Stone and Stone and Anor

[2015] FamCAFC 242

FAMILY COURT OF AUSTRALIA

STONE & STONE AND ANOR [2015] FamCAFC 242

FAMILY LAW – APPLICATION IN AN APPEAL – Application to reinstate abandoned appeal – Where the appeal books are near completion, and some delay was occasioned by the applicant wishing to inspect documents at the Court – Where there has been family illness in the applicant’s family – Where the applicant and second respondent have no time with the children – Where the appeal is not frivolous – Application allowed.

Family Law Rules 2004 (Cth) r 22.2, 22.4

Bemert & Swallow (2010) FLC 93-441

APPLICANT: Ms S Stone

FIRST RESPONDENT: Mr Stone

SECOND RESPONDENT: Ms Stone

INDEPENDENT CHILDREN’S LAWYER: Tracy-Lynne Geysen

FILE NUMBER: BRC 1645 of 2011

APPEAL NUMBER: NA 10 of 2015

DATE DELIVERED: 2 December 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 2 December 2015

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 22 January 2015

LOWER COURT MNC: [2015] FamCA 14

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE FIRST RESPONDENT:	In person
FOR THE SECOND RESPONDENT:	In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Carmody

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:: Couper Geysen Family and Animal Law

Orders

1. The Application to reinstate appeal NA10 of 2015 be allowed.

2. The time for the filing of the appeal books, as provided in paragraph 7 of the orders made on 4 May 2015 be extended to a date to be determined by the Registrar at a further directions hearing.

3. The directions made in paragraphs 9, 10, 11, 12, 13 and 14 be discharged.

4. A further directions hearing be fixed by the appeal registrar to make directions in relation to the filing of the appeal books, the filing of summaries of argument and any other necessary directions.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 10 of 2015
File Number: BRC 1645 of 2011

Ms S Stone

Applicant

And

Mr Stone

First Respondent

And

Ms Stone

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In an Application in an Appeal filed on 28 August 2015, the appellant, Ms S Stone, to whom I will refer as “the grandmother” seeks that her appeal be reinstated.  The grandmother failed to comply with directions that required the appeal books to be filed on or before 4 pm Friday, 31 July. 

2. This failure led to her appeal being deemed abandoned, pursuant to r 22.2(1) of the Family Law Rules 2004 (Cth) (“the Rules”). A party may apply to have an appeal taken to be abandoned to be reinstated (per r 22.4(4)). Although the Rules do not indicate the matters to be taken into account in such applications, the general principles are those where time limits apply have been taken to be applicable.

3. The principles relevant to a consideration of whether an appeal should be reinstated are well known, see Bemert & Swallow (2010) FLC 93-441. It is thus necessary for me to consider the explanation for the delay, the likely merits of the appeal and the prejudice to the other party.

4. In this matter, another appeal was filed on 28 May by Ms Stone, to whom I will refer as “the mother”.  It is the cross-appeal. 

Background

1. The background briefly stated is as follows.  The appeal concerns two boys, B and C who are 10 and nine years of age. 

2. The trial judge, Forrest J, ordered by way of final orders on 22 January 2015, that the children live with the father and that he have sole parental responsibility for them.  The children are to spend no time with their mother or grandparents, nor have any communication with them, other than by letters, cards and presents. 

3. Prior to orders being made by the trial judge, the children had been living with the mother and despite orders, spent little time with their father.  The relevant procedural history is as follows.

Procedural History

1. The appeal was filed within time by the grandmother on 18 February 2015. The cross-appeal filed by the mother was filed the next day. As required by the Rules, the grandmother filed a draft index. On 4 May 2015, a directions hearing was held when, among other things, orders were made for the filing of the appeal books. On 31 July 2015, the grandmother had failed to file the appeal books as required. On 3 August 2015, a letter was sent to her informing her that the appeal was deemed abandoned pursuant to the rules. The grandmother indicated that she wished to have her appeal reinstated and of some significance, she promptly filed this application.

2. I understand that the grandmother has been attempting to correctly put the appeal books together and has delivered some documents to the appeal registrar quite recently.  The appeal registrar, in an endeavour to assist the grandmother, has written to her explaining that there are still documents missing apparently, the grandmother has told me this morning, and some are out of order.  Although required by the directions, the transcript of the proceedings are not included.  The grandmother tells me this morning that she is quite confident that she will be able to attend to all these matters in a relatively short time.

3. It is important, however, to consider the question of delay. 

The grandmother’s affidavit

1. The grandmother claims that there was some delay in her receiving the orders for directions.  It should be noted that she was present on 4 May 2015 and that by letter dated 6 May 2015, the Court sent to her a copy of the directions and orders and attached the index. 

2. The father opposes this application, referring to the considerable time the grandmother was given to prepare the appeal books and that she did say to the registrar at the time that this extra time allowed to her would give her the opportunity to do so.  The father also complains that the delay is not adequately explained. 

3. It does seem, however, that there may have been some delay occasioned by the grandmother wishing to inspect documents at the Court.  In addition, the grandmother has been in touch with Auscript in an endeavour to provide the transcript but presently, does not have the funds to pay for it.  The grandmother would like to make arrangements with the Court to listen to part of the hearing in an endeavour to reduce the extent of the transcript that she might require.  In addition, the grandmother has informed me this morning of serious family illness in recent times, both of her husband and most recently, in relation to the children’s mother.

4. It seems overall, that the grandmother will need a little more time to prepare the appeal books.  I accept that she genuinely wishes to do so and that her past failures are not a mere delaying tactic. 

5. As to the prospects of success of the appeal, it is very difficult to assess that at this time, but I am satisfied that this is not a frivolous appeal and it, of course, involves some significant importance for the children.  As I have already mentioned, the father opposes the reinstatement of the appeal, pointing to the delay, in particular.  The independent children’s lawyer has not opposed the reinstatement but has quite properly referred me to delays in the past and that some caution should be attended to this matter.

Conclusion

1. Overall, it seems to me that in this case, I should be satisfied that the discretion should be exercised for the appeal to be reinstated and I intend to make those orders.  So not to cause more expense in the future, especially public money, it is better for the appeal registrar to make further orders about the provision of appeal books, but I note that the grandmother told me that she would be able to attend to all these matters by the end of this year, if not, early next year. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 2 December 2015.

Associate:

Date:  2 December 2015