Tobey and Rezek - [2012] FamCAFC 48

FAMILY COURT OF AUSTRALIA

TOBEY & REZEK

[2012] FamCAFC 48

FAMILY LAW – APPEAL - APPLICATION FOR EXTENSION OF TIME – where the father sought an extension of time to file a notice of appeal – where it was found there was only a short delay by the father and that he had provided an adequate explanation for the delay where it was found that certain grounds of appeal were arguable and might have some prospect of success – where it was found that considerations of emotional stress and financial hardship to the mother and the length of the litigation to date did not outweigh the interests of justice in allowing the appeal to proceed – costs to be paid by the applicant father to the respondent mother

Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Tobey

RESPONDENT:

Ms Rezek

APPEAL NUMBER:

2012

FILE NUMBER:

CAC

740

2008

DATE DELIVERED:

21 March 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn J

HEARING DATE:

19 March 2012

REPRESENTATION

COUNSEL FOR THE RESPONDENT:

Ms Burgess

SOLICITOR FOR THE RESPONDENT:

Legal Aid ACT

INDEPENDENT CHILDRENS LAWYER:

Mrs Evans, Evans Family Lawyers

Orders

The father be granted an extension of time until the expiration of 7 days from the date of these orders to file a notice of appeal against the orders made by the Federal Magistrates Court on 14 December 2011.
Should the father file a notice of appeal within the time provided in Order 1, then he shall file a draft appeal book index within 21 days of the date of filing of the notice of appeal and as soon as practicable after the filing of the draft appeal book index the Appeal Registrar will advise the parties of the future course of the appeal.
That the application for security for costs of the appeal contained in the Response of the mother filed 16 March 2012 be listed for hearing prior to the hearing of the appeal and the Appeal Registrar is to make any necessary directions for the hearing of the application for security, provided that the mother is to be permitted to rely in support of that application on the affidavit of her solicitor filed 16 March 2012.
Within 7 days of the date on which the father files the notice of appeal as provided for in Order 1, he shall advise in writing the Appeal Registrar, the legal representatives of the mother, and the Independent Children’s Lawyer, if he wishes to seek the discharge of the Independent Children’s Lawyer from further appearing on the appeal.
That the father pay the costs of the mother of and incidental to his application for an extension of time to appeal, with such costs to be fixed in the sum of $1,600.
There be liberty to all parties to apply to the Honourable Justice Finn in relation to the implementation of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tobey & Rezek has been approved by the Chief Justice pursuant to s121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

APPEAL NUMBER: EA 14 of 2012
FILE NUMBER: CAC 740 of 2008

Mr Tobey

Applicant

And

Ms Rezek

Respondent

REASONS FOR JUDGMENT

This is an application by Mr Rezek (“the father”) for an order extending the time for him to file a notice of appeal against orders with respect to parenting and property matters made by Neville FM on 14 December 2011.
Those orders were made in proceedings between Mr Tobey and Ms Rezek, who was in a de facto relationship with Mr Tobey and is the mother of their 7 year old child, the subject of the parenting orders now sought to be appealed.
The application to extend time to appeal is opposed by the mother and by the Independent Children’s Lawyer, both of whom also raised certain other potential applications at the hearing of the application to extend time to appeal. I will return to those potential applications in due course.

The application to extend time to appeal

The principles which govern an application to extend time for complying with rules of court, including the rules concerning the time in which an appeal must be filed, were explained by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 and 481 in the following way:
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.
… A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved. In Hughes McInerney J pointed out (at 263) that one object of fixing time under court rules is “to achieve a time table for the conduct of litigation in order to achieve finality of judicial determinations”. When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment”. It would make a mockery of [the relevant rule] if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege.
In the present case the orders which the father seeks to appeal were made on

