Sullivan & Tyler (No. 2) - [2015] FamCAFC 20

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER (No. 2)

[2015] FamCAFC 20

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – where the appeal was deemed abandoned – where the applicant sought to appeal final orders preventing her from spending any time with the child – where the applicant failed to file the appeal books by the due date – where there was confusion as to the date upon which the appeal books were due to be filed – where the applicant promptly filed the application for reinstatement – where at an interlocutory stage it could not be said that the appeal was without merit – appeal reinstated.

Family Law Rules 2004 (Cth) r 22.21

Bemert & Swallow (2010) FLC 93-441

APPLICANT:

Ms Sullivan

RESPONDENT:	Mr Tyler
Independent children’s lawyer:	Legal Aid New South Wales
File Number:	SYC	889	of	2008

APPEAL NUMBER:

2014

DATE DELIVERED:

5 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn and Strickland JJ

HEARING DATE:

5 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Holmes

SOLICiTOR FOR THE RESPONDENT:

KD Holmes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Berry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

Orders

Appeal EA 47 of 2014 filed on 23 April 2014 against the orders of Watts J made on 26 March 2014 be reinstated.
Order 3 of the orders made by Registrar Halbert on 24 June 2014 concerning the filing of the appeal books be varied so the date “6 March 2015” is substituted for the date “25 August 2014” where it appears in that Order.
Order 4 of the orders made by Registrar Halbert on 24 June 2014 be varied to provide “That pursuant to Rule 22.21 of the Family Law Rules 2004 (Cth) the appeal will be taken to be abandoned if the Appellant Mother fails to file the appeal books by the due date.”.
Order 5 of the orders made by Registrar Halbert on 24 June 2014 concerning the filing of the summary of argument and list of authorities be varied so the date “6 March 2015” is substituted for the date “25 August 2014” where it appears in that Order.
Order 6 of the orders made by Registrar Halbert on 24 June 2014 concerning the filing of the summary of argument and list of authorities by the father be varied so the words “within 14 days after the service of the Appellant Mother’s summary of argument” are substituted for the words “on or before 22 September 2014”.
Notwithstanding the orders made by Registrar Halbert on 24 June 2014 as to the contents of the appeal books:
a)The mother may provide the transcript in electronic form provided that she files and serves on the father one copy of the appeal book which contains printed transcript.
b)The mother need only serve one copy of the appeal book on the Independent Children’s Lawyer.
Otherwise the orders and notations made by Registrar Halbert on 24 June 2014 continue in full force and effect.
Notwithstanding Order 3 of the orders of Ainslie-Wallace J made on 24 June 2014, there be liberty to the Independent Children’s Lawyer to file and serve a summary of argument and list of authorities and in the event the Independent Children’s Lawyer does so, the Independent Children’s Lawyer file and serve the same on both parties within 14 days after service of the father’s summary of argument.
Insofar as Orders 7, 9 and 10 of the orders of Ryan J made on 11 August 2014 include appeal EA 47 of 2014, such orders be discharged.
The costs of the hearings before Ryan J on 11 August 2014 and 20 January 2015, and the costs of the reinstatement application heard by the Full Court on 5 February 2015, be treated as costs in the appeal and reserved to the Full Court that hears the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler 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 SYDNEY

