Sinnott and Firth
[2013] FamCAFC 58
FAMILY COURT OF AUSTRALIA
| SINNOTT & FIRTH | [2013] FamCAFC 58 |
| FAMILY LAW – APPEAL – APPLICATION TO FILE NOTICE OF APPEAL OUT OF TIME – where the appellant seeks to appeal final parenting orders made by Federal Magistrate in chambers – where reasons for judgment were received after the appellant’s application was filed – where the appellant did not provide an adequate explanation for the delay in filing the notice of appeal – where the respondent can point to no prejudice if the application is granted which could not otherwise be remedied by an order for costs – where the primary appeal grounds relate to an alleged lack of procedural fairness in the manner in which the final orders were made – whether the application ought be granted – application granted – appellant ordered to pay the respondent’s costs of and incidental to the application. |
| Family Law Act 1975 (Cth) Federal Magistrates Court Rules 2001 (Cth) |
| Clivery & Conway [2007] FamCA 1435 Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Mr Sinnott |
| RESPONDENT: | Ms Firth |
| FILE NUMBER: | BRC | 517 | of | 2011 |
| APPEAL NUMBER: | NA | 8 | of | 2013 |
| DATE DELIVERED: | 9 April 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 9 April 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 19 March 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 229 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr O’Neill |
| SOLICITOR FOR THE APPELLANT: | Michelle Porcheron Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Jones Mitchell Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Fox of Barbara Fox Solicitors |
Orders
The Application to extend the time within which to file the Notice of Appeal be granted.
The Appellant pay the Respondent’s costs of and incidental to today’s hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sinnott & Firth 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 BRISBANE |
Appeal Number: NA8 of 2013
File Number: BRC517 of 2011
| Mr Sinnott |
Appellant
And
| Ms Firth |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
The father of H (born October 2005) filed an application for parenting orders in the Federal Magistrates Court early in 2011. On 3 December 2012, Howard FM made final parenting orders. The father was not present in court when those orders were made but his solicitor was. The husband seeks to appeal those orders.
The father’s Notice of Appeal was not filed within 28 days of the orders as required by rule 22.03 of the Family Law Rules 2004. An order is sought by him to extend the time to file a Notice of Appeal pursuant to an application filed by him on 21 February 2013. These reasons relate to that application.
The procedural history leading to the making of the orders is not without significant difficulties and will need to be addressed in some detail below. Reference should first be made to the orders made by Howard FM on 3 December 2012. Those orders provide:
1.That the child [H] born … October 2005 (“the child”) live with the mother.
2.That the mother shall have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 as amended) in respect of the child, save that the mother shall prior to making the sole ultimate decision about any such issue:
a.use her best endeavours to advise the father in writing of the decision intended to be made;
b.seek the father’s written response in relation thereto;
c.consider by reference to the child’s best interests any such response prior to making any such decision; and
d.advise the father in writing as soon as reasonably practicable of her ultimate sole decision.
3.That the child spend time and communicate with the father as agreed in writing between the mother and father.
4.That the child’s passport be released to the mother and the mother is authorised to hold that passport.
The orders thereafter provide for permission for the child to be removed from the Commonwealth of Australia and other orders not relevant for present purposes.
In addition to the orders just referred to, the Federal Magistrate also made orders providing for written submissions to be filed by each of the parties with respect to the issue of costs.
Applicable principles
The principles applicable to the current application are not in doubt and emerge, primarily, from the decision of the High Court in Gallo v Dawson (1990) 93 ALR 479. Those principles have been summarised by this Court, for example, in Clivery & Conway [2007] FamCA 1435 at [14]:
The principles emerging from Gallo v Dawson may be summarised as follows:
· The grant of an extension of time is not automatic.
· The object is to ensure that Rules which fix times do not become instruments of injustice.
· Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
· When determining 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 considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
How the Orders Came About
Consequent upon the application filed by the father seeking parenting orders, Purdon-Sully FM made orders which, in broad compass, effectively contemplated a process of mediation and potential agreement as between the parties. Subsequently interim parenting orders were put in place by the Federal Magistrates Court. Controversy, it seems, centres upon what the mother would assert is the father’s lack of commitment to spending time with the child and what the father would assert is the mother’s unwillingness to promote meaningful time.
Ultimately, the process just described embodied both the preparation of a short report by a family consultant and a process conducted by a Ms C. The latter process envisaged the monitoring and re-introduction of the father to the child. That process resulted in each of the parties making a number of requests for adjournment of the proceedings in the Federal Magistrate Court so as to allow that process to take place or continue as contemplated by previous interim orders. Those requests for adjournment can be seen contained in correspondence passing between the parties jointly and Howard FM’s chambers.
It is necessary to refer in more detail to what occurred in two letters that were made exhibits in these proceedings and which pertain to the latter part of the process of adjournments just described.
