SHEPHERD & STEVENSON - [2015] FamCAFC 211

FAMILY COURT OF AUSTRALIA

SHEPHERD & STEVENSON

[2015] FamCAFC 211

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the applicant seeks leave to file his draft Notice of Appeal out of time – Where the draft Notice of Appeal appeals a costs order made in parenting proceedings – Where the court considers the merits of the applicant’s appeal – Where the appeal is lacking and merit and is likely to be futile – Application dismissed.

Family Law Act 1975 (Cth) s 117(2A)

Federal Circuit Court Rules 2001 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
Maiden v Maiden (1909) 7 CLR 727
Norbis v Norbis (1986) 161 CLR 513
Sedrak v Carney and Anor [1999] 3 VR 95

APPLICANT:

Mr Shepherd

RESPONDENT:

Ms Stevenson

FILE NUMBER:

SYC

6311

2011

APPEAL NUMBER:

146

2015

DATE DELIVERED:

9 November 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

1 October 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 July 2015

LOWER COURT MNC:

[2015] FCCA 2038

REPRESENTATION

FOR THE APPLICANT:

Mr Shepherd in person

COUNSEL FOR THE RESPONDENT:	Mr Blackah
SOLICITOR FOR THE RESPONDENT:	Miller Goddard

Orders

The Application in an Appeal filed by the Applicant on 3 September 2015 is dismissed.
Any application for costs in relation to this application and any evidence and submissions are to be filed within 28 days. The Applicant father has a further 28 days in which to file any response as to costs, evidence and submissions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shepherd & Stevenson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 146 of 2015
File Number: SYC 6311 of 2011

