Vakros and Letsos
[2011] FamCAFC 246
•21 December 2011
FAMILY COURT OF AUSTRALIA
| VAKROS & LETSOS | [2011] FamCAFC 246 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where the Court did not extend time and then make directions – Where the directions made are the precursor to the time being extended |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Chapter 22 Rule 22.22(2) |
| Gallo v Dawson (1990) 93 ALR 479 Lindon v The Commonwealth of Australia (No. 2) (1996) 136 ALR 251 |
| APPELLANT: | Ms Vakros |
| RESPONDENT: | Mr Letsos |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Weate & Associates |
| FILE NUMBER: | SYC | 2710 | of | 2007 |
| APPEAL NUMBERS: | EA | 135 | of | 2011 |
| EA | 136 | of | 2011 |
| DATE DELIVERED: | 21 December 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 21 December 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATES: | 26 September 2011 and 18 November 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1383 [2011] FMCAfam 1395 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Battley |
| SOLICITOR FOR THE APPELLANT: | Lees & Givney |
| COUNSEL FOR THE RESPONDENT: | Self represented litigant |
| SOLICITOR FOR THE RESPONDENT: | Self represented litigant |
| COUNSEL FOR THE ICL: | N/A |
| SOLICITOR FOR THE ICL: | Jennifer Weate & Associates |
Orders
EA 135 of 2011
That the hearing of EA 135 of 2011 be consolidated with EA 136 of 2011.
That the appeal books in EA 135 of 2011 be filed and served in accordance with the directions made in EA 136 of 2011.
That the appeal be listed for hearing by the Full Court on 2 February 2012.
That the respondent’s costs be reserved to the Full Court.
EA 136 of 2011
PROVIDED THAT by 4 pm on 20 January 2012 the solicitors for the appellant file in the Sydney Registry of the Court four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve two (2) copies of the appeal books on the solicitors for the respondent, together with a copy of the certificate, the time within which to lodge an appeal against orders of FM Kemp made on 26 September 2011 be extended to 4pm on 28 November 2011.
That, provided that order 1 hereof is complied with, the Draft Notice of Appeal annexed to the application of the appellant filed on 28 November 2011 be deemed to have been filed in accordance with the leave granted by Order 1 hereof.
PROVIDED THAT the appellant complies with the preceding orders, the appeal is to be listed for hearing before a bench of three Judges on 2 February 2012 AND the respondent is to file his Outline of Argument by 2 pm on Wednesday 1 February 2012.
That the appellant be responsible for the preparation of the appeal books.
That the appeal books for the appeal are to comprise each of the following documents arranged in the following order: OR That the appeal books be prepared in accordance with the Draft Appeal Index.
· Any Amended Notice of Appeal;
· Orders of the Federal Magistrate dated 26.9.11;
· Reasons for judgment of the Federal Magistrate;
· Transcript of the proceedings relevant to the appeal;
· Application and response and any relevant affidavit material;
· Exhibits tendered before the Federal Magistrate; and
· Summary of Argument
That the costs of and incidental to these proceedings be reserved to the Full Court.
That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
That each party have liberty to apply for any further directions to the Honourable Justice Coleman (or if not reasonably available to another member of the Appeal Division) upon four (4) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vakros & Letsos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 135 and 136 of 2011
File Number: SYC 2710 of 2007
| Ms Vakros |
Appellant
And
| Mr Letsos |
Respondent
And
| Independent Children’s Lawyers |
EX TEMPORE
REASONS FOR JUDGMENT
introduction
On 26 September 2011 Federal Magistrate Kemp made orders after hearing proceedings involving the paternity of the child, X, who was born in January 2007. The present applicant is the mother of the child (“the applicant”). The present respondent was found by the learned Federal Magistrate to be the father of the child (“the respondent”). The learned Federal Magistrate produced comprehensive reasons for his judgment. They have been settled by his Honour, and refer to the history of the proceedings with respect to paternity in the Federal Magistrates Court.
The applicant seeks to challenge his Honour’s decision on a number of bases which are indicated in a draft Notice of Appeal, the relevant provisions of which, for present purposes, are proposed grounds 2, 3 and 4. Albeit cryptic, the proposed grounds of appeal raise challenges to the procedural fairness of the hearing before the learned Federal Magistrate, and to the inferences drawn by his Honour.
As explained to the respondent, who quite properly in the circumstances, has resisted this application, intermediate appeal courts in this country, following the traditions of the English legal system which we have inherited, are generally reluctant to deprive a citizen of the opportunity to test a decision of a subordinate court by appealing against such a decision. The authorities in this regard are not in doubt. In this context the judgments of McHugh J in Gallo v Dawson (1990) 93 ALR 479 and of Kirby J in Lindon v The Commonwealth of Australia (No. 2) (1996) 136 ALR 251 are generally relied upon.
