WALSH & MAHER
[2019] FamCAFC 162
•25 September 2019
FAMILY COURT OF AUSTRALIA
| WALSH & MAHER | [2019] FamCAFC 162 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR AN EXTENSION OF TIME – Where the Applicant was six weeks late in filing the Notice of Appeal – Where the judgment and orders were delivered by telephone and the final judgment delivered in writing one month later – Where the delay is explained – Where the appeal has merit – Application allowed. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where it was asserted the father was in breach of orders and should not be heard – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent sought an order for costs in accordance with Schedule 3 of the Family Law Rules 2004 (Cth) – Costs order made. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 22.03 , Sch 3 |
| Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; [1996] HCA 25 Dobey & Shey [2019] FamCAFC 68 EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214 Fahmi and Fahmi (1995) FLC 92-637; [1995] FamCA 106 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Hadkinson v Hadkinson [1952] 2 All ER 567 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Mareet & Colbrooke [2018] FamCAFC 254 Pannett & Crain [2018] FamCAFC 99 Watson & Watson (2013) FLC 93-530; [2013] FamCAFC 25 |
| APPELLANT: | Mr Walsh |
| RESPONDENT: | Ms Maher |
| FILE NUMBER: | BRC | 9510 | of | 2012 |
| APPEAL NUMBER: | NOA | 75 | of | 2019 |
| DATE DELIVERED: | 25 September 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 17 September 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 June 2019 |
| LOWER COURT MNC: | [2019] FCCA 1940 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Cameron |
| SOLICITOR FOR THE APPELLANT: | MCH Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Murdoch Lawyers |
Orders
The time in which the applicant may file a Notice of Appeal against the orders of Judge Demak made on 11 June 2019 is extended and the applicant is to file and serve the Notice of Appeal no later than 4 pm on 14 October 2019.
The respondent’s oral application that the Court decline to hear the applicant whilst he remains in contempt of Orders is dismissed.
The applicant pay the respondent’s costs of and incidental to the Application in and Appeal in the sum of $12,536.51, such sum to be paid within twenty-eight (28) days of the date of this order.
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 Walsh & Maher 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: NOA 75 of 2019
File Number: BRC 9510 of 2012
| Mr Walsh |
Appellant
and
| Ms Maher |
Respondent
REASONS FOR JUDGMENT
Mr Walsh (“the father”) wishes to appeal against parenting orders made by Judge Demack on 11 June 2019 in which she made orders that Ms Maher (“the mother”) have sole parental responsibility for the parties two children aged
12 and 13 years (“the children”). Her Honour’s orders provided for the children to spend time with the father both on weekends and on school holidays and the like.
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made.
By Application in an Appeal filed on 20 August 2019 the father seeks an extension of time in which to appeal.
In his affidavit in support of the extension, the father says that the reasons and orders were delivered orally by telephone on 11 June 2019 but says that he believed that he could not lodge an appeal until the settled reasons were delivered. At that time, the father was appearing for himself, and it is clear that his understanding is incorrect and that time began to run from the date on which her Honour made the orders from which he seeks to appeal. Thus the time in which to lodge an appeal from her Honour’s order expired on 9 July 2019.
Her Honour’s settled reasons and orders were provided on 15 July 2019, outside the appeal period.
It seems that when the settled reasons and orders were provided, the father was not in Australia but overseas on a “working holiday”, thus his application for an extension of time was not lodged until 20 August 2019.
The father was not represented at the time of the hearing before the primary judge nor when the reasons were delivered and orders made. He is now legally represented.
The mother opposes a grant of leave.
The relevant principles to be applied in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave. It is also necessary to consider the delay, its magnitude and the reason advanced for the delay.
The exercise of discretion also involves an assessment of prospects of a successful appeal because if the appeal is devoid of merit it would be futile to make the order sought. This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the Court on the application.
Before turning to a consideration of the matters relevant to the exercise of the discretion to grant leave, it is necessary to deal with an application made for the mother in which it was asserted that as the father was in breach of orders he should not be heard on this application.
There is no doubt that the authorities provide that where a party is in contempt of orders in the same suit, the Court may refuse to hear that party.
The primary judge in this matter made orders both in respect of property and in relation to parenting issues. The father only seeks to appeal the parenting orders. The breach of orders on which the mother relied in application of this principle was two-fold. The first related to arrears of child support which had arisen because of a dispute about the enforcement of a binding child support agreement. Her Honour dismissed the father’s arguments in relation to the nature of the agreement and ordered that he pay the arrears and, failing that payment, the amount of the arrears be paid to the mother from the sale of a property owned by the parties. The second order of which the father was said to be in breach was her Honour’s order that the father pay the mother’s costs of and incidental to the issue of child support arrears.
As it turns out, at the time of the hearing of the application for leave, the father had paid the arrears of child support as her Honour had ordered and, through his counsel, undertook to pay the ordered costs.
Despite this counsel for the mother pressed the application that the father’s application not be heard.
Seminal to the operation of the principle is as Denning LJ said in Hadkinson v Hadkinson [1952] 2 All ER 567 at 575-576:[1]
… It is a strong thing for a court to refuse to hear a party to a cause and it is only to be justified by grave considerations of public policy. It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing his compliance.
(Emphasis added)
[1] This principle has been adopted with approval in Fahmi and Fahmi (1995) FLC 92-637 and Watson & Watson
(2013) FLC 93-530.