Appeal Number: EA 47 of 2014
File Number: SYC 889 of 2008

MS SULLIVAN

Applicant mother

And

MR TYLER

Respondent father

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

BRYANT CJ

There are two applications before the Court today. The first of these is an application for security for costs in the appeal EA 51 of 2013, and the second of these is an application for reinstatement of the appeal EA 47 of 2014, which is an appeal against parenting orders made by Watts J on 26 March 2014. These reasons concern the reinstatement application.
The application before the Court arises because the Eastern Appeals Registrar informed the mother by email on 22 October 2014 that, as she had not complied with orders made by Ryan J on 11 August 2014 to file her appeal books by 6 October 2014, the appeal had been taken to be abandoned pursuant to the Family Law Rules 2004 (Cth). The mother’s application before the Full Court today, filed on 30 October 2014, is to have the appeal reinstated.
The matter has a long and complex history with litigation over living arrangements for the parties’ one child having occurred over at least a six-year period. I need not set out the complex factual background as it appears in the judgment of Watts J, delivered on 26 March 2014, and in a number of other judgments which have been delivered in this matter. What is relevant to the application today is that Watts J ordered that the father have parental responsibility for the child in relation to all long term major decisions, and that the child live with the father and spend no time with the mother. The child was permitted to have electronic communication with the mother if he wished.
The mother, unsuccessfully, applied to stay the orders and has discontinued her appeal against the refusal to grant a stay. The circumstances leading to that decision are well explained in the judgment of Watts J, and the proceedings today do not necessitate their repetition. I do no other than note the complexity of the case, and the significance and gravity of the orders made by his Honour.
In November 2013 the mother was convicted by the District Court of New South Wales of breaching section 65Y of the Family Law Act 1975 (Cth) in unilaterally removing the child from Australia. It is understood the mother has appealed the conviction and sentence, and a decision is awaited. The mother filed a Notice of Appeal against the orders of Watts J on 23 April 2014, containing 20 grounds of appeal. The draft appeal index was filed on 21 May 2014. On 24 June 2014, Ainslie-Wallace J granted the mother’s application for expedition and ordered the Court to provide the mother with copies of transcript, and excused the independent children’s lawyer from further appearance in the appeal.
The Appeals Registrar conducted a procedural hearing, also on 24 June. At the hearing the mother was ordered to file four copies of the appeal books by 25 August 2014. Order 4 of the Appeal Registrar’s orders stated that, pursuant to rule 22.21 of the Family Law Rules, the appeal would be taken to be abandoned if the mother failed to file the appeal books by the due date. The appeal was then listed to be heard on 14 October 2014.
On 11 August 2014 a number of applications in the appeal, and other appeals, came before Ryan J for directions. For reasons not germane to this application, by agreement the order for expedition made on 24 June 2014 was discharged and the hearing of this and other appeals listed to commence on 14 October, was vacated. Order 9 of the orders made by Ryan J on 11 August 2014 required the mother to file and serve her summary of argument and list of authorities in respect of all appeals on or before 27 October 2014. Orders in respect of two other appeals, EA 90 and EA 91, were also made but those appeals were subsequently abandoned.
On 22 October 2014 the Eastern Appeals Registry advised the mother in writing that the appeal books in appeals EA 51 of 2013 and EA 47 of 2014, together with the abandoned appeals, were to be filed by 6 October 2014. As the appeal books had not been filed, the Eastern Appeals Registry advised the mother that the appeals would be deemed abandoned.
The mother subsequently wrote to the Eastern Appeals Registry on 23 October 2014 advising them that she had filed the appeal books and summary of argument in appeal EA 51 of 2013, which was correct, and thus the appeal was not abandoned. As to appeal EA 47 of 2014, the mother stated that she did not realise she had to file a summary of argument by 27 October 2014 as she believed that she had stayed the appeal pending the hearing of her appeal against criminal conviction and sentence. In that letter she also sought an extension of time to prepare the appeal until 30 November 2014.
Subsequently it was confirmed with the mother on 24 October 2014 that appeal EA 51 of 2013 remained on foot. The correspondence further stated that, as the appeal books in EA 47 of 2014 were not filed by 6 October, the appeal was deemed abandoned, and that if the mother wished to pursue the appeal she should file an application seeking reinstatement and a supporting affidavit at her earliest opportunity. The mother filed an application and supporting affidavit on 30 October 2014, which is the present application. In her affidavit supporting her application for reinstatement, the mother asserts that the orders made on 11 August 2014 refer to the appeal books for the two abandoned appeals and do not mention or refer to appeal number EA 47 of 2014.
The mother asserts that she believed that all orders pertaining to EA 47 of 2014 were discharged and that, therefore, she did not breach any date for filing the appeal books. The mother further states she is working on the documents for the appeal but the workload is extensive because of the length of the judgment and transcript. The mother points to the injustice to her by the continuation of orders which do not allow her any contact with her child, and injustice to her child if he is denied a relationship with his mother. She also states that she cannot prepare a summary of argument in this appeal until the outcome of her appeal against the criminal conviction and sentence is known.
The reinstatement application came on before Ryan J on 20 January 2015. The mother sought to adjourn the application because of asserted ill-health, and did not appear at the hearing of the application. In her reasons for judgment, Ryan J noted that the mother wrote to the Court on Sunday, 18 January 2015, and to the solicitor for the father, seeking an adjournment because she was unwell. The father, through his solicitor, advised of his consent to the adjournment on the condition that the appropriate medical report was provided to explain her inability to prosecute the application. Ryan J, despite opposition from the father, adjourned the application to today, 5 February 2015, when there was listed before the Full Court, in any event, an application in EA 51 of 2013 that the mother provide security for costs in that appeal. Ryan J determined that the mother needed to provide proper medical evidence about her medical condition and why it was that her health issues impeded her ability to appear. She ordered, inter alia, that the mother file and serve evidence from her treating medical practitioner which dealt with matters contained in the mother’s email correspondence dated 18 January and 19 January 2015. The father’s costs were reserved to today. We apprehend that the mother has not filed any medical evidence to date, although she says it will be forthcoming.