There are essentially three matters of relevance to an application such as the present. The first is whether or not the proposed appeal has any potential merit. That in practice has been interpreted generally to mean that a proposed appeal need display or exhibit little more than the absence of a complete lack of the prospect of success, or as Kirby J expressed it in Lindon (supra), that the proposed appeal, or proceeding as it was in Lindon (supra), is not doomed to fail. It will be readily apparent that the threshold is thus not particularly high.
As the Court has endeavoured to explain to the respondent, the test does not involve this Court, on a preliminary application, in effect second guessing what would happen on appeal, or endeavouring to explore the possible merits of the proposed appeal with a view to reaching some tentative conclusion. It is fairly obvious that were either of these scenarios applicable, there would ultimately be little need for an appeal to be heard by three judges, which would be argued much more extensively than an application of this kind. As suggested to the respondent, it is difficult in a case such as this to conclude that the proposed appeal is doomed to fail, and the Court does not consider that the appeal is doomed to fail. That is not to say, and it ought not be thought by anybody that the Court is saying, that the appeal appears to have merit.
There is a presumption that the decision of the learned Federal Magistrate was correct in law. That presumption is not lightly rebutted. The bases upon which it might be are not in doubt, and create substantial hurdles to success on the part of an appellant such as the present applicant seeks to become. Influential in the Court’s thinking with respect to these challenges are the realities that the orders of the learned Federal Magistrate, whilst strictly inter partes, go further in that they determine the status of a child.
The finding of paternity is something which affects or would affect the child throughout her life, and takes the matter beyond the ambit of the proceedings being strictly inter partes. The present applicant was unrepresented before the learned Federal Magistrate, as indeed was the present respondent. What, if anything, turns on that could only be assessed by reference to the transcript of the proceedings. The Court is not persuaded that the proposed appeal is doomed to fail. It might, if agitated fully, be found to have merit. It might on the other hand be found to be utterly unmeritorious, but neither of those conclusions is one which the Court could properly reach today, or indeed should try to.
The second matter of relevance is the adequacy of the applicant’s explanation for the failure to appeal within time. With respect to the applicant, her explanation is tissue thin. As suggested to the respondent, were these proceedings in relation to financial matters, the absence of anything resembling an adequate explanation for the failure to appeal within time may well result in an extension of time being refused. As is not in doubt, and as was suggested to the respondent, the first matter, that is the possibility of merit in the appeal, and the third matter to which reference will shortly be made, namely the prejudice to the respondent, in this case, and in most, overshadow the significance of the explanation for delay.
It might be noted that whilst the explanation for delay is inadequate, the delay itself, whatever may have happened at first instance in relation to conduct of the proceedings and delays and the like, being a delay of one month in seeking to appeal is not so great or so excessive as to change the Court’s view that the focus is really on the possibility of the appeal having substance, the importance of the subject matter, being the status of the child, and the prejudice to the respondent.
The prejudice to the respondent is obvious. The respondent has the benefit of a judgment. There is a presumption that the judgment is correct in law. The applicant, having failed to appeal within time, the respondent was entitled to assume as and from about 26 September 2011, that the fruits of success before the learned Federal Magistrate were his to be enjoyed and were not being challenged. One month later that state of mind was challenged. The prejudice to the respondent however, is perhaps not as great as at first appears, for a number of reasons which the Court has raised with the respondent for his comments. The first is that as is not in doubt, if an extension of time is not granted, the only avenue the applicant has is by way of application for special leave to appeal to the High Court.
The authorities, to which reference has earlier been made, suggest that if such an application became necessary, the present respondent would have to be somewhat apprehensive that the High Court might not affirm this Court’s decision. Either way he would have to wait some months to know, and if, as may well happen, the High Court concluded that this Court has erroneously refused to extend time and remitted the appeal for hearing before the Full Court, in reality the present respondent would probably, by the time the Full Court then heard the remitted appeal, have lost a year. That is a real consideration in terms of prejudice to the respondent, so too is when the appeal would be likely to be heard if time were extended.
As the respondent correctly suggested to the Court, in the normal course, if time were extended to file this appeal, it would be likely to be heard well into the second half of 2012. As the record would confirm, the Court raised with the respondent the reality that this appeal could be heard on 2 February 2012. Lest there be any concern by anyone that in some underhand way that arises, I place on the record that the Appeals Registrar informed me earlier this week, (on Tuesday 20 December 2011), in response to my inquiry as to when this appeal could be heard if time was extended, that it could be heard on 2 February 2012.
I raised that query with the Appeals Registrar as I was concerned that the appeal raised issues with respect to the status of a child, but that if the appeal was allowed to be instituted, in fairness to the respondent it ought to be heard at the earliest possible opportunity. That is how the Court was able to say earlier that the appeal could be heard on 2 February 2012. The matter came to me in my capacity as the Senior Appeals Judge for this state.
The prejudice to the respondent on balance ought not, in the Court’s view, disincline the exercise of discretion to extend the time to appeal, but it should be on conditions, and the conditions will, by the Court’s orders, require strict compliance, failing which the extension of time will be revoked. I am not extending time and then making directions, the directions are the precursor to the time being extended.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 21 December 2011.
Associate:
Date: 30.01.2012
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