Exhibit 1 consists of the Court’s file copy of correspondence passing by email from the Federal Magistrate’s Chambers to each of the parties’ legal representatives dated 21 June 2012. It is appropriate to quote the contents of that correspondence:
Dear Sir/Madam, I note your request by consent dated 21 June 2012 to have this matter administratively adjourned from 25 June 2012 to allow the father to engage with the family report writer, Ms [C].
Please note that this matter is now set down for Mention at 9.30 a.m. on 7 September 2012 in the Federal Magistrates Court of Australia at Brisbane. Your attendance in Court is required on this day.
…
(Bold emphasis in original).
Subsequently, a piece of correspondence which became Exhibit 2 in the proceedings before me, and which is dated 30 August 2012, was also sent by email. This correspondence, too, emanated from the chambers of the Federal Magistrate and was sent to the legal practitioners for each of the parties (and also the Independent Children’s Lawyer who had previously been appointed).
Again, it is appropriate to quote the relevant parts of that correspondence:
Dear Ms Jones, Ms Maloney and Ms Fox,
I refer to the above matter and to the request from all parties to appear by telephone link on 31 August 2012.
Please be advised that this matter has been administratively adjourned from 31 August 2012 to 9.30am on 3 December 2012 in the Federal Magistrates Court of Australia in Brisbane.
This matter has been listed by the Court for the purposes of a trial callover being held on that day.
Each party is required to appear in person on the adjourned date along with their legal representative (if any).
There is no need for an appearance on 31 August 2012.
(Bold emphasis in original).
The Independent Children’s Lawyer (Ms Fox) and each of the solicitors for the parties, who appear before me today instructing counsel, was engaged in the matter during the timeframe to which reference has just been made. None were able to assist with the reference in that correspondence to the 31 August 2012 date. After discussions between the legal representatives of the parties and the Bench it was indicated that no date other than 7 September (appearing in Exhibit 1) had been, to their knowledge, arranged for any further appearance, and the 31 August 2012 date was, as it were, a mystery. It seems tolerably clear, at least for the purposes of this application, that the reference to 31 August 2012 in Exhibit 2 is an error and should, in fact, be a reference to 7 September 2012.
Be that as it may, it will be appreciated that all of the parties were aware, or ought to have been aware by reason of correspondence passing from the Federal Magistrate’s chambers, that the next date upon which it was necessary for them to appear in Court was 3 December 2012 and that this date was “for the purposes of a trial call-over being held on that day”.
I interpose here that the reference to a trial callover is not a reference to any practice contained within the Federal Magistrates Court Rules 2001 (Cth). I am told from the bar table, and it does not appear to be controversial, that at about the time to which this correspondence relates some Federal Magistrates had determined to conduct callovers in respect of matters that had been sitting in their dockets for some time. It was anticipated by all parties in this case that the purpose of the trial call-over was the making of directions for a trial to be heard in respect of any outstanding issues between the parties.
What next emerges from the file is an order made on 12 November 2012. The order is prefaced with the words “upon application made to the Court in chambers”. Each of the legal representatives of the parties and the Independent Children’s Lawyer indicate that no such application was made to the Court or had ever been made to the Court.
The order goes on to record interim orders as follows:
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That this matter be adjourned for the 2013 Trial Callover at 9.30am on 3 December 2012 in the Federal Magistrates Court of Australia at Brisbane.
2.That the parties and their legal representatives personally attend Court on 3 December 2012.
3.That by no later than 4.00pm on 28 November 2012 and after consultation with the other parties, the Independent Children’s Lawyer is to file and serve a joint case summary document (maximum two (2) pages), with respect to children’s matters, which set outs the following:
a. the issues in dispute;
b. an estimate of the number of witnesses; and
c. the time required for the trial.
4.That in the event the case summary document referred to in the preceding Order is not filed in accordance with the time frame specified, a trial date may not be allocated at the trial callover.
5.That by no later than 4.00pm on 28 November 2012, each party file and serve a chronology of the relevant history of the matter.
(Bold emphasis in original)
At this point, it is crucially important to understand four matters:
(i)The father asserts that he had not failed to attend on any date upon which the matter was previously listed before the Court. That contention is not challenged in the arguments made before me.
(ii)No suggestion had been made by anybody, including the Federal Magistrate, that a trial would occur or that final orders would be made on 3 December 2012.
(iii)No request had been made by the parties for a trial nor had they been heard on that issue including, for example, as to whether, in light of the previously-ordered process that had previously occurred or been contemplated as occurring with Ms C, any trial was necessary.
(iv)No affidavit material had been filed by any party pertaining to the arrangements for the children save for the initial affidavit required by the rules of the Federal Magistrate’s Court.
