Tate and Pfeiffer
[2010] FamCAFC 135
•7 July 2010
FAMILY COURT OF AUSTRALIA
| TATE & PFEIFFER | [2010] FamCAFC 135 |
| FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – application for extension of time to file Notice of Appeal – where there is no valid reason or explanation for the delay in filing a Notice of Appeal and in seeking an extension of time – where it is not apparent that there is a substantial issue to be raised on appeal – not satisfied the justice of the case requires an extension of time be granted – application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 1.14 |
| Gallo v Dawson (1990) 93 ALR 479 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Ms Tate |
| RESPONDENT: | Mr Pfeiffer |
| FILE NUMBER: | DGM | 383 | of | 2006 |
| APPEAL NUMBER: | SA | 33 | of | 2010 |
| DATE DELIVERED: | 7 July 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 July 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 27 November 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1259 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
That the Application in an Appeal filed on 2 June 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tate & Pfeiffer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 33 of 2010
File Number: DGM 383 of 2006
| MS TATE |
Applicant
And
| MR PFEIFFER |
Respondent
EX TEMPORE REASONS
This is an Application in an Appeal filed by the mother on 2 June 2010 seeking an extension of time in which to lodge an appeal against final parenting orders made on 27 November 2009 by Hughes FM.
In summary, those orders provided for the father to have sole parental responsibility of the child, for the father to consult the mother about important issues concerning the child, for the child to live with the father and for the child to spend time with his mother.
A Notice of Appeal must be filed within 28 days after the date of the orders appealed from, but a party may apply to the Court to extend that time limit pursuant to Rule 1.14 of the Family Law Rules 2004 (Cth), and that is, in fact, what has happened here.
In terms of the applicable principles, the fundamental issue in applications for an extension of time is whether that will enable the court to do justice between the parties, and the High Court decision which is often cited in this context is a decision of Gallo v Dawson (1990) 93 ALR 479, and in particular the judgment of McHugh J. His Honour said this 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 and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. 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: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. 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: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
Now, since that High Court decision, there have been a number of Full Court decisions of this Court referring to the principles set out by McHugh J and I refer to cases such as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392. In McMahon v McMahon (supra), Evatt CJ said that an applicant for leave to extend time must show that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on appeal and that no hardship or injustice is caused to the respondent which cannot be compensated by orders as to costs or otherwise.
Importantly though, in Tormsen (supra) the Full Court said that guidelines such as those set out by Evatt CJ in McMahon are factors to be considered in determining what the justice of the case requires and should not be treated as distinct hurdles to be satisfied before the applicant can succeed.
Thus the summary of that is that there are a number of factors to be considered but the overarching consideration is whether an extension of time is necessary or will enable the court to do justice between the parties.
In this case, I commence by addressing some of the relevant factors which need to be considered in determining what the justice of the case requires and the first factor I turn to is whether there are adequate reasons which explain the delay. Now, in this instance, to repeat, the judgment was delivered and the orders made on 27 November. The 28 days would have expired, without being precise, towards the end of December 2009. The application that is before me today is an application filed on 2 June, thus immediately there are two issues that arise. One is what is the explanation for not filing a Notice of Appeal prior to the 28 day period expiring, but secondly, in terms of looking at where the justice of the case lies, are there adequate reasons to explain the delay in bringing this application given that a further five months has passed. Addressing those issues, the only evidence that the applicant puts forward in regard to those matters is in her affidavit in support of the application where she deposes and summarising, that she did not appeal before Christmas as a result of her ex-partner, namely the respondent, telling her she could not. And she deposes that she believed him and she says – and I do not quite understand this, but this is what is in her affidavit - “I don’t want my son involved in this”.
In paragraph 2 of the affidavit, she says “I wasn’t prepared for court I should of had a lawyer and it should have been adjourned.” Now, I do not understand that those matters go directly to the issue of extension of time. It has been a common theme throughout what the applicant has put to me today that she was not prepared for the court hearing, she should have had a lawyer and she was in effect prejudiced as a result. That though goes to the merits of the appeal, although I can see that there is an indirect link between the two and I will come to that in a moment if I need to.
