TIPTON & KNIGHTLY
[2014] FamCAFC 52
•2 April 2014
FAMILY COURT OF AUSTRALIA
| TIPTON & KNIGHTLY | [2014] FamCAFC 52 |
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for leave to file a notice of cross appeal out of time – Application of the principles in Gallo & Dawson - Where the delay is adequately explained – Where there is no prejudice to the other party – Where to allow the application would not delay the appeal - Application allowed.
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Clivery & Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479
| APPLICANT: | Ms Tipton |
| RESPONDENT: | Mr Knightley |
| FILE NUMBER: | LEC | 553 | of | 2011 |
| APPEAL NUMBER: | NA | 80 | of | 2013 |
| DATE DELIVERED:: | 2 April 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 2 April 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 November 2013 |
| LOWER COURT MNC: | [2013] FCCA 1956 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Universal Law |
| COUNSEL FOR THE RESPONDENT: | In person |
Orders
That the applicant be given leave to file a Notice of Appeal endorsed as a cross-appeal in relation to the orders made by Judge Demack made on 22 November 2013, before 4:00 pm 11 April 2014.
There be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tipton & Knightley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 80 of 2013
File Number: LEC 553 of 2011
| Ms Tipton |
Applicant
And
| Mr Knightley |
Respondent
REASONS FOR JUDGMENT
This is an application by Ms Tipton for leave to file a notice of cross-appeal out of time.
On 22 November 2013 Judge Demack made orders relating to the parties’ child, C (aged six). On 20 December 2013 Mr Knightley filed a notice of appeal against those orders. Ms Tipton filed the present application on 17 February 2014.
Rule 22.08 of the Family Law Rules 2004 (Cth) (“the Rules”) requires that a cross-appeal be filed 14 days after the notice of appeal is served on the cross-appellant. Ms Tipton was served with Mr Knightley’s notice of appeal on 14 January 2014. Ms Tipton is therefore some three weeks out of time. I note that Ms Tipton’s solicitor had attended the Brisbane family law registry and attempted to file the notice of cross-appeal on 29 January 2014, being one day out of time.
The affidavit filed in support of the application by the solicitor for Ms Tipton explains that on 14 January 2014 her client was served with the notice of appeal filed 20 December 2013. Service was affected by Registered Post and outside the 14 day limit prescribed by r 22.05 of the Rules.
Ms Tipton advised the solicitor shortly after service that day.
The child of the parties gave his mother the draft index to the appeal on 23 January 2014, having returned from time with his father. Ms Tipton instructed her solicitor to file a notice of cross-appeal. Advice from counsel was sought on 23 January 2014.
On 28 January 2014 the solicitor sought agreement from Mr Knightley to amend the orders to avoid a cross-appeal. In a letter dated 5 February 2014, Mr Knightley had indicated that he could not agree to Ms Tipton’s proposed amendment to the orders.
The solicitor expected to be able to file the notice of cross-appeal electronically but on 28 January 2014 discovered that it was necessary for the notice to be filed in the Brisbane family law registry. It was not logistically feasible for the solicitor or Ms Tipton to attend in Brisbane that afternoon.
On 29 January 2014 the solicitor attended on the Brisbane registry – the filing of the notice was then out of time. The notice of cross-appeal was returned.
The proposed notice of cross-appeal is in relation to only two of the orders made by Judge Demack – orders 16 and 17, which I set out below:
(16) That the mother shall be at liberty to take the child abroad for up to eight (8) weeks in each odd numbered year provided that this time does not include any school holiday time that the child would normally spend with the father unless otherwise agreed.
(17) That the father shall be at liberty to take the child abroad for up to eight (8) weeks in each even numbered year provided that this time does not include any school holiday time that the child would normally spend with the mother unless otherwise agreed.
The proposed grounds of cross-appeal assert that there is an error in the orders, for example, where “odd” appears it should be “even”. This mistake affects Ms Tipton’s ability to take the child overseas.
Mr Knightley asks for the application to be refused. His appeal is in relation to paragraphs 7, 13 and 15 of the orders. Order 7 relates to the time that the child spends with each of his parents. Orders 13 and 15 relate to the issue and holding of a passport for the child.
Mr Knightley’s grounds of appeal are entirely unhelpful. Reference is made to a number of sections of the Family Law Act 1975 (Cth). It is simply asserted that “the Family Law Act 1975 has not been upheld”.
In the substantive appeal Mr Knightley seeks the following orders:
1. That [t]he Father[’]s personal details including his date of birth be correct.
2. That the child be returned to the father[’]s care in Sydney before the commencement of the 1st school term in 2014
3.In the event that the mother live within half hour where the father and child reside, that the child reside with the mother and father at all times agreed to between the parents in writing and failing agreement, as following:
(a) With the mother from Friday 6:30pm until Monday 3:00 pm (During the school term)
(b) With the father from Monday 3:00pm until Friday 6:30 pm (During the school term)
TRAVEL AND OVERSEAS TRAVEL
5. That either parent within seven (7) days of written request by the other parent to do so, do all things and sign all consents necessary for an Australian passport to be issued in the name of the child. And in default of their [compliance] with such request the [necessity] for the consent to the issue of a passport to the child to be dispensed with.
6. That any passport issued to the child be held by a stakeholder agreed by the parents and in default of agreement, by the child[’]s grandparents [Ms J] or [Mr M] or the father[’]s solicitor [Mr Y] of [a law firm]. Such passport to be released forthwith to the requesting parent on a written request to both the stakeholders if any and to the other parent.
In his affidavit Mr Knightley explained that he served his notice of appeal upon Ms Tipton because he believed the solicitor was no longer acting for her. The affidavit is largely argumentative and asserts that no adequate explanation for the delay has been demonstrated.
The balance of the affidavit makes various complaints about Ms Tipton and is irrelevant to the issue of filing the cross-appeal.
Relevant Principles
The Full Court in Clivery & Conway [2007] FamCA 1435 summarised the well-known principles in Gallo v Dawson (1990) 93 ALR 479:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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.
It must be remembered that in Gallo & Dawson, McHugh J observed that the object of allowing an extension of time “is to ensure that those Rules which fix times for doing acts do not become instruments of injustice”.
Here, the delay is of little consequence and adequately explained. It is difficult to make an assessment at this point, but it appears that there may be some merit in the cross-appeal. Significantly, Mr Knightley is not prejudiced by the grant of leave to file the cross-appeal out of time, having been notified before the expiry of the 14 day time limit that Ms Tipton would file a cross-appeal, failing agreement. Having regard to the parties’ conduct and the history of the proceedings, including that Mr Knightley’s service of his notice of appeal fell outside the time provided for in the rules, leave should be granted. Mr Knightley has not been put to any cost in defending this application and the cross-appeal will not delay the proceedings nor increase the costs.
Costs
Although Mr Knightley recognised that he is not entitled to costs being a self-represented litigant, he did ask for an order that the Ms Tipton pay him $5,000 as compensation. There is no such concept of monetary compensation within the Family Law Act 1975 (Cth).
In these circumstances, it is appropriate that no order be made for costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered 2 April 2014.
Associate:
Date: 2 April 2014
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