Mr Shepherd

Applicant

And

Ms Stevenson

Respondent

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 3 September 2015 Mr Shepherd (“the father”) seeks an extension of time in which to file a Notice of Appeal against orders made by Judge Kemp on 29 July 2015. On 21 May 2015 his Honour made final parenting orders in proceedings between the father and Ms Stevenson (“the mother”). On 29 July 2015, his Honour determined that the father should pay the mother’s costs of the parenting proceedings in the sum of $13 562 within three months. The father appeals only the costs order. There was no appeal from the parenting orders made on 21 May 2015.
The father did not file an appeal within 28 days of 29 July 2015. Rather, he sought to file his Notice of Appeal on 28 August 2015 which was two days late.
After judgment on the final parenting orders the mother sought an order that the father pay her costs of the parenting proceedings, on an indemnity basis, in the sum of $29 043.60. The trial judge determined that it was not an appropriate case in which to order indemnity costs but that the circumstances justified an order that the father pay the mother’s costs on a party party basis. Having regard to Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) and the costs of counsel, as disclosed by the evidence, his Honour assessed the costs himself and ordered the father to pay the mother the sum of $13 562.
As a significant consideration in this matter is the merits of the father’s proposed appeal, it is necessary to deal with the history of the matter and the reasons of the trial judge somewhat more fully than is usual.
The following is taken from the reasons for judgment relating to costs and the reasons for judgment in relation to the final parenting orders delivered on 21 May 2015.
The parties have three children who at the time of the hearing were aged 17, 15 and 13.
On 14 March 2013, on the second day of contested parenting proceedings, a number of parenting orders were made by consent. The parties agreed that they would have equal shared parental responsibility for the children who were to live with the mother. The two older children were to spend time with the father in accordance with their wishes and the mother was to do all things necessary to facilitate that time, if requested. The youngest child was to spend time with the father during school term on a cycle - in week 1 from after school Thursday until before school Tuesday, and in week 2 from after school Wednesday until before school Thursday. The youngest child was to spend one half of each school holiday period with each parent and, failing agreement, with the father for the first half of the holidays in even numbered years and the second half in odd numbered years.
On 24 April 2013, the court made further orders relating to the counselling of the children.
It is apparent that difficulties arose in the implementation of the orders because the parties were unable to agree on which week after school holidays the children’s time with the father would start.
On 3 December 2013, the mother commenced proceedings seeking the following order:
That Order 5.1 of the parenting orders be varied to provide “5.1 During the school term on alternate weeks from after school Wednesday until before school Tuesday on weeks as agreed and failing agreement commencing on the first week of each school term in even numbered years and the second week of each school term in odd numbered years”.
Thus the mother sought some very minor changes to the existing orders to clarify the dispute arising from the earlier orders.
In his Response filed on 24 February 2014, the father sought substantial variations to the existing orders including an order that the youngest child live equally with the father and the mother on a week about basis. Included amongst the orders sought by the father was:
The orders are to be reviewed by the parties on an annual basis at the conclusion of term IV so that changes can be made to better reflect the changing circumstances of all the parties. This review may be done via email or directly.
He also sought an order that:
That for the purposes of these orders, the father’s wife, [Ms K], shall be included in the same way as the father. In the event of the death of the father then orders will continue to operate with [Ms K] acting as the other parent. In the event of the death of both the father and [Ms K], [X’s] Godfather, [Mr M] will assume the responsibility of the father’s role. The mother is to ensure that [X] continue to maintain her links with the father’s extended family and her step family.
Neither Ms K nor Mr M were parties to the proceedings and it is apparent, without considering whether or not there was jurisdiction to make such an order, or, if there was jurisdiction, such an order would be a proper order, it could not be made as neither of them were parties.
In short, the father sought substantial changes to the existing orders.
In the event, the order sought by the mother was made by consent. Additionally, orders were made providing for time the youngest child was to spend with the father on Christmas Day, birthdays and other special days. This order eliminated another area of dispute as to the implementation of the earlier orders. This order had been proposed by the father. The hearing, therefore, largely concerned consideration of the balance of the orders sought by the father. Those orders were not made because the trial judge found that the proposed orders raised the same issues that had been considered in the proceedings that were resolved on 14 March 2013. In the judgment of 21 May 2015, his Honour found there had been no change in circumstances since then that would warrant reconsideration of those orders.
In the costs judgment the trial judge said:
4.Therefore, the effect of the orders made by the Court on 21 May 2015 can be summarised as being:
a)The orders (save as to costs) sought by the mother in her Initiating Application/Reply were, ultimately, made by consent.
b)The orders sought by the father in his Response were largely dismissed on the basis of his failure to meet the threshold test referred to under Rice & Asplund (1979) FLC 90-725.
The trial judge then moved on to consider the matters raised by s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”).
His Honour noted that neither party had made any submissions as to their financial circumstances.
The trial judge then found that the conduct of the father in relation to the proceedings was significant. Although the father had consented to the mother’s proposed orders, his consent was subject to the mother consenting to the proposed orders of the father. As the trial judge said, at least one of those proposed orders (as set out in [12] above) would leave the decisions of the parents open to continual review, including review by the court. His Honour also considered that the father had, in his Response, sought orders that were well beyond the jurisdiction of the court (such as the orders to take effect on the death of the parties or would impose obligations on persons who were not parties to the proceedings).
The father had sought an order that the court investigate the conduct of the mother’s solicitor. That application failed completely and was found by the trial judge to be substantially unrelated to the parenting issues, not focused on the best interests of the children and served as a distraction for both the parties and the court.
The father was not wholly unsuccessful in his Response as the trial judge found there was some ambiguity in the 2013 orders which was corrected by the orders made on 21 May 2015. This included the orders as to special days. Notwithstanding that success, the trial judge accepted the mother’s submissions that the father’s conduct of the proceedings was a departure from the normal standard because the father had sought orders that were unreasonable, misguided and, in relation to some, not within the jurisdiction of the court.
