SELLINK & SELLINK
[2017] FamCAFC 30
•1 March 2017
FAMILY COURT OF AUSTRALIA
| SELLINK & SELLINK | [2017] FamCAFC 30 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – reinstatement – where an appeal against final parenting orders was deemed abandoned when appeal books were not filed in accordance with procedural orders – where the mother alleged that this failure was because of negligence by her former solicitor – where the mother took all reasonable steps to rectify the default upon the appeal being abandoned – where the father did not challenge these facts – where counsel for the mother conceded the notice of appeal had limited prospect of success and expressed an intention to file an amended notice of appeal – where the proposed amended grounds of appeal contained real issues to be determined – appeal reinstated. FAMILY LAW – COSTS – where counsel for the mother foreshadowed an application for costs against the former solicitor – where there may be issues sought to be argued by the solicitor in respect of any costs order – where the question of costs for this application was reserved for the appeal hearing – costs reserved. |
| Family Law Act 1975 (Cth), s 117(2A) Family Law Rules 2004 (Cth), rr 22.09, 22.21 |
| Bernieres and Anor & Dhopal and Anor [2016] FamCAFC 149 |
| Gallo v Dawson (1990) 93 ALR 479 |
| Joshua & Joshua (1997) FLC 92-767 |
| Malak & Mairie [2016] FamCAFC 112 |
| Molloy & Molloy [2016] FamCAFC 264 |
| Sinnott & Firth (No 2) (2013) 51 Fam LR 28 |
| Tormsen & Tormsen (1993) FLC 92-392 |
| APPLICANT: | Ms Sellink |
| RESPONDENT: | Mr Sellink |
| INDEPENDENT CHILDREN’S LAWYER: | Patrick Dooley |
| FILE NUMBER: | BRC | 7638 | of | 2013 |
| APPEAL NUMBER: | NA | 13 | of | 2016 |
| DATE DELIVERED: | 1 March 2017 |
| PLACE DELIVERED: |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 1 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT DATE OF ORDERS: | 4 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bunning |
| SOLICITOR FOR THE APPLICANT: | Hopgood Ganim |
| FOR THE RESPONDENT: | Mr Rosen |
| SOLICITOR FOR THE RESPONDENT: | Rosen Lawyers |
| FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not participating in Appeal |
Orders
The appeal, number NA 13 of 2016, commenced by Notice of Appeal filed 29 February 2016 be reinstated forthwith.
On or before 4.00 pm on 29 March 2017 the appellant mother cause to be filed in the Brisbane Registry:
(a) An Amended Notice of Appeal; and
(b)Four copies of the appeal books prepared in accordance with the settled appeal index attached to the orders made by Registrar Kane on 30 May 2016; and
(c)The certificate pursuant to rule 20.20(2) of the Family Law Rules 2004 (Cth).
On or before 4.00 pm on 29 March 2017 the appellant mother cause to be delivered to each of the other parties to the appeal two copies of the appeal books and a copy of the said certificate.
Pursuant to rule 22.21 the appeal will be taken to be abandoned if the appellant mother fails to comply with any of the requirements of Orders 2 and 3 hereof.
That the appellant mother file and serve the Summary of Argument and List of Authorities upon which she wishes to rely by 4.00 pm on Thursday 26 April 2017.
That the respondent father file and serve the Summary of Argument and List of Authorities upon which he wishes to rely by 4.00 pm on Thursday 24 May 2017.
That the Independent Children’s Lawyer file and serve the Summary of Argument and List of Authorities upon which he wishes to rely by 4.00 pm on Thursday 21 June 2017.
In the event that, upon compliance with Order 2, it be considered that the appeal will take more than half a day, the appellant mother shall cause the Appeals Registrar to be notified of that fact and of her new estimate by not later than 4.00 pm on 28 June 2017.
That the appeal be listed for hearing in the next available Brisbane Full Court sittings, consequent upon compliance with the orders otherwise made herein.
The costs of and incidental to the Application in an Appeal be reserved to the Full Court hearing the appeal so as to be heard contemporaneously with an application that the mother’s former solicitor, Mr X of Firm X pay personally any such costs as might be ordered to be paid by her of and incidental to the Application and Appeal.
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 Sellink & Sellink 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 BRISBANE |
Appeal Number: NA 13 of 2016
File Number: BRC 7638 of 2013
| Ms Sellink |
Appellant
And
| Mr Sellink |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The mother of two children the subject of parenting orders made by Judge Howard seeks to reinstate an appeal against those orders deemed abandoned by reason of her admitted non-compliance with directions made in respect of the appeal. Rule 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”) deems an appeal abandoned if the appellant fails to file the appeal books as directed.
