Walton and Walton & Anor - [2017] FamCAFC 107

FAMILY COURT OF AUSTRALIA

WALTON & WALTON AND ANOR

[2017] FamCAFC 107

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Application for an extension of time to file a Notice of Appeal – Where there is an explanation for the delay in filing – Where the proposed appeal is arguable – Application allowed.

Family Law Act 1975 (Cth) s 60CC

Family Law Rules 2004 (Cth) r 22.03

Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Jackamarra v Krakouer and Anor (1998) 195 CLR 516
Rice & Asplund (1979) FLC 90-725
Sedrak v Carney and Anor [1999] 3 VR 95

APPELLANT:

Mr Walton

RESPONDENT:

Ms Walton

INDEPENDENT CHILDREN’S LAWYER:

Hannaway Lawyers

FILE NUMBER:

NCC

2274

2016

APPEAL NUMBER:

2017

DATE DELIVERED:

15 June 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

15 June 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 April 2017

LOWER COURT MNC:

[2017] FamCA 372

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Graham

SOLICITOR FOR THE APPELLANT:

Tony Cox Lawyers & Conveyancers

THE RESPONDENT:	In person (by telephone)
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Douglas Hannaway solicitor (by telephone)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hannaway Lawyers

Orders

The time for filing the Notice of Appeal from the orders of Cleary J made on 24 April 2017 is extended up to and including 22 June 2017.

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 Walton & Walton 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 50 of 2017
File Number: NCC 2274 of 2016

Mr Walton

Appellant

and

Ms Walton

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 25 May 2017 Mr Walton (“the father”) seeks an extension of time in which to appeal from orders of Cleary J made on 24 April 2017, by which her Honour dismissed an application by the father to reopen parenting proceedings between him and Ms Walton (“the mother”). The father’s lawyers attempted unsuccessfully to file a Notice of Appeal on the last day on which an appeal could be lodged.
On 13 December 2016, consent parenting orders were made on a final basis in the Family Court of Australia. The orders provided for the parties to have shared parental responsibility for the children, B born in 2008 and C born in 2010, except for health and education issues, for which the mother was to have sole parental responsibility. The children were to live with the mother in the home of the maternal grandmother and the mother was enjoined from relocating the children for a period of six months after the making of the orders.
The orders provided for the older child to spend unsupervised time with the father on alternate weekends, for half of each school holiday period and on other specified days. The father was required to spend time with the younger child either in the home of the paternal grandparents or in the presence of one of the paternal grandparents until the child attained the age of eight years.
Importantly, the six month period that the mother was to spend living with the maternal grandmother was conditional on her providing evidence that she had participated in drug and alcohol counselling by a qualified counsellor and was compliant with the treatment prescribed by her general practitioner or counsellor pursuant to her mental health plan. The mother was also required to install a home alcohol monitoring system and to record on that a 0.00 alcohol reading every day for a month, every second day for the next month and every third day for the third month.
On 3 March 2017 the father filed an Initiating Application seeking that the orders of 13 December 2016 be discharged and that the children live with him and spend supervised time with the mother. The father sought fresh parenting orders, asserting that the mother’s abuse of alcohol had rendered the consent orders untenable and arguing that this amounted to a significant change of circumstances, enlivening the principles set out in Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”).
That application arose because of the following events.
The children spent the weekend with the father and the mother was to collect them on 26 February 2017. She did not do so, saying there was an obstruction on the highway. That was a lie. In fact, she was so affected by alcohol that she could not drive and was so frail and anxious that she went to hospital.
The maternal grandmother declined to take the children in the absence of the mother. A maternal aunt said that she and another aunt would care for the children until the mother was well enough to return to the maternal grandmother’s home and resume care of the children.
The father decided not to follow this course and retained care of the children.
The primary judge dismissed the father’s application on 24 April 2017, having found that the mother’s relapses did not constitute a significant change in circumstances because the consent orders had included protective measures in contemplation of the possibility that the mother would relapse.
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.
The mother and the Independent Children’s Lawyer (“ICL”) each oppose the application – in the case of the ICL, “formally”, and in the case of the mother, “strongly”.
The orders the father seeks to appeal were made on 24 April 2017. Accordingly, the father was required to file his Notice of Appeal by 22 May 2017 (see r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”)). He did not do so, despite his lawyers attempting to comply with that rule on the last day for the filing of the Notice of Appeal. For reasons which are unnecessary to canvass in any detail, the lawyers did not do so.
The father filed the instant Application in an Appeal and a Draft Notice of Appeal on 25 May 2017, three days late.
The father points to three reasons for his delay in filing the appeal.
The first is that the father currently resides in Suburb F in Sydney, which is some distance from H Town, where his solicitors are based.
The second is that since the orders of 24 April 2017 were made, the mother has relapsed twice and has been unable to comply with the orders. The father has therefore been required to negotiate with the maternal grandmother in relation to the care of the children.
Finally, the father says that he is currently unemployed and needed time to consider whether he could pursue an appeal in the light of his financial circumstances.
Each of these factors, the father contends, delayed his ability to instruct his lawyers as to whether to file an appeal.
The father does not really explain why he left it until 19 May 2017 to inform his solicitors that he wished to appeal. There is, however, some explanation of the delay. Further, the delay in filing this Notice of Appeal and this application is very short indeed.
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. There is some significance, however, in the fact 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.
The father brings his appeal against the primary judge’s orders on two bases. First, he argues that her Honour erred in finding that the evidence did not disclose a significant change in circumstances which would warrant a reopening of the case in accordance with the principles of Rice & Asplund. Secondly, he contends that the primary judge erred by giving greater weight to the principles in Rice & Asplund than the considerations contained in s 60CC(2)(b) and s 60CC(2)(a) of the Family Law Act 1975 (Cth) in circumstances where the issue of the mother’s abuse of alcohol was undisputed.
As I have indicated, the primary judge found that as the orders specifically required the mother and the children to live with the maternal grandmother, thus imposing a degree of protection for the children and supervision of the mother, the possibility of a relapse was implicit in the orders.
Her Honour took into account the fact that the substantive orders had been made just over three months earlier.
The primary judge was also concerned that the children had “so much disruption in their lives” prior to November 2016 and that further disruption was not warranted. The children had reported to the family consultant that they had very low levels of happiness and security and high levels of fear.
The children had settled well into their school at Town Z and thus if the children were to live with the father they would again have to change schools.
Her Honour noted that the consent orders provided for the younger child to spend time with the father only at the home of the paternal grandparents or in the presence of one of them due to concerns about his drug and alcohol abuse issues and fears of domestic violence.
The issue before her Honour was not all straightforward. The challenge to her Honour’s reasons is to the weight given to various considerations. Such appeals face well-known difficulties (House v The King(1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513).
However, I am not able to say that the appeal is so lacking in merit that it is futile and I proceed on the basis that the appeal is properly arguable.
The mother did not point to any prejudice that flowed from the delay.
Whilst the delay in the father giving instructions to appeal could have been the subject of explanation, I am satisfied in all of the circumstances that the application should be granted.
The time for compliance for filing the Notice of Appeal from the orders of Cleary J made on 24 April 2017 is extended until Thursday 22 June 2017.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 15 June 2017.

Legal Associate:

Date: 15 June 2017