The mother has filed extensive submissions in support of her application for reinstatement. I do not intend to dwell on them in detail, but simply acknowledge that they set out comprehensively the mother’s explanation as to why she says the appeal books were not filed. Essentially she says that non-compliance was not intentional, and that she interpreted the orders of 11 August 2014 to have discharged the earlier procedural orders of 24 June 2014. She further says that she had sought that appeal EA 47 of 2014 be stayed temporarily, and assumed that had been done. She points out, correctly, that the books and summary of argument for appeal EA 51 of 2013 had already been filed and that she had otherwise complied with orders.
It seems to me that, whether or not that assumption was a reasonable one on her part, there were a plethora of orders and hearings, and the Court should not be unduly harsh in the application of its Rules as a result. Whilst I agree with the comments of Ryan J at paragraph 7 of her judgment of 20 January 2015 that the orders of 11 August 2014 did not discharge the orders made by the Appeal Registrar on 24 June 2014 concerning the preparation of the appeal, nevertheless I am prepared to accept that some uncertainty may well have attended the orders, given the number of appeals and applications and correspondence. I am, therefore, prepared to accept that non-compliance was not intentional. The father, I accept, says that the Court should look at other matters attending the history of the matter and find that this breach was deliberate. However, in the circumstances, I am not prepared to find that it was so.
I further note, relevantly, that upon receiving an email dated 22 October 2014 from the Appeals Registrar advising the appeal was abandoned because of her failure to file the appeal books by 6 October 2014, that the mother on 30 October 2014 filed an application to reinstate the appeal. In my view, this application was, therefore, made promptly. I do not agree with the contention of the mother that the hearing of the appeal against conviction and sentence, currently pending in the Court of Criminal Appeal, will impact on her approach to this appeal which relates to parenting orders in respect of the child.
I appreciate the mother has a view that the two are linked. That is not a view that I share but it is not a basis that I am prepared to rely upon as being relevant to this application. However, I accept that, in the end, the mother may be able to persuade the Court, depending on the reasons for judgment, that there is some relevance. Notwithstanding what the mother has said in her material about this, she has, this morning, indicated to us a date upon which she would be in a position to file the appeal books if the appeal is reinstated.
The Family Law Rules, to which I have referred, require the Court to consider a number of matters, including the effect that reinstating the appeal would have on each party, and in relation to the administration of justice generally. It is unquestionably the case, in my view, that both the administration of justice in a general sense, and the more particular interest of the father and the child, is for these proceedings to be concluded as soon as possible. However, the administration of justice also requires consideration of the nature of the appeal and its significance, and the gravity of the orders.
The effect of the orders made by Watts J, which provide for the mother and child to have no contact are orders that are of considerable significance to all the parties and the child, and its consequences are, on any view, grave. In my view, it would not be appropriate, when considering the administration of justice, to prevent the mother from prosecuting the appeal in respect of these significant and, for her and the child, grave orders. By reference to the gravity of the orders, however, I am not commenting on their correctness. That is a matter for the court that ultimately hears the appeal.
The father has filed submissions in opposition to this application. I acknowledge the frustration which, no doubt, the father feels if the Court reinstates the appeal. However, as indicated, the mother did not take an undue amount of time in endeavouring to rectify what she says was a mistaken impression on her part and, in my view, to prevent her appealing the orders would create substantial injustice. There is also no doubt the father has done everything he can to comply and is ready to proceed. The mother has not. I am also conscious of the fact that a share of the single expert’s fees which the mother was required to pay remain outstanding.
Nevertheless, in my view, the appeal should be reinstated for the reasons outlined. However, I give this warning to the mother. This is the third indulgence that she has received from the Court in relation to this appeal. The first was when, at her application, Ainslie-Wallace J expedited the hearing. The mother was not then ready for the appeal to proceed on the expedited date, notwithstanding the Court had gone to some trouble to list it, and the effect on other people who might have expected their appeals to be heard having been displaced.
The second indulgence came when Ryan J adjourned the application to reinstate until today. She was entitled to dismiss it as the mother did not appear and did not have appropriate medical evidence to support her failure to attend. Nevertheless, she was granted a further indulgence. In my view, a further indulgence is now to be granted to the mother in relation to the appeal but I point out that the opportunities for the mother to expect the Court to give further indulgences are surely coming to an end.
I propose orders that will provide for the filing of appeal books and written submissions in support of the appeal. If they are not complied with, then the Rules will apply and the appeal will be taken to be abandoned. The mother would, I expect, find it very difficult to persuade the Court yet again to grant her an indulgence to reinstate the appeal if she does not comply with the orders.
May I also say to the mother that, from my experience, a plethora of interlocutory applications and appeals inevitably distracts from the substantive appeal and sometimes results in orders which mean that the substantive appeal is never heard. That remains a risk in this case.