The impediment to the course of justice said to operate in this case was the need for the mother to expend funds on this application in circumstances where the father had not complied with her Honour’s orders.
Even had the father not paid the funds to which her Honour’s orders related, this application was in my opinion misguided. First, had the father not paid the arrears of child support, her Honour’s orders made provision for them to be paid from the sale of property. Secondly, the father’s compliance with the costs order could have been the subject of an enforcement application.
In neither instance could it properly be argued that his breaches were impediments to the course of justice as contemplated by the principle.
This application will be dismissed.
Delay and the reason for it
The father contends that he did all he could in order to obtain her Honour’s settled reasons as soon as possible. On 28 June 2019 and again on 5 July 2019, the father wrote to the primary judge’s associate requesting a copy of her Honour’s reasons. In his email to her Honour’s chambers he indicated that he wished to appeal. He was told on both occasions that the reasons had not then been settled but that when they were settled they would be sent to him.
The father said that he obtained legal representation early in August of this year. For the mother it was submitted that it could be inferred from what the father said in emails that he had obtained representation earlier than that. I am unpersuaded that the emails do readily support that view and I accept the submission of the father’s counsel.
It was contended for the mother that the father ought to have filed the Notice of Appeal within the limitation period.
True it is that the operation of the Rule contemplates the filing of a Notice of Appeal within 28 days after the making of the order sought to be challenged. However, it visits a significant disadvantage on litigants in deciding whether to bring an appeal if they do not have the settled reasons for decision to seek advice as to the prospects of the proposed appeal. Thus, even if the father had legal advisers, standing in the way of his receiving necessary considered advice on the prospects of appeal was her Honour’s failure to deliver the settled reasons for her decision within the appeal period.
In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195, the Court said at [25]:
…The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period. …
(Emphasis in original)
Both in Mareet & Colbrooke [2018] FamCAFC 254 and in EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214, the Court granted an extension of time in like circumstances (see too Dobey & Shey [2019] FamCAFC 68 and Pannett & Crain [2018] FamCAFC 99).
The father’s delay in not bringing an appeal within the time specified by the Rules is well explained, and, in all of the circumstances, I am satisfied that any delay once the settled reasons had been provided was of insufficient magnitude to stand in the way of a grant of leave, all other things being equal.
Merits of the proposed appeal
The exercise of discretion also involves an assessment of prospects of a successful appeal because if the appeal is devoid of merit it would be futile to make the order sought. This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the Court on the application.
That the assessment of merit is one conducted by reference to the available material, necessarily limits the inquiry and as Kirby J said in Jackamarra v Krakouer (1998) 195 CLR 516 (“Jackamarra v Krakouer”) at 540:
…A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile.
(Footnotes omitted)
As Gummow and Hayne JJ pointed out in Jackamarra v Krakouer, if the futility of an appeal can be demonstrated only by hearing the whole argument, there may be no advantage to bringing it forward to a time when a relatively minor procedural irregularity is sought to be corrected.
It is against this legal framework then that the merits of the proposed appeal should be considered.
Grounds 6 and 7 of the father’s proposed Notice of Appeal concern her Honour’s order that he pay the whole of the mother’s costs of and incidental to the parenting proceedings. While her Honour heard argument about this issue during the hearing, she gives no reasons at all for the order she subsequently made.
Clearly then that at least to that extent, the father’s appeal has merit.
The balance of the grounds as presently crafted contend that her Honour failed to give appropriate weight to the evidence of the children’s views and of the court appointed expert. In the course of argument, counsel for the father indicated that if leave is granted, the grounds of appeal would be amended to include grounds which assert a failure to give adequate reasons.
For the mother it was argued that the grounds (save for those that challenge the costs order) are without merit, relying as they do on a challenge to the exercise of her Honour’s apportionment of weight to the evidence before her. There is no doubt that discretionary challenges are difficult to make good, however, that does not mean that they must per force fail. Having considered her Honour’s reasons and the grounds, I am not prepared to find that the appeal is so lacking in merit that it would be futile to grant leave.
Prejudice
It should not be thought that delay beyond the prescribed time limit is no more than a mere technicality, it is not. In Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at page 8, McHugh J said apropos the limitation periods imposed for the commencement of civil proceedings, which is entirely apposite here:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods.
…
The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”.
…
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. ...
(Footnotes omitted)
Here it was contended that the mother was entitled to finality of litigation especially where, as here, the parties have been at legal loggerheads for years. So too an extension of time brings with it the prospect of further expense and anxiety about the looming appeal.
However, in my view in all of the circumstances, it is appropriate to extend the time in which the father may file a Notice of Appeal against her Honour’s orders.
Costs
Counsel for the mother submitted that in the event that the father’s application was successful, the Court should order the father to pay the mother’s costs of the application.
The first question is whether any costs order should be made given the general principle to which s 117 of the Family Law Act 1975 (Cth) speaks, that is that each party to a cause should be responsible for his or her own costs.
Here, despite the submission of the father’s counsel that the question of costs should be reserved to the appeal, I propose to make a costs order. The hearing was occasioned by the husband’s default and it is he who seeks an indulgence from the Court.
The mother sought an order in the sum of $12,536.51, being a sum reflective of the costs in Schedule 3 referred to in the Family Law Rules 2004 (Cth) and being assessed on a solicitor and client basis. I am satisfied that those costs are reasonable and will make an order in those terms.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 25 September 2019.
Associate:
Date: 25 September 2019
0
9
2