WATFORD & LAMLEY - [2020] FamCAFC 13

FAMILY COURT OF AUSTRALIA

WATFORD & LAMLEY

[2020] FamCAFC 13

FAMILY LAW – APPEAL – REINSTATE APPEAL DEEMED ABANDONED – Where the applicant has a satisfactory reason for his failure to file his draft appeal index within time – Where none of the grounds of appeal have merit – Where it is beyond doubt that the interests of justice demand that the application for reinstatement be refused – Where despite there being prejudice to the applicant in refusing the application there is no point in allowing the appeal to proceed when it has no merit – Application dismissed.

FAMILY LAW – COSTS – Where neither party sought an order for costs regardless of the result – No order for costs.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 22.13(3), 22.44 and 22.57

Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175
Bemert and Swallow (2010) FLC 93-441
Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Watford

RESPONDENT:

Ms Lamley

INDEPENDENT CHILDREN’S LAWYER:

Mr S Phillips

APPEAL NUMBER:

WEA

2019

FILE NUMBER:

PTW

196

2017

DATE DELIVERED:

24 January 2020

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

4 October 2019

REPRESENTATION

THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Bannerman

SOLICITORS FOR THE RESPONDENT:

Bannerman Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Phillips

SOLICITORS FOR THE RESPONDENT:

S V Phillips & Company

Order

The Application in an Appeal filed by the applicant father on 12 June 2019 be dismissed.
There be no order as to costs.

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 Watford & Lamley 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 PERTH

Appeal Number: WEA 14 of 2019
File Number: PTW 196 of 2017

Mr Watford

Applicant

And

Ms Lamley

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

On 12 June 2019, Mr Watford (“the father”) filed an Application in an Appeal seeking an order reinstating his abandoned appeal, together with an affidavit in support.
On 18 April 2019, the father filed a Notice of Appeal against a number of parenting and property settlement orders made by Magistrate Andrews on 26 March 2019. He was due to file his draft appeal index by 16 May 2019, but he failed to do so. As a result, his appeal was deemed abandoned (r 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”)).
The application is opposed by Ms Lamley (“the mother”), and the Independent Children’s Lawyer (“the ICL”).
In the application the father also sought other orders, namely an “extension of time” to “obtain further evidence to support the appeal”, to “await the outcome for Legal Aid application”, and to adduce further evidence.
I explained to the father that the application to lead further evidence was premature, and could only proceed if his appeal was reinstated. As to obtaining legal aid, the father did not pursue his application in that regard.