The orders made on 12 November 2012 were made, apparently, at the instigation of the Federal Magistrate without either party requesting any such order to be made, without notice to any party, and without any party having been heard in respect of those orders. Leaving aside what might arise more generally from those considerations, it needs to be remembered that those factors pertain in circumstances where the prior history of the matter had seen the process involving Ms C to which reference has earlier been made and a number of requests for adjournment as a result.
As a result of the matters just referred to, none of the parties before me, including the solicitors who instruct counsel today, were able to assist with what occurred so as to result in the orders of 12 November 2012 having been made. Mr Shoebridge who appears as counsel for the mother asserts that the orders appear to have been made “of the Federal Magistrate’s own volition”.
It seems abundantly clear, however, (and no party before me suggests to the contrary) that not only were those orders made without hearing any party in respect of any issue raised by those orders, there was no indication that orders of any substantive type might be made on 3 December 2012. In particular, no reference was made for the possibility of any orders being made in default of the appearance by either party, notwithstanding the fact that the orders as made required the personal attendance of the parties on 3 December 2012.
The orders do not make any reference to the possibility of default orders; rather they specifically refer only to a trial not being allocated on the 3 December date in the event that there was non-compliance with the directions made on 12 November.
As is known, parenting orders were made on a final basis by his Honour on 3 December arising, it would appear, from the father’s non-appearance on that date. The transcript of the proceedings on that day indicate that the solicitor who had been acting for the father, and acted for him on that day, indicated that the father was aware of the proceedings on 3 December 2012 but that she had been unable to contact him.
As has been seen, the orders made by the Federal Magistrate on that date also provided for written submissions to be provided by each of the parties in respect of the issue of costs. The record reveals that each of the parties provided written submissions in compliance with the contemplated timetable.
Those orders contemplated a “chamber’s hearing” with respect to the issue of costs. There is no reference in the orders to that hearing taking place on 8 February 2013, although the transcript of proceedings from 3 December 2012 reveals his Honour stating “I will deal with [the issue of costs] in chambers and give a decision on it in early … February” and the cover of the reasons for judgment delivered on 19 March 2013 specify the relevant hearing dates as “3 December 2012 and in chambers on 8 February 2013.” The Court Record (Casetrack) indicates that the matter was listed for hearing in chambers on 8 February 2013 however, no orders were made on that date. Ultimately, the issue of costs was determined in chambers on 19 March 2013 with orders and reasons for judgment issuing that day in respect of both costs and the orders made some three months earlier on 3 December 2012.
As I have mentioned, the father provided instructions to his solicitor to appeal the parenting orders made on 3 December. In broad terms, the Notice of Appeal was required to be filed (once account has taken of the relevant public holidays and court closure days over the Christmas New Year period) by about the end of the first week of January. In fact, what occurred was that the application for extension of time, in which to file a Notice of Appeal, was filed on 21 February. That application appended, as is required, a Notice of Appeal.
That Notice of Appeal contains grounds which, with great respect, are barely adequate in terms of what might be litigated upon an appeal proper. In broad terms, they indicate a challenge is made on what can broadly be called “procedural fairness grounds” emanating from the facts and circumstances which I have sought to outline in these reasons.
At the time the orders were made on 3 December 2012, no reasons for judgment were given. Reasons did not emanate from the Federal Magistrate, either in respect of the parenting orders or in respect of the issue of costs, until orders in respect of the latter issue were made on 19 March 2013.
It is clear, then, that the reasons for judgment which might inform, at least in part, any grounds of appeal were not provided until after the application for extension of time, which included the prospective Notice of Appeal, was filed. The reasons emerged about four weeks after the current application was filed.
Discussion
As Mr Shoebridge, counsel for the mother, correctly points out, the exercise of the discretion, in respect of the granting of time, is a broad one informed as Gallo v Dawson makes clear, by a consideration of the justice of the case. If the principle is expressed in that case by saying that rules in respect of form including, in particular, rules containing time limits should not become “instruments of injustice”.
A number of matters have been referred to in determining whether the rules will work an injustice including, as I have earlier made clear, 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. It is also important – indeed, very important – to consider whether an application for an indulgence from this Court gives an adequate reason for why there has been non-compliance with the relevant rules.
In my view, the father has not given an adequate explanation for either his failure to attend before the Court on 3 December 2012. Nor has he given any adequate or, indeed any, meaningful explanation for the failure to file a Notice of Appeal within time.
It has become the practice in this Court, for Notices of Appeal to be filed, even in the absence of reasons with a caveat that an Amended Notice of Appeal or, perhaps more accurately, a “proper” Notice of Appeal, will be filed upon the issue of the reasons. That was not done in this case and no explanation has been given for why it was not done.