The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480 - 481. McHugh J 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: 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore 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, and the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
As to the reason for not filing his appeal within time, the father said that he had understood from a conversation that he had with a person he described as “the assistant at the court” that he had until 28 August 2015 in which to file his Notice of Appeal. He sought to file it on that date, which as I have said, was two days late. He said that he now believes that he was told to file the appeal within 28 days, but misheard.
This is an acceptable explanation for a litigant in person being two days late in attempting to file his Notice of Appeal. The father acted promptly by filing this Application on 3 September 2015.
It is necessary to address the merits of the appeal. In a slightly different context, Chernov JA said in Sedrak v Carney and Anor [1999] 3 VR 95:
16.In my view, however, as I made clear to the parties at the commencement of the hearing of this application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondents and cause needless expenditure of public funds if the appeal were 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 what must be clearly shown before the applicant is denied the right to have his or her appeal heard, is that the appeal would fail.
This is in accordance with what the High Court said in Jackamarra v Krakouer and Anor (1998) 195 CLR 516. There is some significance, however, in the fact that, in each of these cases, an appeal had been filed in time and the applicant was seeking to be excused from the consequences of a procedural delay in preparing the appeal for hearing. In circumstances where the appellant has properly exercised his or her right to appeal, the merits of the appeal are not as significant as a consideration as they may be if the appeal has not been filed in time. On any view, however, the merits of the proposed appeal are a relevant consideration.
The costs application proceeded by way of written submissions. It is therefore clear what arguments were put to the trial judge. This is of some importance because many of the issues sought to be agitated on appeal by the father were not raised before the trial judge.
There are seven proposed grounds of appeal. The first complains that the trial judge failed to make any allowance for the financial circumstances for each of the parties. Neither party put any evidence as to their financial circumstances before the court. The only references to financial circumstances in the father’s submissions were the following:
…[The mother] is well aware of my financial status…Increased financial hardship in my account would not further my attempts to parent [X] effectively in the future.
It follows that his Honour was entirely correct to say that neither party made any submission as to the relevance of their financial circumstances to the costs issue.
In support of his submissions the father referred to a large number of affidavits which were listed in his draft Appeal Index. As appears from [17] of the judgment of 21 May 2015, many of those affidavits, including a Financial Statement of the father dated 21 March 2012, were not admitted into evidence in the parenting proceedings. They were therefore not before the court. The father did not attempt to place any evidence of his financial position before the court at the hearing of the costs application either by reliance on the earlier affidavits or by way of more up to date evidence.
Whilst a failure to make submissions as to financial position may not necessarily be fatal to this ground of appeal, the lack of evidence, which may have been disputed by the mother had it been adduced by the father, would appear to be fatal. It will be very difficult for the father to succeed on this ground.
The second proposed ground asserts that the trial judge failed to find that the proceedings were necessitated by the mother’s habitual failure to comply with earlier orders. The trial judge pointed out in his reasons for judgment on 21 May 2015 that the father had made this complaint prior to the making of the consent orders of March 2013 and had repeated the complaint in the subsequent proceedings. The trial judge noted that no contravention application had ever been made. Of this complaint the trial judge said in the reasons of 21 May 2015:
47.While the father is highly critical of the mother, it is the father’s interaction with the mother which raises significant concerns. The father is critical of her behaviour which he sees as unilaterally acting to suit her immediate desires and, by so doing, creating drama and unnecessary conflict which, he says, is aimed at driving a wedge between him and his family and [X]…These issues were all previously raised by the father in his material filed in the proceedings but, again, are largely inconsistent with his proposal for an equal time regime with the mother concerning [X]. In any event, given that these accusations are not new, they do not amount to a significant change in circumstances to warrant the further intervention of the Court.
There was no appeal against that finding or the refusal of the court to reopen the proceedings.
Further, the father did not make this submission to the trial judge on the costs application.
For these two reasons it will be difficult for this ground to succeed.
The third proposed ground of appeal is that the trial judge failed to recognise that the current orders were substantially changed by the 21 May 2015 orders and cover most of the issues raised by the father. This overlooks the fact that the orders that were made were directed to the implementation of the March 2013 orders and that the substance of them remained unchanged. The changes were simply to clarify changeover times and times for special days. As most of the father’s proposed orders were rejected, the premise on which this ground is based cannot be established. It is difficult, therefore, to see how this ground could succeed.
The fourth ground asserts that the trial judge erred by failing to acknowledge the father’s willingness to cooperate and compromise on the orders because the order sought by the mother was ultimately made by consent. The trial judge said:
20.In relation to the father seeking to use the mother’s application to renegotiate the entirety of the parenting orders, the father, himself, appears to concede as much in his own submissions where he includes a letter from himself to the mother’s legal representative which stated, inter alia, that: “I would like ALL these issues addressed. I hope that you can see the benefit of coming to a sensible arrangement along the lines of what I suggest…”
(Original emphasis)
The father did not point to any other evidence to demonstrate the error of the trial judge. That being so, the finding of the trial judge is supported by the evidence on which he relied. Again, it is very difficult to see how any appeal from this finding could succeed.
The fifth ground asserts that trial judge erred by failing to acknowledge “the vindictive and uncooperative nature of the mother’s approach to the proceedings as evidenced by the submitted costs agreement provided to the court”. It is clear from the written submissions that the mother provided to the court copies of itemised bills prepared by the mother’s solicitor.