14 December 2011. The Family Law Rules provide that an appeal should be filed within 28 days of the date of the orders sought to be appealed. According to the calculations of Counsel for the mother the final date on which an appeal could be filed (without leave) in this case was 12 January 2012.
On 19 January 2012 the father (acting on his own behalf) filed an application in which he sought leave to file by 14 March 2012 a notice of appeal against the orders of 14 December 2011. Also on 19 January 2012 he filed an affidavit, together with a draft notice of appeal containing comprehensive and comprehensible grounds.
Of the matters referred to by McHugh J in Gallo v Dawson I will refer first to the length of the delay in this case and the reasons for it, before moving to other matters referred to by his Honour and relied on by the parties in this case.
The father’s affidavit does not explain in clear terms why he did not file his notice of appeal within the prescribed time. However, it emerged from his oral submissions that although he made enquiries of the Court Registry about an appeal on the day on which the orders were made, he decided that he should first obtain the transcript of the trial (which resulted in the orders which he wishes to appeal), and that having obtained the transcript, he then considered it necessary to consult a solicitor about the drafting of the notice of appeal. The father also relies on the fact that from 16 December 2011 to 14 January 2012 he had the child spending Christmas holiday time with him.
While the Rules of the Court concerning time limits for the filing of appeals should certainly be obeyed, I do not consider that a delay of some seven days, particularly if it occurs in the Christmas New Year holiday period, is a significant delay, and indeed Counsel for the mother conceded that the delay was only a short delay.
Although Counsel for the mother and the Independent Children’s Lawyer submitted that the father had not provided adequate reasons for his delay, I consider that his explanation is adequate or at least marginally so, particularly given his self-represented status and the holiday period in question.
I also take into account in this context of delay, that the father’s draft notice of appeal (which he was able to file on 19 January) is certainly an adequate document, which could (if leave was granted) be filed with minimum further delay, although it would be necessary for the father to include a ground or grounds of appeal challenging one of the Federal Magistrate’s orders with respect to property (if the challenge to the order for the payment of money is to be pursued).
In opposing the father’s application, Counsel for the mother placed particular emphasis on the hardship that an appeal would impose on the mother who would have understood that there would be no appeal once the prescribed appeal period had expired. The hardship would arise, it was submitted, from her delicate state of health and her financial situation. In relation to her financial situation, I understood the submission to be that the father had already paid the mother the amount required under the orders and that this fact may jeopardise the mother’s entitlement to legal aid for the appeal. I have some difficulty in seeing why the father’s compliance with the orders should now be held against him in the determination of this application. But even if I accept that to permit the appeal to succeed would impose emotional stress and financial hardship on the mother, these matters must be weighed against other matters to which I will refer.
In addition to the issue of hardship to the mother, her Counsel also relied on what was described as the conduct of the father in the sense that he has to date made many applications at first instance and has already filed two appeals prior to the present application to be permitted to appeal. Counsel placed particular emphasis on the criticisms which were made by Coleman J (who determined the only one of the father’s two previous appeals which proceeded to hearing) of the father’s having appealed an interim order. Counsel’s overall submission in relation to the father’s conduct in pursuing this litigation was that the orders now sought to be appealed gave the father significant time with the child, and that there should now be an end to this litigation which had been in progress for most of the child’s life.
Although she did not undertake the very difficult task of addressing each of the father’s eleven proposed grounds of appeal individually, Counsel for the mother submitted that they would have little chance of success, and that indeed some grounds raised matters already disposed of in the appeal which was dismissed by Coleman J.
In also opposing the grant to the father of an extension of time to appeal, the Independent Children’s Lawyer submitted that there was no merit in the appeal save in relation to a ground (Ground 11) which relates to an order (Order 16) which provides that in the event that the mother is ill and cannot look after the child, then he is to be looked after by his maternal grandmother and also by the grandmother of another child of the mother (who is not a child of the father). The Independent Children’s Lawyer explained that his Honour had not provided reasons for this order in his reasons for judgment which relate to the orders sought to be appealed, and that he had not incorporated into those reasons any of his earlier reasons for judgment which might support the order in question.
In responding to the submissions of Counsel for the mother and the Independent Children’s Lawyer the father explained that his appeal was particularly directed to that order concerning the care of the child if the mother was ill, and also to the orders which curtailed his parental responsibility for the child.
It is always extremely difficult, as was recognised by Counsel for the mother, to determine for the purposes of an application to extend time to appeal, whether the appeal has any prospect of success. This is particularly so in a case such as the present where the grounds of appeal appear on their face to be competent grounds of appeal, and where if they have substance could only be determined after thorough examination of all the relevant evidence.
However, while I cannot predict the success of the appeal, it does seem to me in light of the submissions of the Independent Children’s Lawyer and of the father that the grounds directed to the order concerning the care of the child if the mother is ill, and to the orders in relation to parental responsibility, may well be vulnerable to challenges based on adequacy of reasons having regard to the relevant evidence.
I stress that I do not say that the appeal would succeed on the basis of the matters just referred to. But it certainly cannot be said that the appeal is not arguable or has no prospect of success.
The long history of the litigation between these parties is extremely unfortunate and has no doubt taken a great emotional and financial toll not only on the mother, but also on the father. However, I do not see that this consideration should cause me not to grant the father the extension of time he seeks particularly when it is borne in mind that notwithstanding the long history of the proceedings, this is the first appeal against final orders.
Thus, when the fact of the short delay in the holiday period, the marginally adequate explanation for that delay, the possible prospects of success of some of the complaints raised by the father in this first appeal against final orders, are balanced against the hardship to the mother and the unfortunate length of the litigation to date, I consider that the interests of justice favour the grant of an extension of time to the father to file a notice of appeal. I will give him seven days from the date of this judgment to do so.