The relevant legal principles

Rule 22.44 of the Rules provides for an application to reinstate an appeal taken to be abandoned. However, unlike its predecessor, r 22.57, this rule does not provide any specified criteria that may be taken into account in the exercise of discretion by the court, and that is consistent with the Full Court decision of Bemert and Swallow (2010) FLC 93-441 where their Honours concluded at [154]:
…[i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account. …
That said, the Full Court also noted at [154] that:
…[i]t is important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175].
As to that latter case and, in particular, the issue of case management, I refer to what French CJ said at [30], and I do not need to do more than just refer to that.
In any event, importantly, despite what the Full Court said at [154], it was also identified in Bemert and Swallow that the principles applicable to the determination of an application for an extension of time, as set out, for example, in the oft-quoted extract from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479, apply equally to an application to reinstate an appeal. In Gallo v Dawson McHugh J said this at 480 – 481:
…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. 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. 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. 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. 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…
(Citations omitted)
In summary then, the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to be taken into account. In my view, the three most relevant factors here are, first, whether there are adequate reasons that explain the failure to comply with the relevant timeframe, secondly, the merits of the appeal, and thirdly, the prejudice to the parties depending upon whether the application is granted or dismissed. It could be said that the history of the proceedings is also relevant here, as well as the conduct of the parties and the nature of the litigation, but I propose to confine my remarks to what I see as the three most relevant significant factors.
First, addressing the issue of the reasons for the failure to comply with the relevant timeframe.
The affidavit of the father was not particularly helpful in providing those reasons; he said that he was “financially unable to obtain legal advice”, and he misunderstood the requirements for filing appeal documents. However, at the hearing of his application he explained that because he no longer had access to the computer he used to prepare his Notice of Appeal, nor did he have the assistance provided by his friends at that time, he was a day or two late in completing the draft appeal index. Of course, he was not able to file it then, and he subsequently filed the application to reinstate the appeal as soon as he was able to.
Although lacking in detail, I am prepared to accept that this is what happened, and to find that the father has a satisfactory reason for his failure to file his draft appeal index within time.
Turning to the second factor, namely the merits of the appeal.
In the Notice of Appeal, leave to appeal is sought, but that is unnecessary because the father is entitled to appeal as of right. As for the grounds of appeal, there are four relied upon, namely:
1.The magistrate accepted evidence from the Mother’s counsel given from her (sic) bar table that was not tested.
2. The final orders made were unreasonable in all the circumstances.
3.The Father was not given procedural fairness in relation to evidence presented on behalf of the mother during the trail (sic).
4.False evidence was given to third parties in (sic) which had great influence in amending third party reports.
The first thing to note is that none of these grounds of appeal go to the orders for property settlement that are the subject of the appeal; they all relate to the parenting orders complained of.
The second thing to note is that Ground 4 is incompetent. It does not allege appealable error by the Magistrate. As explained by the father at the hearing of the application, the allegation is that “false evidence” was given to the single expert witness (the third party), and that influenced that witness to amend his report. Thus, this is not a ground of appeal that can succeed.
At this point I explain that the question for this Court is whether it can be demonstrated that there is an arguable case on appeal. Importantly, even the remotest chance of success is enough, and the exercise is somewhat similar to that required to determine an application for summary judgment. To put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, then subject to the result of a consideration of all other relevant factors, such as the reasons for the failure to comply with the prescribed timeframe, the appeal should be allowed to proceed.
Returning then to the other grounds of appeal.
Ground 1 is completely misconceived. As revealed during the hearing the complaint was that the mother’s counsel put matters to the single expert witness which the father says had only just come to light in subpoenaed documents, and the father was not able to look into those matters by way of, for example, issuing his own subpoena. However, the relevant subpoena was returnable two days before the trial, and the father failed to attend that hearing, and did not inspect the documents before trial, and in any event, he conceded that no application was made for an adjournment, and the hearing proceeded. Thus, there is no error here by the Magistrate, and this ground cannot succeed.
Ground 2 also has no merit. As explained by the father during the hearing, he claims that the orders were unreasonable because they were the orders sought by the mother, and the orders he sought were not considered. However, a plain reading of the detailed reasons for judgment of the Magistrate, reveals that her Honour gave due consideration to the orders sought by both parties, and provided adequate reasons for finding that the orders sought by the mother, and supported by the ICL, should be made.
Finally there is Ground 3, and that too has no chance of success. The father’s complaint is that there was evidence presented to the court on the first day of the trial by way of subpoenaed documents, which caused the single expert witness to change his opinion both in his addendum report, and when he gave his evidence later during the trial. The procedural fairness issue is that the father was not told by the Magistrate what he could do about that development.
What in fact happened is explained by her Honour as follows:
Drug screen results
19As part of his case for the trial, [the father] relied on drug screen results obtained by him in June 2017. These results were referred to and annexed to his affidavit filed 10 August 2018. The annexure was not available during trial, as [the father] had not produced the documents referred to as annexures to his affidavit and left before presenting his case.
