Wadsworth and Anor and Herbst - [2010] FamCAFC 136

FAMILY COURT OF AUSTRALIA

WADSWORTH AND ANOR & HERBST

[2010] FamCAFC 136

FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – applications by the father and the paternal grandmother for extensions of time to file Notices of Appeal – where the father faxed a Notice of Appeal to the Court within time but failed to sign and date the document and it was returned to him – where there are adequate reasons to explain the delays – where it cannot be said there are no prospects of success – where it is necessary to extend the time to enable the Court to do justice between the parties – extensions of time granted to the father and paternal grandmother to file a Notice of Appeal.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038

Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:	Mr Wadsworth
APPLICANT:	Mrs Wadsworth

RESPONDENT:

Ms Herbst

FILE NUMBER:

MLC

493

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

6 July 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

6 July 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 April 2010

LOWER COURT MNC:

[2010] FMCAfam 164

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

That the time for the father and the paternal grandmother to file and serve Notices of Appeal be extended to close of business on Tuesday 27 July 2010.

IT IS NOTED that publication of this judgment under the pseudonym Wadsworth & Wadsworth & Herbst 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 30 of 2010
File Number: MLC 493 of 2007

MR WADSWORTH

Applicant

And

MRS WADSWORTH

Applicant

And

MS HERBST

Respondent

EX TEMPORE REASONS

I have before me two applications. First is an Application in an Appeal filed by the father, on 24 May 2010, seeking an extension of time to file a Notice of Appeal. The second application is also an Application in an Appeal filed by the paternal grandmother, on 29 June 2010. The paternal grandmother was joined as a party to the proceedings that are the subject of the proposed appeal. The proposed appeals are against orders made by Federal Magistrate Bender on 15 April 2010. Those orders were final parenting orders in relation to the children X and Y.
Dealing firstly with the father’s application, he has filed a brief affidavit in support of his application. Unfortunately, the affidavit was inadequate to support the application, but I have been able to tease out further factual material from him, which supports his application. It seems that what happened was that the father, on 13 May 2010, within the 28-day time period that the Rules provide for the filing of a Notice of Appeal, faxed a Notice of Appeal to the Court, but he omitted to sign and date the Notice of Appeal. I have sighted the Notice of Appeal which was faxed. Unfortunately, the father did not annex a copy to his affidavit, but we have been able to track it down in the registry and what the father says is correct, it was faxed on 13 May 2010, but it did not contain a signature or date.
The father has attempted to explain why he did not sign or date it. He says that he swore the document before a barrister, but the difficulty with that is the document was not a sworn document, it just needs to be signed and dated and there is no indication that any barrister or any legal representative was involved. It may be the father is confusing some other document with that. Thus that is a mystery to me, but, in any event, the important issue is that the father did at least make an attempt to file a Notice of Appeal within time. He also forgot, as he says in his affidavit, to send in a waiver of court fees form.
The faxed Notice was returned to him by letter dated 14 May 2010 on the grounds that it was not dated or signed and, also, there was no exemption or waiver of court fees form filed. The father tells me from the bar table, and I accept that this happened, that he received that letter back from the Family Court on about 17 May 2010 and then he immediately set about to prepare and file the application which is now before me, and as I say, that was filed on 24 May 2010.
The father has also filed with his application a draft Notice of Appeal. He tells me he has had legal assistance in preparing that document but unfortunately it seems that he has not received the proper legal advice because the Notice of Appeal is drawn in terms of making an application for leave to appeal, which is not necessary, and inappropriately the Notice of Appeal contains four typewritten pages of what can be termed the detail of the complaint that the father has in relation to the orders made by the Federal Magistrate.
In terms of the grounds of appeal, I pointed out to the father that the first ground is far too general. It does not identify the error alleged to be made by the Federal Magistrate. The other two grounds of appeal, although they are general in their nature, they perhaps, to use the vernacular, squeak by in terms of identifying a basis for a complaint against the orders made by the Federal Magistrate. They raise issues of weight and inappropriate emphasis.
The law in relation to applications for extension of time is well-settled. The High Court case which is often referred to as that of Gallo v Dawson (1990) 93 ALR 479. That was a case dealing with an application to extend time in which to file a Notice of Appeal against certain orders and McHugh J 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.
That decision has been followed by a number of Full Court decisions including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
The relevant factors which need to be addressed are whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application, but the overarching principle is to ensure that injustice is not visited upon primarily the applicant, but also the respondent.
In respect of the application by the father, I am satisfied that there are adequate reasons which explain the delay. As to whether there is a substantial issue to be raised on appeal, that is always a difficult consideration. I have read the judgment of the Federal Magistrate and I must say, prima facie, there would appear to be difficulties in pursuing the grounds of appeal which the applicant has included in the Notice of Appeal, but I am not able to say that there is no prospect of success in terms of the appeal if it is allowed to proceed.
In terms of hardship or injustice to the respondent, the obvious issue is that the respondent who has appeared today, and I thank her for that, has rightly said to me that she thought this matter was over because final orders were made. She emphasised that it has been going on for a long time, and it needs to come to an end. The concern for her is that if the Court allows the appeal to proceed in terms of being at least filed, she will have to deal with it and she needs to be prepared for that.