Costs of the application to extend time

Counsel for the mother sought an order for costs in the sum of $1,600 in relation to the application to extend time to appeal.
I explained to the father that it is usual for a costs order to be made against a party who seeks an order such as he seeks which is necessary because of a default on his part; in other words, an indulgence is being sought from the Court. The father appeared to understand this, and did not argue against an order for costs in favour of the mother. I will order accordingly.
The Independent Children’s Lawyer did not seek an order for costs.

The mother’s application for security for the costs of the appeal

The mother’s alternative position to the dismissal of the father’s application for an extension of time to appeal, was that such an extension should be conditional on an order being made that the father lodge the sum of $20,000 as security for any costs awarded to the mother in the appeal.
I indicated to Counsel for the mother in that I did not consider it appropriate to make the grant of an extension of time conditional on the payment of security for the costs of the appeal. I took this view because of the different principles which govern the two types of orders.
However, I said that should the extension of time to appeal be granted, then it would not be necessary for the mother to file a new application for security. Rather the application for security in her response document could simply be listed for hearing in due course and the supporting affidavit of her solicitor (affirmed 15 March 2012) relied on.
The mother had also sought that the grant of the extension of time to appeal should be conditional on the payment by the father of certain outstanding costs orders. Again I indicated that I did not think such a course would be appropriate. Rather it is more appropriate that the outstanding costs orders be relied upon in support of the application for security.
I mention here that when towards the conclusion of the hearing before me, the father indicated that he might be prepared to offer some form of security, Counsel for the mother indicated that her real concern was the outstanding costs orders, and that if they could be met, the application for security would not be pursued.
It is likely to be some months before the application for security could be listed for hearing. This period should provide an opportunity for the father to comply with the costs orders, and thus remove the need for a hearing of the security application in advance of the hearing of the appeal.
It would be of assistance to the Court if the legal representatives of the mother could advise the Appeal Registrar immediately should they no longer wish to pursue the security application as until such advice is received arrangements will be in train to list the security application for hearing.

The possible disqualification of the Independent Children’s Lawyer

At the hearing of the father’s application to extend time to appeal the Independent Children’s Lawyer informed me, as she had previously informed the father and Counsel for the mother, that she was concerned that a “conflict” situation had arisen for her because a solicitor who had worked for the firm of solicitors, who had previously acted for the father in these proceedings, had now joined her firm. It appeared that she had not been advised of the attitude of either the mother or the father to her continuing to act on the appeal for which she has been funded by Legal Aid to continue to act.
After this matter was raised by the Independent Children’s Lawyer, Counsel for the mother was able to advise the Court that her client had no difficulty with the Independent Children’s Lawyer continuing to act on the appeal as the appeal process is a different process to a trial, but that she may well take a different attitude if there was to be a new trial following an appeal. In the context of a new trial the Independent Children’s Lawyer would have to gather evidence and would be likely to cross-examine parties.
I understood the father not to be unduly concerned about this matter. But given his self-represented status, I considered it only right to allow him a further seven days after he files his notice of appeal in which to advise the other parties and the Appeal Registry if he wishes to apply to have the Independent Children’s Lawyer disqualified from further acting in the appeal. Should the father indicate that he wishes the Independent Children’s Lawyer to withdraw and if the Independent Children’s Lawyer is unwilling to do so, that issue will have to be determined prior to the hearing of the appeal. It could be heard with the application for security for costs if that application is pursued on behalf of the mother.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn delivered on 21 March 2012.

Associate:

Date: 21 March 2012