Tisoni and Maron - [2016] FamCAFC 154

FAMILY COURT OF AUSTRALIA

TISONI & MARON

[2016] FamCAFC 154

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a Notice of Appeal – Where the explanation for delay is not satisfactory – Where there is no merit to the proposed grounds of appeal – Application dismissed.

Family Law Act 1975 (Cth) s 117(2A)

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
Jackamarra v Krakouer and Anor (1998) 195 CLR 516

Norbis v Norbis (1986) 161 CLR 513
Sedrak v Carney and Anor [1999] 3 VR 95

APPLICANT:

Ms Tisoni

RESPONDENT:

Mr Maron

FILE NUMBER:

PAC

2037

2014

APPEAL NUMBER:

2016

DATE DELIVERED:

18 August 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

29 July 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 February 2016

LOWER COURT MNC:

[2016] FCCA 1279

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

The applicant in person

SOLICITOR FOR THE RESPONDENT:

Saldaneri & Associates

Orders

The Amended Application in an Appeal filed 18 May 2016 is dismissed.
There be no order as to costs.

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 Tisoni & Maron 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 77 of 2016
File Number: PAC 2037 of 2014

Ms Tisoni

Applicant

And

Mr Maron

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 9 May 2016 and amended on 18 May 2016, Ms Tisoni (“the mother”) seeks an extension of time in which to file a Notice of Appeal against orders made by Judge Newbrun on 23 February 2016.
On that day, an Application in a Case filed by the mother on 29 June 2015 was listed for hearing. However, the mother had decided she did not want to proceed with the application and on the morning of the hearing informed the Court that she sought to withdraw it. Judge Newbrun dismissed the application and ordered the mother to pay the costs of Mr Maron (“the father”).
In order to understand the mother’s explanation for her delay in filing her Notice of Appeal, it is necessary to give some short background. These facts are, in part, drawn from the transcript of the proceedings before the primary judge on 23 February 2016.
The parties have a three year old child.
On 20 February 2015, the court made consent parenting orders. At that time the mother was represented by a solicitor and a barrister.
On 29 June 2015 the mother filed an Application in a Case seeking to set aside those orders. The primary judge described the application thus:
4.She states that she was not prepared on the day that the consent orders were made, 20 February 2015. She states that she felt, inter‑alia, extremely intimidated and pressured into making hasty decisions, which she was not given enough time to consider.
The Application in a Case was fixed for hearing on 23 February 2016. On that occasion a solicitor appeared for the mother. Her lawyer informed the court that:
I have just been instructed at the eleventh hour, and I have brought myself up to speed, and I’ve had a discussion with my friend. I’ve also guided my client, as she did not have some guidance for a period of time. In relation to the application in a case, I have discussed with my friend that we would be seeking to withdraw that application in a case.
The lawyer agreed that she was content to have the application dismissed. The primary judge then proceeded to hear the father’s application for costs of the Application in a Case and made the following order:
The mother shall pay 50 per cent of the father’s costs in relation to the mother’s Application in a Case filed 29 June 2015, such costs to be agreed or assessed with the mother having 6 months to pay such costs.

The principles to be applied

The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J said:
…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. 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 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 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 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. 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.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal.

Delay

I shall deal first with the issue of delay. Any appeal from the orders of 23 February 2016 should have been filed by 22 March 2016. Thus the mother, having filed her Application in an Appeal and Draft Notice of Appeal on 9 May 2016, is some seven weeks out of time. In her affidavit in support of her application the mother said that she made an application for legal aid on 2 March 2016, that she did not have the financial means to appoint a solicitor and receive advice and that she was unaware that the Notice of Appeal had to be filed within 28 days. At the hearing of her application, the mother informed me that the application for legal aid had been refused on 20 May 2016.
This is not a particularly persuasive explanation for the delay. The mother does not say when and how she became aware of the need to file a Notice of Appeal within 28 days of the orders but clearly she did because she filed the present application. This was filed some nine days before legal aid was refused. It is therefore difficult to make any assessment as to whether there was, in fact, an explanation for not filing the Notice of Appeal within time. It is true that the mother was acting for herself without the benefit of legal advice, but the rules apply to her as much as any litigant.