The father submitted that two entries in the costs agreements show that the mother was vindictive and uncooperative. That agreement was not before the court but I infer from what the father said that the itemised bills contained a very short description of the nature of each item charged. Even if one accepts the father’s characterisation of the two descriptions upon which he relied, two difficulties arise. First, none of this was raised with the trial judge. This is significant given the mother’s submissions were filed and served on the father before he prepared his. As the mother served the itemised bills at the same time as her submissions, he was in a position to address them in his submissions. Secondly, it is difficult to see how a description of an entry in a costs bill, prepared by an unknown person but almost certainly not the mother, could give rise to the findings suggested by the father.
The next ground in the proposed Notice of Appeal is that the trial judge failed to recognise that the order the mother sought was originally in the orders sought by the father in 2014. That may be so. Those orders were, however, made by consent. In any event, the father could have filed a response to the mother’s application simply consenting to that order. He did not do so. He filed a response seeking a variety of other orders. The trial judge was not in error in not regarding this as being of significance.
Finally, it is asserted that the trial judge erred when he classified the father’s proposed orders as unreasonable, misguided and not within the jurisdiction of the court. As I have pointed out earlier, that is an entirely apt description of the orders sought by the father. That is so, at the least, because the proposed orders sought to cast obligations upon people who were not parties to the proceedings.
I bear in mind this is an application to appeal against a costs judgment. In Maiden v Maiden (1909) 7 CLR 727 Isaacs J said at 742:
As to costs, it is clear that the discretion of the primary tribunal cannot be interfered with so long as it is not caused by an erroneous view of the law or a misapprehension of the facts…
This is therefore a proposed appeal from a discretionary judgment. In Gronow v Gronow (1979) 144 CLR 513 at 519 Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge…
See also House v The King (1936) 55 CLR 499 at 504 - 505; Norbis v Norbis (1986) 161 CLR 513 at 539 - 540 and CDJ v VAJ (1998) 197 CLR 172 at [151].
It is difficult therefore to see that any of the above grounds have any prospect of success on appeal insofar as they refer to the weight to be given to any particular matter raised by the father even if the ground had otherwise been established.
It was submitted by the father that, if the order was left to stand, he would suffer an injustice in that he does not have the funds to meet the costs order and he would become a bankrupt. He submitted that this would be to the detriment of his ability to parent both the children of the parties’ relationship and the child of his subsequent marriage. Again there was no evidence as to the father’s financial position to support that submission. However, accepting that the father was impecunious, this would not have been determinative of the costs application. Impecuniosity is, of itself, no bar to a costs order being made.
On the other hand, as is apparent from the reasons of the trial judge, the parties have been litigating the parenting orders of these children since 2007 when consent orders were made. The father commenced further proceedings on 17 October 2011 which continued until the consent orders of 14 March 2013, followed by the proceedings the subject of the costs order. The mother has received a determination from the court in relation to the parenting issues largely determined in her favour and has received the benefit of a costs order. To put her to the costs of meeting an appeal which would otherwise fail, would work an injustice on her. It would cause a needless expense of public funds and unnecessarily occupy judicial time. The impecuniosity of the father does not outweigh these significant considerations.
It must be said that many of the complaints of the father, particularly those developed in oral submissions were complaints as to errors made in the judgment of 21 May 2015 from which, of course, no appeal was taken.
In all of the circumstances, given that the appeal is so lacking in merit and is likely to be futile, notwithstanding that the father has a reasonable excuse for not filing a Notice of Appeal within time, I am of the view that the application should be dismissed.

Costs

At the conclusion of the hearing counsel for the mother sought the opportunity to make an application for costs if the application were unsuccessful. Any application for costs, any evidence in support and submissions are to be filed within 28 days. The father has a further 28 days in which to file any response as to costs, evidence and submissions. The costs application will be determined in chambers unless either of the parties indicates in their submissions that there needs to be the opportunity for oral submissions.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Aldridge J delivered on 9 November 2015.

Associate:

Date: 9 November 2015