The central thrust of the mother’s application is that the default occurred through negligence on the part of her then solicitors who, she asserts, had at all times instructions to prosecute the appeal on her behalf. The mother deposes to steps taken by her in that respect with the Legal Services Commission and in respect of a civil claim.
By way of contrast, her sworn evidence and the written and oral submission made on her behalf by her now counsel assert that, upon becoming aware of the subject default, the mother has taken all steps that could and should be reasonably expected of her, including the filing of the instant application.
Neither the written nor oral submissions made on behalf of the father (who, through his solicitor opposes the application) seek to challenge those facts. The mother annexes to her affidavit emails passing between the mother and her former solicitors which either themselves confirm her account or from which a confirmatory inference of her account can be drawn. The father’s solicitor does not submit to the contrary.
Applicable Principles
The principles applicable to an application of this type have been traversed in decisions of both the High Court and the Full Court of this court. They are well settled and familiar; the court’s concern is remedying or preventing injustice. In seeking to achieve that end, the court is given a discretion.
A number of factors have been identified in the authorities as relevant to the exercise of that discretion. However, the failure to establish particular factors informing the discretion is not a bar to its exercise; the fettering of the wide discretion given to the court to remedy genuine injustice wreaked by strict adherence to the rules being both undesirable and not warranted by any legislative direction (Tormsen & Tormsen (1993) FLC 92-392).
In Joshua & Joshua (1997) FLC 92-767, Lindenmayer J, referring to McHugh J’s well‑known and frequently-cited judgment in Gallo v Dawson (1990) 93 ALR 479, said at 84,440:
… the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation …
More recent examples of statements of similar effect can be seen in Bernieres and Anor & Dhopal and Anor [2016] FamCAFC 149, per Strickland J; Malak & Mairie [2016] FamCAFC 112, per Strickland J; and Molloy & Molloy (2016) FamCAFC 264, per Ryan J.
What Issues Arise On The Prospective Appeal?
The current Notice of Appeal contains six grounds. They are expressed in general terms and in the main direct themselves to questions of weight. The difficulties confronting an appellant from a discretionary decision when the challenge pertains to the weight attached to evidence are well known and need not be repeated here.
In his written submissions on this application, counsel for the applicant concedes that the Notice of Appeal in its current form contains grounds which have limited prospects of success. I took that to be a reference predominantly to the issue to which I have just referred, but, it is also a reference to the omission from the existing Notice of Appeal of grounds central to the challenge now sought to be made by the mother in the hands of those who now represent her.
With that in mind, counsel foreshadows the filing of an Amended Notice of Appeal. The Amended Notice of Appeal intended to be filed will also contain six grounds and in broad summary they are these: Ground 1 refers to the manner of the proceedings which occurred before his Honour. I will refer to that in a little more detail below, but for present purposes, the central contention in both that proposed ground and the second proposed ground is that the mother was not afforded procedural fairness by reason of the procedure adopted by his Honour both in setting the matter down for a hearing at what was described as a “trial callover” and what occurred in the mother’s absence at that “trial callover”.
Is It Fairly Arguable That The Appeal has Merit?
It is said centrally, and intended to be pleaded as a sixth ground, that his Honour gave no reasons for judgment for the orders that he made. It needs to be pointed out that the orders made by his Honour were, in terms, final parenting orders in respect of two young children. The first observation that should be made is that the prospective appeal ground embraces an uncontested fact: his Honour did not in fact give any reasons for decision. It is said that his Honour sought to rely upon the transcript as founding the orders that he made. Whether or not his Honour was entitled to do so, and whether or not his Honour did in fact do so, there are no reasons for judgment in terms given to support the orders.
The prospective grounds of appeal are accompanied in the written summary of argument on the application by arguments that presumably will be sought to be argued on the appeal itself. It is not appropriate to canvass those arguments in any significant detail, but it can in my view be said clearly that there are substantive issues to be canvassed on the appeal.
It does not appear to be contentious that the mother was told by her previous solicitors that she did not need to be present in court at what his Honour described as a “trial callover” in February. In that respect, counsel for the applicant refers to a decision by me in Sinnott v Firth (No 2) (2013) 51 Fam LR 28. That case involved a successful appeal devolving from issues also emanating from a “trial callover” held by his Honour. Counsel for the applicant submits that the circumstances addressed in that decision are directly analogous to those which occurred in the instant case. Again, it is not appropriate for me to say too much about the merits of any such assertion, but there can be little doubt, I think, that the circumstances are at least somewhat analogous to the circumstances discussed and ultimately prosecuted successfully in Sinnott.