Now, pausing there, there was absolutely no evidence put before this Court by the applicant to explain the delay beyond the end of December, even if I accept that she had a reason for not filing the appeal within time. But I must say I find it difficult to accept what she says about that, namely, that she did not lodge an appeal simply because her ex-partner told her that she could not. It was perfectly open for her to seek some legal advice, to indeed speak to a duty lawyer at this Court to ascertain the position but there is no evidence that she considered that or indeed attempted to do that. Thus I have some difficulty in accepting that she would not lodge an appeal for that reason if she felt so aggrieved with the orders that she was considering an appeal.
With the period of time between the end of December and when she did file her application, I attempted to tease out from the applicant from the bar table what happened and she informed me that after the orders were made she determined that she wanted to appeal. She was told by her ex-partner she could not. She says she accepted that but then she consulted a lawyer. The timeframe is a bit unclear but she consulted a lawyer who she says advised her that she could appeal. She says that by that time the 28 days had expired, and she understood from the lawyer that she had to file an application seeking an extension of time. Thus she says in about January she, on the advice of and with the assistance of a lawyer or lawyers, prepared such an application. She says that she sent the documents into the Court, but she says that she heard nothing. She then, and still in January contacted the Court, spoke to the Regional Appeals Registrar, was told that the documents had not been received and was told, she says, that the Court would send out documents again for her to complete and return.
Now, I asked the applicant whether she had any evidence of this and she said that she had copies of the documents that she had sent in and that she had receipts from the post office, but she had not brought them to Court. I then sought an explanation from her as to the delay beyond that and initially she said to me that she was busy working and did not have the time to send in the application. But then she changed her story and indicated to me that she did prepare those documents again and sent them into the Court, but again the Court did not receive them. She said that she also had proof of that and it was all at home in her car. She again said that she had both copies of the documents sent in and the post office receipts.
It was roughly at that point that I requested the Regional Appeals Registrar to see if she had anything in the files that she retains which would help in establishing these things so that Ms Tate, the applicant, did not have to, for example, go home or we did not have to adjourn the matter. As a result the Regional Appeals Registrar has provided to me four sets of correspondence commencing at the end of April 2010 and spread through May 2010.
It is interesting to consider those documents. The first document, or first set of documents, comprises an Application in an Appeal signed by the applicant dated 27 April 2010. But in the orders sought, there is no sign of any application for an extension of time. The order seeks a parenting order. It is apparent that either the Regional Appeals Registrar or someone else in her office then advised the applicant that she had lodged incorrect forms, that it was not appropriate for an application for parenting orders to be made, and that if she was wanting to appeal the decision of the Federal Magistrate she needed an extension of time. And that was made clear to the applicant, if not over the telephone then in correspondence from the Regional Appeals Registrar back to the applicant. However, the applicant did not appreciate the advice that she was receiving and she persisted in sending back applications seeking parenting orders, not seeking extensions of time until finally the message was understood, and on 2 June, the application that is now before me was filed which does seek an extension of time.
I have recited that at some length because it raises doubts in my mind as to the accuracy of what Ms Tate has been telling me about what she says she has done to move this matter along, certainly after December 2009. It seems to me that, for example, if Ms Tate is correct and she sent an application seeking an extension of time, it strikes me as somewhat odd that the application received by the Court on 27 April or thereabouts is an application seeking a parenting order. Further it then took over a month to explain to Ms Tate that that was inappropriate and that what she needed to do was seek an extension of time.
The other circumstance which raises doubts in my mind about the accuracy of what Ms Tate is telling me is that she says that she consulted lawyers. Indeed, she said she consulted three lawyers and in response to me saying, “Well, didn’t they tell you these things and advise you as to what you had to do” and “Why haven’t you provided a fulsome affidavit, for example, today?” She said, “Well, the solicitors didn’t tell me that.”