20The same drug screen results had previously been relied upon by [the father] as part of his evidence in these proceedings, within an application for interim parenting orders relating to the time he was to spend with the children. The results were annexure A to his affidavit sworn 28 August 2017.
21The drug screen results relied on by [the father] came from a hair sample analysis and were negative to any illicit substances, including methamphetamine. The test covered a period of approximately six months prior to the time of collection in late June 2017.
22The hair analysis testing was conducted through a drug testing facility, namely, B Corporation. The hair sample was collected locally through the representative of a company called C Company, forwarded on to a further agency in Queensland, namely D Pty Ltd, and was then forwarded to the US based company B Company, for the analysis to occur. A similar pathway was followed, in reverse, when the results of the test were returned, ending up with [the father].
23[The mother] had questioned the validity of the test results being negative, as she was convinced [the father] was abusing drugs around and leading up to the date of the testing. She subpoenaed D Pty Ltd’s records of the tests, which became available only shortly before trial.
24There was a significant difference between the drug screen results [the father] relied upon and the results produced by D Pty Ltd pursuant to the subpoena.
25D Pty Ltd’s records of the analysis of [the father’s] hair sample indicated a positive and high reading for methamphetamine. The result from the same hair analysis which [the father] referred to in his affidavit and had previously produced in evidence, showed a negative result to methamphetamine.
26[The mother] called Mr E from D Pty Ltd as a witness. Mr E confirmed the difference in the test results as described. He confirmed the results which had been distributed to C Company were as they appeared in D Pty Ltd records, and not the negative test result relied upon by [the father].
27There was a further difference in the two documents, that is the actual test results and those relied upon by [the father], being different addresses for D Pty Ltd. When asked about this difference Mr E indicated the header to the document containing the test results had been changed by D Pty Ltd to reflect their current address. The part of the document containing the actual results had not been altered.
28Mr E also described the layout of the test results relied upon by [the father], where there was a discrete heading for methamphetamine, rather than methamphetamine being a sub heading of amphetamine, as not how the results would normally be set out. He also indicated the results are sent by PDF and could easily be altered.
29I cautioned [the father] about the possible serious consequences of a criminal nature that could flow from Mr E’s evidence. I urged him several times to obtain legal advice. He refused to do so. I provided him with a copy of s 11 of the Evidence Act 1906 (WA).
30The evidence presented through Mr E leads me to the conclusion that, on the balance of probabilities, it is likely [the father] has altered the hair analysis test results from his hair sample collected on 26 June 2017 so as to present to the Court as not using illicit drugs.
31On 25 February 2019, orders were made for the parties to undergo drug screens for the detection of illicit substances, to again occur by way of hair strand analysis. Legal Aid funded this testing.
32[The mother] undertook the drug screen on 5 March 2019, [the father] undertook the drug screen on 15 March 2019, some two and a half weeks after orders were made.
33The results from [the mother’s] drug screen test were available prior to trial and were negative to any illicit substances referred to in the test.
34[The father’s] drug screen results were not available until the third day of trial, the day [the father] did not attend. Pursuant to the orders the results of the hair analysis were to be released to [the father], and he had not authorised any other party to be notified.
35The general manager of the Drug Detection Agency, the agency though which the test was undertaken, was called by the ICL to give evidence of the results and provide the test results. She indicated the test results had been emailed to [the father] early that morning before the commencement time of court. The test results showed a positive result to methamphetamine detected in [the father’s] hair sample.
36[The father] had previously denied using drugs and indicated [the mother’s] “concerns” were completely baseless. [The father] was not available to be cross examined.
37The conclusion I have reached regarding [the father] altering the drug screen results from 2017, and the recent drug screen result indicating a positive result to methamphetamine in [the father’s] hair sample, is that [the father] was using methamphetamine in 2017 and continues to do so.
38I reject [the father’s] evidence where he disputes using methamphetamines. I also question his credibility generally. For this reason where his evidence differed from [the mother’s] evidence, I generally preferred [the mother’s] evidence.
It was this information which caused the single expert witness to change his opinion, and again, no application to adjourn was made by the father.
I then come to the third and final factor, namely the prejudice to the parties depending on whether the appeal is reinstated or not.
If the application is granted, there would clearly be prejudice to the mother in that she would have to deal with the appeal, when currently there is no appeal on foot. There would be resource, time and financial issues that she would have to face in responding to the appeal if reinstated.
On the other hand, if the application is dismissed, the father would suffer prejudice in that he would not be able to pursue this appeal. There is no appeal from a refusal to grant the application. There is the possibility though of an application for special leave to appeal being made to the High Court of Australia, but the obvious question is whether that is warranted in the circumstances.
As the authorities recognise, consideration of the relevant factors informs the court’s determination of the fundamental issue, namely is it in the interests of justice to allow the appeal to proceed? Here, in my view, it is beyond doubt that the interests of justice demand that the application for reinstatement be refused.
Although I have found that there is a satisfactory explanation for the failure to file the draft appeal index within time, I have found that the appeal has no chance of success, and despite there being prejudice to the father if the application is refused, there is absolutely no point in allowing the appeal to proceed when it has no merit.

Costs

As to the question of costs, neither party sought any costs regardless of the result. Accordingly, there will be no order as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 24 January 2020

Associate:

Date: 24 January 2020