Suskain and Materanzi
[2014] FamCAFC 233
•27 November 2014
FAMILY COURT OF AUSTRALIA
| SUSKAIN & MATERANZI | [2014] FamCAFC 233 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application for reinstatement of an appeal deemed abandoned – Where the delay is of little consequence – Where the delay is adequately explained due to difficulties in obtaining the transcript of proceedings – Where the applicant has taken all other steps to prosecute the appeal – Where there is little prejudice to the respondent - Application allowed. |
| Family Law Act 1975 (Cth) |
| Gallo & Dawson (1990) 93 ALR 479 |
Jackamarra v Krakouer (1998) 195 CLR 516
| APPLICANT: | Ms Suskain |
| RESPONDENT: | Mr Materanzi |
| INDEPENDENT CHILDREN’S LAWYER: | Norman O'Dowd |
| FILE NUMBER: | SYC | 776 | of | 2010 |
| APPEAL NUMBER: | EA | 95 | of | 2014 |
| DATE DELIVERED:: | 27 November 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ryan & Benjamin JJ |
| HEARING DATE: | 27 November 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 June 2014 |
| LOWER COURT MNC: | [2014] FamCA 454 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Blackah with Ms Murphy (direct brief) |
| SOLICITOR FOR THE APPLICANT: |
| SOLICITOR FOR THE RESPONDENT: | Ms Manfre |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Christie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The application that the appeal EA 95 of 2014 be reinstated is allowed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Suskain & Materanzi 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 95 of 2014
File Number: SYC 776 of 2010
| Ms Suskain |
Applicant
And
| Mr Materanzi |
Respondent
REASONS FOR JUDGMENT
By way of application filed on 28 October 2014, Ms Suskain (“the mother”) seeks the reinstatement of appeal EA 95 of 2014. Mr Materanzi(“the father”) opposes the application by way of response filed 17 November 2014. The Independent Children’s Lawyer does not oppose the application.
History regarding reinstatement
On 27 June 2014 Aldridge J made final parenting orders which provided that a 10 year old child live with her father and spend no time with her mother. On 24 July 2014 the mother filed a notice of appeal against those orders.
On 2 September 2014 the hearing of the appeal was expedited. Registrar Halbert ordered the applicant to file copies of the appeal book and the summary of argument on or before 7 October 2014. Order 5 of those orders of 2 September 2014 provided that:
That pursuant to Rule 22.21 the appeal will be taken to be abandoned if the appellant fails to file the appeal books by the due date. If the appellant seeks an extension of time for filing of the appeal books, such extension should be sought with the written consent of the other party, or if such consent is not forthcoming, by filing an application in an appeal, with supporting affidavit, seeking such extension of time, prior to the close of business on the due date for filing of the appeal books being 7 October 2014.
A summary of argument and list of authorities were filed on behalf of the applicant on 7 October 2014, within time.
In an affidavit filed on 17 November 2014, the father explains that on 7 October 2014 he and the Independent Children’s Lawyer received correspondence from the mother’s solicitors requesting their consent to an extension of time for the filing of the appeal books as the mother had made application for legal aid funding to meet the cost of obtaining the transcript.
On 14 October 2014, the time for the filling of the appeal books was extended by consent to 4:00 pm on 21 October 2014. The time limit expired without the appeal books being filed.
As previously explained, this application was filed on 28 October 2014, one week after the time limit expired.
An affidavit filed by the mother’s then solicitor on 28 October 2014 deposes that the appeal books were not filed within time due to difficulties in obtaining the transcript after a grant of legal aid was refused on 13 October 2014. The solicitor says that a quote of approximately $8,000 was received for the preparation of the transcript, a cost which the applicant has no means to meet. The solicitor further explains that he did not have various other documents referred to in the appeal book index, which he was able to obtain from the Independent Children’s Lawyer. It appears that the solicitor was acting for the mother on a pro bono basis.
On 24 October 2014 the father was informed by the Regional Appeal Registrar that appeal EA 95 of 2014 had been deemed abandoned. On 31 October 2014 the solicitor for the mother wrote to the other parties seeking their consent to the reinstatement of the appeal, and notified the parties that should the appeal be reinstated, the mother would make application for the court to provide the transcripts.
On 4 November 2014 the mother filed the appeal books absent the transcript, two weeks after the extended time limit.
On 17 November 2014 the mother’s solicitor filed a notice of ceasing to act.
Principles of reinstatement
Rule 22.44 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a party may make application for the reinstatement of an appeal taken to have been abandoned under the Rules.
In Gallo & Dawson (1990) 93 ALR 479 McHugh J said at [480]:
…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…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…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…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.
Thus, it can be seen that the discretion should be exercised where strict compliance with the rules would not do justice between the parties. When balancing the competing interests of the parties, the serious effect of the Rules must be contemplated.
The solicitor appearing for the father submitted that the application for reinstatement should not be allowed as on 14 October 2014, when the extension of time to file the appeal books was sought, the mother did not disclose that the previous day she had been refused a grant of legal aid and had no capacity to obtain the transcript otherwise. Submissions were also made regarding the mother’s delay in applying for legal aid one month after the making of the primary orders.
The delay is of little consequence in time and adequately explained.
It cannot be said that there is prejudice to the father and the Independent Children’s Lawyer in reinstating the appeal. The mother’s summary of argument and list of authorities were filed within time. The parties were on notice on 7 October 2014 that the mother was having difficulties in obtaining the transcript. This application was made relatively soon after the expiry of the time limit, and the parties were shortly thereafter informed of the mother’s intention to make application that the court provide the transcript.
The mother has since taken all steps, absent the filing of transcript, to comply with the procedural orders required by her to prosecute the appeal. The appeal books have been filed and served.
It is not necessary to consider the merits of the appeal in any detail. As Brennan CJ and McHugh J said at [7] of Jackamarra v Krakouer (1998) 195 CLR 516:
It is understandable that, where the applicant's right of appeal has gone,
courts should insist, as they do, that the time for appealing will not be extended unless the proposed appeal has some prospects of success.But once an appeal has been lodged, different considerations apply. An appeal, honestly lodged by a suitor within time, "must be investigated and decided in the manner appointed". If the appeal is frivolous, it can be disposed of summarily. If there is gross delay in prosecuting the appeal, it may be dismissed for want of prosecution. If it fails to comply with a particular rule, the rules of court may entitle the respondent to strike it out. But the merits of the appeal are not a relevant consideration where the application concerns an extension of time for taking a step in prosecuting the appeal unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time.
(Footnotes omitted)
It cannot be said that the appeal is devoid of merit. The appeal should be reinstated.
Costs
No application was made for costs of the application.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 27 November 2014.
Associate:
Date: 27 November 2014
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