Given the advice by her then solicitor that she did not need to appear at the “trial callover”, she was represented, not by her solicitor at that “callover”, but by a town agent. She alleges that her instructions to her solicitors were always that family violence played a predominant role in her case in respect of parenting orders and she asserts she made it very clear that this was a predominant issue in her case and should be notified as such to the court. The mother says that these issues were not presented by the town agent to the court. The mother says, in effect, that on any view of the transcript the agent cannot be said to have put her case to Judge Howard.
Issues of procedural fairness similar to those which emerged in the decision in Sinnott relating to the making of an order in chambers and the consequences for non-appearance by a party at a “trial callover”, together with the events which occurred at that “callover” in her absence, are central to issues which the mother seeks to prosecute on her appeal.
Is It Fairly Arguable That Orders Will Be Set Aside?
In my view, satisfying this court that an appeal’s merit points to its reinstatement involves establishing not only that there are real issues of appealable error to be determined but that the establishment of any such errors could point to the setting aside of the impugned orders and the making of alternative orders, or the remitter of the matter for a consideration of that issue.
Here, the mother contends that her asserted errors, in the context of her allegations of family violence and what the family report in the proceedings before Judge Howard referred to as a “toxic relationship” between the parties, point to the order for equal shared parental responsibility being set aside.
Similarly, the mother asserts that injunctive orders sought by her in respect of the father not attending the children’s school were not at all addressed by his Honour. Similarly, it is said that orders for time with the father materially different to those made, should embrace changeover arrangements which accommodate asserted issues of family violence.
Taken together, the mother establishes a fairly arguable case of appealable error and for the setting aside of the impugned orders by reason of the injustice to her, and potential detriment to the children, which, it can be argued, will occur if the appeal is not permitted to be prosecuted.
Summary of Conclusions
The applicant mother explains her failure to comply with the directions which are the catalyst for the abandonment of her appeal by reason of the inactions of her then solicitors who, I am satisfied, retained instructions from her to undertake all steps necessary to prosecute the appeal, including specifically, compliance with the relevant directions.
I am satisfied on the evidence before me that the mother took all reasonable steps in seeking to rectify the default when she became aware of it and thereafter undertook all steps required of her in a timely fashion.
I am satisfied that the mother raises substantial issues on the appeal, including for example in respect of equal shared parental responsibility which in turn, of course, has ramifications for the exercise of the court’s powers pursuant to Part VII of the Act.
I am satisfied that the issues raised in asserting appealable error lead, if successful, to sustainable arguments that the impugned orders should be set aside. In that respect I note that the subject of the proceedings is the best interests of two young children.
The respondent points to no hardship that, subject to satisfaction of s 117(2A) of the Act, cannot be compensated by an order for costs save, of course for him being subject to appeal proceedings. However, if otherwise justice points to an appeal being heard, that is a prejudice suffered potentially by every litigant.
In all of the circumstances, the appeal should be reinstated.
Procedural Orders
No specific submissions were made in respect of a timetable for the filing of all necessary documents and the appeal books and I propose to order a timetable familiar to directions made by the appeals registrar.
Counsel for the mother foreshadows an Amended Notice of Appeal that substantially alters the grounds. I consider it appropriate (notwithstanding the provisions of r 22.09) that the amendment be made sooner rather than later. My orders will provide for a period of time within which the amendment is to occur.
Despite my conclusion as to merit and the reasons for non-compliance in this particular case, the mother is nevertheless being granted an indulgence in respect of a failure to comply with directions. I consider it appropriate in those circumstances to order that the appeal will be abandoned if there is non‑compliance. Counsel for the mother does not argue to the contrary.
Costs
Counsel for the mother foreshadows an application to the effect that any costs of and incidental to the appeal and this application ordered against the mother be borne by her former solicitors. They were given notice of such an application in respect of this application by letter from the mother’s current solicitors on 27 February 2017. Nothing was put before me to suggest any reply from those solicitors.
There may be issues sought to be argued by those solicitors in respect of any prospective costs order or indemnity against them which can, or should, only properly be canvassed at or after the hearing of the appeal. That being so, I consider it appropriate to reserve the question of the mother’s costs of this application to the Full Court upon the hearing of the appeal.
I note in that respect that an offer to settle this application was made under cover of a letter directed to the father’s solicitors on 27 February 2017. That letter became Exhibit 2 in the proceedings before me and it was made clear in that letter that it would be sought to be tendered before me on the question of costs. The letter invited the father to consent to the application for reinstatement and, in referring to the recent decision of Molloy contended that “it is likely that court will reinstate our appeal”. It seems to me appropriate that any considerations flowing from that particular letter should be left to the question of costs which I have reserved to the Full Court.
I will order accordingly.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 1 March 2017.
Associate:
Date: 7 March 2017
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