The only explanation given with respect to the failure to file a Notice of Appeal within time, if it be called an explanation, is that the father works in Brisbane and the office of his solicitor is on the Gold Coast. I reject that as an explanation or a purported explanation of delay. The fact is, no adequate or any real explanation for the delays been provided by the father.
The history of this matter has already been outlined at some length. I accept, for the purposes of this application, that the husband’s failure to appear on 3 December 2012 was his only failure to appear in and about any procedural hearings leading up to that date. Otherwise, the history behind the making of the orders on 3 December 2012 causes me very significant disquiet. The disquiet may not be so acute if the grounds of appeal were, for example, solely confined to a challenge to purely discretionary aspects of a judgment made by a trial Judge or Federal Magistrate.
The disquiet becomes acute where the appeal, and essentially the sole grounds of appeal, relate to issues of procedural fairness and the right to receive a proper and fair hearing.
It is, of course, not for me to comment upon what might be the merits of the appeal as ultimately argued. I have already indicated to the parties, during the course of argument, that the current grounds of appeal are not at all particularised and, in their current form, would give some cause for concern about their prospects of success. Nevertheless, taken together, they can, I think, be seen as being a direct challenge to the nature of the proceedings that occurred and the manner in which final parenting orders were made by the Federal Magistrate on 3 December.
There is sufficient disquiet on my part and concern about the prospect of injustice to the father so as to conclude that there is a real foundation for the proposed appeal.
Mr Shoebridge, in arguing against the grant of the indulgence to the father, does not seek to limit the importance of those matters or to suggest that they are unimportant. He says, correctly as it seems to me, that they are but some of the factors that need to be taken into account in arriving at an overall assessment about the prospect of injustice. So much is true. But, where the potential grounds of appeal go to the very heart of what a legal system can be expected to deliver for litigants before it, that, as it seems to me, is a very important factor in the granting of the indulgence which the father seeks.
As a corollary to that, Mr Shoebridge quite property indicated that he cannot point to any potential injustice to the mother that cannot be cured, potentially, by an order for costs being made in her favour.
In that respect, it is important, I think, to consider the terms of the orders themselves in assessing whether any injustice is occasioned to the mother by reason of the continuation of those orders, pending an appeal which would be permitted by the extension of time. I cannot see any injustice, in the relevant sense, that can’t otherwise be cured by costs. And nor, properly, as it respectfully seems to me, does Mr Shoebridge contend for same.
Because the discretion is a broad one and because the nature of the matters that might be considered within the context of a broad discretion are not unlimited, provided they are exercised judicially, I cannot pass up the opportunity to express my concerns about the utility of the appeal, in practical terms, brought by the father. It is, of course, axiomatic that it is not for me to comment upon what the father may or may not do, provided that there are no actions on his part that can be described as being an abuse of process, vexatious or the like, which I emphasise there are not here.
However, given the orders as made provide the opportunity for the father to seek agreed time in writing between he and the mother, I cannot help but wonder about the utility of the appeal in practical terms. I take that into account as a factor in determining whether, overall, the justice of the situation requires the granting of the indulgence which the father seeks. However, it is of course entirely open to the father to properly pursue such democratic rights as exist within our system, and specifically in this Court, and I propose to pass no further comment upon that issue.
Taking all of the relevant matters into consideration, I am left, on balance, with a significant feeling of disquiet about the injustice of the manner in which the orders were made by the Federal Magistrate. Whether or not that might result in there being a successful appeal or not is a separate question. But, in circumstances where the true test for the granting of the indulgence the subject of this application is the preventing of injustice, it seems to me that the balance lies in granting the application which the father seeks, and I so order.
The mother applies for the costs of and incidental to the application before me.
The usual rule in this Court is, of course, that each party bears their own costs by reason of s 117(1) of the Family Law Act 1975 (Cth) (“the Act”). However, s 117(2A) provides a basis upon which the Court can exercise a discretion for the granting of costs where the circumstances of a case are considered to so warrant it. The Act provides specifically in s 117(2A) for a number of factors, but makes it clear within that subsection that they are not exclusive of the matters that can be taken into account in the exercise of a broad discretion.
Mr O’Neill, counsel for the father, makes no specific reference to those matters, save for submitting that in the circumstances of the case, “the costs of the party should lie where they fall.”
In my view, the father has come to this Court seeking an indulgence. In doing so, he has not provided any, or any adequate, explanation for the failure to file the Notice of Appeal on time or, indeed, for his failure to appear on 3 December 2012, when the orders were made. It is entirely understandable, in those circumstances, that the mother would seek to resist the application for the extension of time sought by the father.
In all of the circumstances of this case, there being no other matters to which the Court has been referred relevant to s 117(2A) of the Act, I consider it appropriate that the father pay the mother’s costs of, and incidental to, this application, and I so order.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 9 April 2013.
Associate:
Date: 17 April 2013
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