TAEBKE & TAEBKE
[2018] FamCAFC 25
•15 February 2018
FAMILY COURT OF AUSTRALIA
| TAEBKE & TAEBKE | [2018] FamCAFC 25 |
| APPLICATION IN AN APPEAL – Reinstatement – Where the appeal was deemed abandoned because the applicant failed to file a draft index to the appeal books in the prescribed time – Where it cannot be said that the grounds of appeal are devoid of merit – Appeal reinstated. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.13 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Taebke |
| RESPONDENT: | Mr Taebke |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Hernandez |
| FILE NUMBER: | SYC | 8573 | of | 2016 |
| APPEAL NUMBER: | EA | 2 | of | 2018 |
| DATE DELIVERED: | 15 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 13 February 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 3132 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bridgett (direct brief) |
| SOLICITOR FOR THE RESPONDENT: | Mr Shepherd of Shepherds the Family Law Specialists |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fermanis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Claremont Legal |
Orders made on 13 February 2018
The appeal EA 2 of 2018 be reinstated.
The Appellant file and serve a draft appeal index no later than 4.00pm Monday 26 February 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Taebke & Taebke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 2 of 2018
File Number: SYC 8573 of 2016
| Ms Taebke |
Applicant
and
| Mr Taebke |
Respondent
and
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 13 February 2018 I made orders reinstating the appeal of Ms Taebke (“the mother”). These are the reasons for those orders.
The appeal relates to interim parenting orders made by Judge Kemp on
14 December 2017 between the mother and Mr Taebke (“the father”) in relation to the parties’ only child, C, who was born in 2007 (“the child”). The effect of the orders was to change the child’s residence from living with the mother to living with the father and that, for a period of time after the child moved residence, the child would spend no time with the mother. The child had lived with the mother since separation.
The orders provided that after three months from the date of the orders the mother spend time with the child each alternate weekend, conditional upon her returning the child to school on the Monday. If the mother did not comply with the orders, there would be a further three months during which the time that the child spent with the mother would be suspended.
On 22 December 2017 the mother filed a Notice of Appeal against the orders made by the primary judge.
On 8 January 2018 the Appeal Registry forwarded a letter to the mother informing her of the obligation to file and serve a draft index to the appeal books by 4.30 pm on 19 January 2018. The draft index was not filed by this date and so by operation of r 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”) the appeal was deemed abandoned from 4.30 pm on 19 January 2018.
By Application in an Appeal filed on 25 January 2018, the mother sought that the appeal be reinstated. It is beneficial to give some brief background as to his Honour’s reasons to give context to the application and the orders.
Background
The parties were married in 2006 and separated on a final basis in October 2016. Following separation the child lived with the mother and did not spend any time with the father. On 17 May 2017 in an Amended Initiating Application, the father sought interim orders that the parties have equal shared parental responsibility and that the child spend time with him for five nights in each fortnight. The mother in her response filed on 22 March 2017 sought orders that the parties have equal shared parental responsibility for the child and that the child spend time with the father as the child wished. An Independent Children’s Lawyer was appointed to the proceedings on 27 March 2017. The parties attended a Child Dispute Conference on that same day. The family consultant provided a memorandum which identified that the mother alleged that the father was physically and psychologically abusive to her during their relationship. The mother also made serious allegations about the father physically and emotionally abusing the child. The father denied the mother’s allegations.
Consent orders were made on 9 May 2017 for the child to spend supervised time with the father at a contact centre for two hours each weekend. The parties then attended a Child Inclusive Conference on 13 June 2017. The memorandum provided to the court identified the father’s allegations that the mother was psychologically abusive of the child in that she had prevented the child from spending time with the father and having a relationship with him. The mother denied these allegations and alleged that the child had told her he did not want to spend time with the father. Both this and the previous memorandum provided to the court identified that the parenting relationship between the parties was extremely poor.
Further consent orders were made on 21 June 2017 requiring the mother to ensure that she facilitated the child’s time with the father at the contact centre. On 4 September 2017 orders were again made requiring the mother to facilitate the father’s time with the child. It seems that despite these orders, supervised time only occurred on two occasions.
A single expert, Dr R, was appointed in the proceedings. Dr R provided a report to the court in September 2017 that recommended that the father have sole parental responsibility for the child, that the child live with the father and there be no contact with the mother for three months. The interim orders ultimately sought by the Independent Children’s Lawyer and father were in these terms.
The primary judge considered that unless these orders were made then there would be a very limited potential for the child’s estrangement from the father to be repaired, particularly given the mother’s reluctance to support the father’s time with the child in accordance with previous interim orders.
Application for reinstatement
In support of her application for reinstatement the mother says that although she filed her Notice of Appeal on 22 December 2017 she was only informed that the appeal had been “granted”, which I take to mean accepted for filing, on 8 January 2018.
The mother asserts that she made numerous attempts to view the court file to prepare the draft index to the appeal books but was told on each occasion by the court staff that the file was with the primary judge and was not available for her to review. The mother was only given access to the file on 18 January 2018. Although the mother was aware that the draft index was due on 19 January 2018 she said that without viewing the file she was unable to complete the index as she was unsure of the dates of the affidavits and what other relevant documents she should include. While it was argued by the solicitor for the father that it was possible for an appeal index to be compiled by reference to other sources, given that the mother was unrepresented, I am quite prepared to accept that she was not in a position to consider those options and accept her reason as to why she was unable to prepare the appeal index in the time specified.
The mother also states that other events since the making of the orders affected her ability to prepare the draft index in time. It appears that the child was placed in the father’s care on 15 December 2017 in accordance with the primary judge’s orders, but ran away from the father on 17 December 2017 and it seems that the child was then in the mother’s care for some time. While not the subject of evidence, counsel for the mother submitted that since the time of the hearing, the mother has had to move out of her premises and it was argued that that too created difficulties in her preparing the appeal index.
Consideration
Gallo v Dawson (1990) 93 ALR 479 sets out the principles relating to an extension of time to appeal. These principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88). The central principle is that such applications should be allowed where to do otherwise may cause a substantial injustice. In Gallo v Dawson 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 … 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 …
(References omitted)
In dealing with appeals that have been properly filed, but not appropriately prosecuted, the appeal will usually be reinstated unless some exception exists to the contrary. The consideration of whether the appeal is “arguable” also requires consideration. In Jackamarra v Krakouer (1998) 195 CLR 516 Brennan CJ and McHugh J said at [7]:
… 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.
(Emphasis added) (Footnotes omitted)
It is necessary to consider whether the appeal is so devoid of merit that it would be futile to make the order sought. However, it must be clearly shown that the appeal would fail before an applicant is denied the right to have his or her appeal heard.
The mother’s Notice of Appeal sets out fifteen challenges to his Honour’s orders. The grounds, in essence, challenge his Honour’s findings as to the father’s history of family violence and assert that the primary judge placed too much weight on the single expert’s evidence and gave insufficient weight to the child’s wishes. The mother also asserts a denial of procedural fairness.
In my view, the appeal has sufficient merit such that, all other things being equal, it should be reinstated. I am conscious that the orders appealed from are not final orders, however, there is no indication of when a final hearing might be allocated in the Federal Circuit Court. Further, given the information about events that have occurred since the orders were made, in my view it is appropriate that the appeal be reinstated.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 15 February 2018.
Associate:
Date: 15 February 2018
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