2017, Mr Seaward (“the applicant”) seeks the reinstatement of his appeal against orders of Le Poer Trench J made on 13 October 2017. On that day, after an eight day hearing between the applicant and Ms MacDuff (“the respondent”), the primary judge ordered that the respondent have sole parental responsibility for the two children the subject of the proceedings. The children were to live with the mother and spend no time with the father.
These orders stand in stark contrast to those sought by the applicant. Accepting that he had not seen the children for some time, he proposed that he and the children undergo therapeutic intervention and that the children spend supervised time with him until the end of 2017. He then proposed that from the commencement of 2018 the parties would have equal shared parental responsibility for the children, who would spend equal time with each parent.
Background
The parties separated in November 2006.
Parenting proceedings were commenced in 2011. Following a contested hearing, on 19 June 2013 Ryan J made orders for the children to live with the mother, who was to have sole responsibility for them. The orders provided for the father to spend three hours each calendar month with the two younger children, supervised at a contact centre and allowed for the eldest child to spend time or communicate with the father in the event she chose to do so.
Thus the parties have been involved in litigation in relation to their children for nearly seven years, including two extensive final hearings.
Application for reinstatement
The applicant filed a Notice of Appeal against the orders of Le Poer Trench J on 10 November 2017. Accordingly, pursuant to r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) he was obliged to file a draft index to the appeal books on or before 8 December 2017. That rule provides:
22.13Filing draft index to appeal books
…
(2)The appellant must file a draft index to the appeal book within:
(a)28 days after:
(i)filing the Notice of Appeal; or
(ii)the date when the reasons for judgment that relate to the order the subject of the appeal are issued (being the date of the certificate of the Associate to the Judicial Officer that appears on the published reasons for judgment); or
(b)if the court extends the period mentioned in paragraph (a) - the period ordered by the court.
…
On 7 December 2017, thinking that he was due to file appeal books that day, the applicant attempted to file an application seeking to have the time for the filing of appeal books extended. That application was not accepted by the Registry because no orders had been made for the filing of appeal books and consequently there was no time which could be extended. The applicant engaged in some correspondence with the Registry on that topic.
However, he failed to file the draft index to the appeal books on 8 December 2017 and by operation of r 22.13(3) of the Rules his appeal was deemed to be abandoned. The present application for the reinstatement of the applicant’s appeal was filed just a few days later.
The application is opposed by the respondent. The Independent Children’s Lawyer appeared but neither consented to nor opposed the application.
The principles to be applied in this case are set out in the well-known case of 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.
It is important to observe that the above remarks were made in the context of an application to extend time in which to file a Notice of Appeal. Nonetheless, they are relevant to this matter (Rand & Rand [2009] FamCAFC 88 at [16]).
The hearing of such an application involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequence for the parties of the grant or refusal of leave and the merits of the appeal. The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the rules will work an injustice.
In the present case the applicant’s evidence was that he was mistaken about the procedure to be followed because he confused the obligation to file a Draft Appeal Index with the obligation to file appeal books.
As I have already observed, he acted on that mistaken belief within the time required to take the next step. However, because the next step taken by the applicant was mistaken, his appeal was deemed to be abandoned.
I consider this to be a reasonable explanation for the applicant’s failure to file a Draft Appeal Index within the prescribed time. The delay was minimal and the respondent was unable to point to any particular prejudice that would flow from reinstatement of the appeal.
The respondent submitted that the application should not be granted because:
·the applicant was an experienced litigator who had acted in person for some time, including filing and prosecuting appeals in the Family Court of Australia and the Supreme Court of New South Wales;
·there were outstanding costs from earlier costs orders made in her favour;
·as the proceedings between the parties have been on foot since 2011 and involved two contested hearings, it would be in the best interests of the children for the proceedings to be ended now;
·the applicant has a poor history of complying with timetables because he has needed extensions of time on at least two occasions in earlier appeals; and
·the respondent will risk losing her employment if she needs to keep coming to court.
I take all these matters into account.
It is, however, necessary to point out that the applicant has right of appeal under the Family Law Act 1975 (Cth) and exercised that right within the prescribed time. In Jackamarrav Krakouer (1998) 195 CLR 516 (“Jackamarra”) at 519–520 Brennan CJ and McHugh J said:
4.These remarks of Lord Denning were made in the context of an application for an extension of time to lodge an appeal. In that class of case, the respondent to the application has a vested right to retain the judgment, the subject of the appeal. To grant the application for an extension of time is to put at risk a vested right of the respondent. When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified. The court is dealing with a pure procedural question — should time be extended? The merits of the appeal do not furnish the criterion for granting or refusing an extension. The appeal is already filed in the court. In most, if not all cases, concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach, and most importantly whether the respondent or the administration of the court's business would be prejudiced by granting the application.
(Footnote omitted)
In this case the appeal was deemed to be abandoned because the applicant failed to take a procedural step in a regularly filed appeal. The failure to do so is usually, of itself, insufficient to deny an appellant the pursuit of his or her appeal.
Nonetheless it is necessary to consider the merits of the appeal. In doing so, it is important to recognise the caution expressed by the High Court in Jackamarra at 521–522 because when hearing applications of this kind, the Court will normally not have before it all of the material which it would have if it was hearing the appeal itself.
The applicant relies on 49 grounds of appeal. The sheer number of grounds immediately raises concerns about their cogency. They are repetitive and, in some instances, obviously misconceived. Nonetheless, having regard to the nature of the orders made, which I have discussed earlier, I am not in a position to say that the grounds of appeal are so devoid of merit that the appeal would be futile.
Taking all these matters into account, I am satisfied that the appeal should be reinstated.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 13 February 2018.
Legal associate:
Date: 13 February 2018
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