The nature of the litigation is relevant here. This is an issue about the future of young children. There are significant matters raised in the judgment of the Federal Magistrate, which the father takes issue with in terms of suggesting errors have been made.
There is nothing I wish to say about the conduct of the parties. There is no material that is before me that I need to take into account either way in that regard.
In terms of the consequences for the parties, and particularly the applicant if I refuse this application, that would be the end of this matter from his point of view. There is indeed no appeal possible from an order refusing an extension of time. There is the ability to seek special leave from the High Court, but that is always a difficult option to take. Thus clearly to refuse the application would have significant consequences for the applicant, but as I have said, the overarching principle is whether the granting of the application will enable the court to do justice between the parties and, in my view, that is the case here.
Thus I propose to make an order granting an extension of time for the applicant to file a Notice of Appeal. In relation to the Notice of Appeal as I have indicated, the draft notice is inadequate. Thus the father will need to file a properly drawn notice. He tells me, and this is helpful, that he has arranged to receive some legal assistance as early as this Friday and he anticipates that he will be able to prepare and file an appropriate Notice of Appeal within three weeks.
Coming then to the application filed by the paternal grandmother, there are difficulties associated with this application. There is an affidavit, but unfortunately, as I have taken up with the paternal grandmother, it failed to give me sufficient information to determine the application. In particular, there is no indication as to when the application for Legal Aid was made, and when Legal Aid was refused. There is also no indication as to why it took until 29 June to file the application. Thus, as I indicated during submissions, I had three choices, namely, to dismiss the application, to adjourn it to enable the paternal grandmother to put further information before me or to proceed on the basis of what she has put to me from the bar table.
I have teased out those issues with the paternal grandmother. The respondent mother has indicated her preference would be not to have to come back, if possible. She formally opposed the application as she did with the application of the father, but in relation to this aspect, adjourn or not, the mother has left it to me, but as I say, I glean from her submission that her preference would be not to have to come back. Unusual as it may be, and perhaps unsatisfactory as it may be, but given everybody in this case is acting in person and given that the parties would have to make arrangements to travel to Melbourne to come back on an adjourned hearing date, I am prepared, as indicated earlier, to proceed on the basis of the information put to me from the bar table by the paternal grandmother. It is not entirely clear, because she did not bring any of the documentation with her, but she tells me that, after the orders were made by the Federal Magistrate, there was a couple of weeks at least of discussions with her solicitor and barrister as to whether there were grounds of appeal, and she tells me quite candidly, her barrister did not think so, but her solicitor did and was prepared to move forward with an appeal, but to do so, the paternal grandmother needed Legal Aid and through her solicitor, she put in an application. She cannot tell me precisely the date of that, but she feels that it was before the 28-day period expired. She then received a letter from Legal Aid refusing her application, but she cannot be specific as to when that was received. She is confident, though, in saying to me that it was received prior to the filing of the application of her son on 24 May 2010. She also tells me that, up to that point, all the energies were put into that application rather than her application, but once she received the rejection from Legal Aid, and once her son’s application was properly filed, she says, and I accept, that she then prepared her own application and the supporting document, filing them on 29 June 2010.
Obviously, with that recitation of what the paternal grandmother has put to me from the bar table, there is still some lack of clarity and lack of detail, but in a general sense, I am prepared to accept that as explaining the delay and as providing adequate reasons for the delay.
Now, I am not going to repeat what I said earlier in these reasons about the relevant principles, but applying those principles to the paternal grandmother’s application, as I have already said, I am satisfied that there are adequate reasons which explain the delay.
In terms of whether there is a substantial issue to be raised on appeal, I make the same comments as I did with the father. I cannot say that any appeal would not be successful, but I can say that, prima facie at least, there would appear to be significant obstacles in the way of a successful appeal.
I observe that the paternal grandmother has done the same thing that the father has done in terms of the Notice of Appeal. It is a Notice which seeks leave to appeal, which is unnecessary. There is also, in the body of the notice, three pages of typewritten material, which should not be there, but it has been helpful in that it provides some insight as to the complaints that the paternal grandmother makes about the orders made by the Federal Magistrate.
In terms of hardship or injustice, the same issues arise in this regard as between the paternal grandmother on the one hand and the respondent on the other as I have identified before and I do not need to repeat that.
Likewise, the issue of the consequences for the parties of the grant or refusal of the application and, likewise, with the relevant factors being the nature of the litigation, the conduct of the parties and the history of the proceedings, and in my view, looking at the overarching principle, which I have identified, of doing justice between the parties, I am satisfied that it is appropriate to grant this application to enable the Court to do justice between the parties in the circumstances of this case.

I certify that the preceding 23 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 6 July 2010.

Associate