I wanted to give Ms Tate the benefit of the doubt because she was quite confident in saying that she had copies of the documents at her home and that she had the receipts. Thus I stood the matter down to allow Ms Tate to go home and bring those documents to Court. I suggested to her that another way to do it might be that, if indeed it was the case that these documents were prepared in concert with lawyers, all she needed to do was to telephone those lawyers and they could fax the documents to the Court. However Ms Tate said, “Well, that’s a bit too hard. Because I had three lawyers, I’m not sure who I would need to contact.” And thus she said, “No, look, I will just go home and bring these documents to the court.”
When the Court resumed, Ms Tate appeared again and she was unable to present to me copies of any documents that she sent to the Court prior to April 2010, nor any post office receipts indicating that she did send any documents prior to then. What she has been able to produce is consistent with what is on the Regional Appeals Registrar’s file, which is a series of correspondence commencing in late April. Therefore, I do not accept what Ms Tate has put to me from the bar table as to attempts she says she has made to bring this application prior to April 2010. Obviously, I accept that from late April 2010 she has made appropriate efforts to bring this matter before the Court, but what remains unexplained is the gap between the end of December, or thereabouts, and the end of April.
Now, that is a serious matter. However, how I propose to treat that is that Ms Tate has put a reason for the delay in not filing within 28 days. I have expressed my doubts about that as being a valid reason. Further, there is no explanation that I accept as to why thereafter an Application in an Appeal has not been filed expeditiously seeking an extension of time.
I come then to the next relevant factor that I want to consider in terms of what the justice of the case requires and that is, using the words of Evatt CJ in McMahon, whether there is a substantial issue to be raised on appeal, or to use the words of McHugh J, namely, it is necessary to consider the prospects of the applicant succeeding in the appeal.
I have read closely the judgment of the learned Federal Magistrate. As is required, Ms Tate has filed a draft Notice of Appeal and the grounds of appeal that she sets out in that draft are firstly – and summarising – that she was denied procedural fairness in that she was not aware that the father sought orders for the child to live with him in the hearing. Just pausing there, that has been something that Ms Tate has repeated and, indeed, on more than one occasion this morning. However, I do not accept that that is the case. It is quite apparent from the Federal Magistrates Court file, which I have, that the application that the father had before the Court was an Amended Application filed on 26 January 2008, that the father was seeking orders that the child live with him and that the child spend time with the mother. Further the Federal Magistrate made no bones about this either. At the very commencement of her Honour’s judgment she says this in paragraph 2:
Both parties now seek orders for [B] to live primarily with them because of what they say are serious concerns about the other party’s capacity to adequately parent [B]. Each party denies the allegations of the other.
Thus there was no confusion or doubt in the Federal Magistrate’s mind that the father was seeking orders that the child live with him. Accordingly, for my part, I fail to see how the applicant has any prospects of succeeding on that particular ground of appeal.
The next ground of appeal is - and I quote - “[n]ot reasonable for Mag [sic] to make orders based on avail [sic] evid. [sic].” Now, there is no detail about that, and it is difficult for me to appreciate or understand precisely what the applicant is alleging in terms of any error made by the Federal Magistrate. All I can say is that upon a close reading of the Federal Magistrate’s judgment, her Honour has addressed in some detail the evidence that was before her in terms of the witnesses that were called and what each of them has said. Her Honour has also been quite careful in addressing the relevant sections of the legislation to determine what is in the best interests of this child. Thus I fail to see what issue the applicant is raising here and, certainly, to use the words of Evatt CJ in McMahon, it is not apparent that there is a substantial issue in relation to this ground to be raised on appeal.
The third ground of appeal is, and I quote:
didn’t give adequate weight to factors in s. 60CC
- intervention orders?