Finn J

I agree that the appeal should be reinstated and also with the orders proposed by the Chief Justice. I do so because of the gravity of the effect of the orders appealed, and the confusion surrounding the date for the filing of the appeal books. I also take into account the mother’s prompt filing of the re-instatement application that has been before us today.

Strickland J

I agree with the reasons given by the presiding judge, and I agree with the orders proposed. I just want to, though, make some brief comments following on from what the presiding judge has said.
First, as to the obvious confusion arising from the orders and the email correspondence, there were, in fact, two emails sent by the Appeal Registrar, namely, one on 22 October 2014 and another on 24 October 2014, which resulted in the application that is before us today. Both of those emails advised the mother that her appeal was deemed abandoned pursuant to the Rules of Court because of the failure to file appeal books within the time prescribed by previous orders.
As the Chief Justice has identified, there was initially an order of 24 June 2014 made by the Appeal Registrar which required appeal books to be filed by the mother by 25 August 2014. Then there were orders of 11 August 2014 made by Ryan J, and, as I read those orders, only Orders 1, 2, 9, and 10 were in relation to appeal number EA 47 of 2014. In my view, those orders did not discharge the order made by the Appeal Registrar for the filing of appeal books on or before 25 August 2014. Ryan J, though, in those orders included orders for the filing of appeal books in other appeals, and those appeal books were to be filed by 6 October 2014.

The Appeal Registrar proceeded on the basis that those latter orders applied to appeal EA 47 of 2014, and that was the basis of the emails sent on 22 October 2014 and 24 October 2014. In my view, that was not correct. However, the mother took it a step further, and puts to us that the orders of 11 August 2014 discharged the order of 24 June 2014 for the filing of appeal books in EA 47 of 2014. As the Chief Justice has said, and I agree entirely, that is not a correct interpretation of the orders. In any event, whatever the position, the appeal books have not been filed, and the appeal has appropriately been treated as being abandoned, requiring, of course, the application before us today.
Secondly, although the Rules of the Court do not set out the factors to be taken into account in an application such as this, and authorities such as Bemert & Swallow (2010) FLC 93-441 do, one factor that I want to touch on that arises from those authorities, and, really, was the primary submission made on behalf of the father, is that the appeal is devoid of any merit and as a result, the application should be dismissed.
Now, this, of course, is an interlocutory application, and it is not possible to be definitive as to the merits of the appeal given that we do not have before us the full range of material that a Full Court hearing the appeal would have. The question for this court is whether it can be said that the appeal has no chance of success. On the material we have before us today, I do not consider that we can be satisfied of that. That is not to say that the appeal will be successful, but merely that we cannot be definitive about that at this stage of the proceedings.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant and the Honourable Justices Finn and Strickland delivered on 5 February 2015.

Associate:

Date: 18 February 2015