Merits of the appeal

It is necessary to consider the merits of the appeal.
In a slightly different context to the present, Chernov JA said in Sedrak v Carney and Anor [1999] 3 VR 95:
16.In my view, however, as I made clear to the parties at the commencement of the hearing of this application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondents and cause needless expenditure of public funds if the appeal were otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that what must be clearly shown before the applicant is denied the right to have his or her appeal heard, is that the appeal would fail.
This is in accordance with what the High Court said in Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at 521. It must be noted, however, that in each of these cases, an appeal had been filed in time and the applicant was seeking to be excused from the consequences of a procedural delay in preparing the appeal for hearing. In circumstances where the appellant has properly exercised his or her right to appeal, the merits of the appeal are not as significant a consideration as they may be if the appeal has not been filed in time.
It is necessary to refer briefly to the primary judge’s reasons.
The primary judge noted that the mother had had some five months from the date of her Application in a Case first coming before the court on 27 August 2015 until 23 February 2016 to consider her position. His Honour referred to the fact that the father and his solicitors at all times up until the commencement of the hearing proceeded on the basis that the Application in a Case was proceeding. This had caused the father to incur costs unnecessarily and his Honour considered that that was a matter that should be taken into account under s 117(2A) of the Family Law Act 1975 (Cth) (“the Act”).
The primary judge then moved to the financial positions of the parties and noted that the mother “was receiving minimal income from the Government and the father was making a contribution of some $26 per month towards the raising of the child. It is noted that the child is substantially in the care of the mother on a week to week basis”. His Honour noted that the mother was on Centrelink benefits and had the care of other children. His Honour then referred to the father’s financial position, noted that the evidence as to his financial position was sparse and that he worked as a crop manager.
His Honour concluded:
11.In all the circumstances the Court is of the view that there are circumstances that justify the Court in departing from the usual position under section 117 of the Act that each party shall bear his or her own costs. Those circumstances are as previously discussed by the Court in these reasons, namely, the unreasonable conduct of the mother in prosecuting her Application in a Case up until today when she agreed that it should be dismissed. In the view of the Court it would be just to make an order that the mother pay the father’s costs, taking into account her apparent present financial circumstances, in relation to the mother’s Application in a Case filed 29 June 2015, to the extent of 50 per cent, such costs to be agreed or assessed, and that the mother have 6 months in which to pay such costs.
The mother has appeared for herself in bringing the application for an extension of time. In her draft Notice of Appeal the mother proposed the following grounds of appeal:
1.I wish to appeal order number for (4) based on the following:
2.The Application in a Case was initiated based on off the record advice from a solicitor and I the mother was led to believe that this was the process to follow as orders were not signed by both parties as confirmation of orders to proceed. The Application in a Case was withdrawn as I was then advised that pursuing this matter would be against the barrister representing me at the time of the court hearing and to pursue the case the costs would be in excess of $20K for a solicitor to represent me in this matter and therefore I was unable to financially support the case moving forward and the decision to withdraw was agreed.
3.On the last court hearing dated 23 February, 2016 I agreed and signed orders for the father to have unsupervised access to the child. The father has not arrived to collect the child and has attended to date only 5 times out of the 18 scheduled visitations.
4.I currently am unemployed and support four (4) children (3) of which live with me. I am receiving Centrelink Parenting Single Payments of $730.30 per fortnight (as per attached Centrelink Statement), with the father of [the child] contributing between $10.51 to $15.87 per month towards child support over the last three years (as per attached deposit child support transactions). I have no assets and no savings or access to funds to pay for any legal fees incurred by the father.
(As per the original)
Clearly enough neither paragraph two nor three are valid grounds of appeal.
Whilst ground four may also not be seen as a valid ground of appeal, having regard to the mother’s oral submissions, I take it to be a complaint that the primary judge did not give adequate weight to her financial position. Challenges to weight face a high bar: Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513. This is so in relation to a costs order which is a classic example of a discretionary decision.
It is clear, however, that the primary judge did specifically take into account and give significant weight to the mother’s financial position by ordering her to pay only half of the father’s costs.
It is inarguable that the withdrawal of the Application in a Case on the morning of the hearing, particularly given the nature of the orders sought in it, was a matter also properly taken into account.
The mother further relied on what she said was an error in the primary judge’s reasons. The primary judge said that the mother has made no complaint to the Law Society of New South Wales (“the Law Society”), Legal Aid New South Wales or other relevant body about the orders being made without her consent on 20 February 2015. The mother informed me from the bar table that she indeed did make a complaint to the Law Society. Assuming that to be so for the moment and that the primary judge made an error, it was not material to the outcome of the costs application. The primary judge seems to have given that matter little, if any, weight. The primary considerations were the withdrawal of the Application and the financial circumstances of the parties.
The primary judge took into account the relevant matters. The weight to be given to them was primarily a matter for him. It is difficult, therefore, for the mother to argue that the exercise of the discretion miscarried.
The prospects of success on any appeal are low.
There would be a considerable prejudice to the father if an extension of time were granted in that he would have to prepare and attend upon an appeal that significantly lacks merit.

Conclusion

Taking into account the mother’s significant delay in bringing this application, her less than satisfactory explanation for that delay, the limited prospects of success of her appeal and the prejudice to the father, the application for an extension of time will be refused.

Costs

The mother’s application was completely unsuccessful. The father has engaged a solicitor and has therefore incurred some costs although his solicitor has appeared by telephone on both occasions and not lodged any documents. Having regard to that and the mother’s poor financial position there will be no order as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 18 August 2016.

Associate:

Date: 18 August 2016