- family violence- child’s views
Again, a careful reading of the Federal Magistrate’s reasons for judgment demonstrate that her Honour did take into account all relevant factors under s 60CC to determine what is in the best interests of this child, including allegations of family violence and the child’s views.
What obviously the applicant is raising then is a question of weight. There are hurdles in the way of appellants succeeding on weight grounds, but it is not impossible. It is open for an appeal court to find that a judicial officer has given inappropriate or inadequate weight to certain factors and thus I make allowance for that. However looking at the specific topics raised in this ground of appeal, again I fail to see how there is a substantial issue to be raised here.
Ground 4 says, and I quote “[m]ade a mistake about facts.” Now, there is no particularity about that ground and, again, a reading of the Federal Magistrate’s reasons for judgment does not immediately evoke or demonstrate that her Honour has made a mistake about facts. As I say, her Honour carefully addressed the evidence that was before her and applied the legislation to those facts.
Perhaps though I should say this. What the applicant has also said to me today, and it is apparent from her documents, is that she now realises – or this is how she puts it, and I should be clear about that – “I needed a lawyer, and I should have applied for an adjournment. I didn’t and I’ve realised this, in effect, after the event.”
Now, unfortunately even if I add that to the grounds of appeal, that does not assist the applicant in this regard. A conscious choice was made by the applicant to appear self-represented. It is not apparent and I have not been referred to anything which indicates that there was, for example, an adjournment sought at any stage to enable the applicant to obtain legal advice or to have a lawyer represent her. I note that the Federal Magistrate commented in her reasons about this circumstance of the mother representing herself. In paragraph 3, her Honour says:
The mother had obvious difficulty understanding and dealing with the Court process. She failed to grasp the concept of cross examination and repeatedly made statements to the Court from the bar table, rather than asking questions of witnesses.
Then in paragraph 4, and this is the other side of the coin I suggest, her Honour says:
The mother is very articulate.
And I can say I agree with that from her representation today
she was able to express her views clearly
Again, that has been evident to me today
and did so repeatedly during the proceedings, including while other people were giving evidence. I am not critical of the mother who remained polite throughout the proceedings
Again, that is a trait that I have noted today
even when frustrated and upset. She was doing her best in the circumstances.
Moving then to the next factor which I want to mention, namely, the consequences for the parties of the grant or refusal of the application. If I grant the application then the consequences flow more to the respondent than the applicant. The respondent will then need to face and deal with an appeal almost eight months after the decision was given. In terms of the consequences of refusing the application, the mother would not be able to pursue an appeal against the orders made by the Federal Magistrate. Now, that may seem to be harsh in itself but it must be remembered that these are parenting orders. Certainly, they are final orders but, and I understand this is what the applicant alleges in effect, that – and this is my gloss on it – the orders have not worked. There have been difficulties associated with them. Now, what the applicant must appreciate is that if she is able to establish a change of circumstances which requires the Court to reconsider parenting orders then she can bring another application. That is an important precondition though. It is not simply saying, “Well, I want to have another go” or “Well, I didn’t do very well last time because I didn’t have a lawyer so I want another go.” It requires a sufficient change of circumstances to warrant another hearing about the issue. Thus final orders are only final as long as they address and accommodate the best interests of the child.
Then coming to the overarching issue of what the justice of the case requires. This is a case which started in the Federal Magistrates Court in 2006, and it is now 2010. Final orders were made in November 2009. The child is 12, coming up to 13. As the Federal Magistrate made clear in her reasons for judgment, at that time it was necessary to conclude the proceedings in the interests of the child and I can only endorse that. But what is important for me here is that none of the factors that I have identified, namely, the reasons for the delay, whether there is a substantial issue to be raised on appeal, the consequences for the parties of the grant or refusal of the application would lead me to find that the justice of the case requires that an extension of time be granted.
In these circumstances the application should be dismissed.
I certify that the preceding 32 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 7 July 2010.
Associate
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