WATLEYS & SYDER
[2013] FamCAFC 171
•21 October 2013
FAMILY COURT OF AUSTRALIA
| WATLEYS & SYDER | [2013] FamCAFC 171 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME - where the father seeks an extension of time to file an appeal against the orders of Federal Magistrate Kelly (as she then was) made 25 March 2013 – where there is an adequate explanation for the failure by the father to file a Notice of Appeal within time – where the proposed appeal has no chance of success – where in the interests of justice the appeal should be dismissed – application dismissed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the father seeks to appeal an order made by Judge Kelly on 7 June 2013 – where at the directions hearing the father no longer sought to pursue the appeal and asked that it be dismissed – appeal dismissed. |
| Family Law Act 1975 (Cth) – s 70NEC, s 94AAA Family Law Rules 2004 (Cth) – Rules 22.02, 22.03 & 22.11 |
Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392
| APPLICANT/APPELLANT: | Mr Watleys |
| RESPONDENT: | Ms Syder |
| FILE NUMBER: | ADC | 1489 | of | 2011 |
| APPEAL NUMBERS: | SOA | 28 & 34 | of | 2013 |
| DATE DELIVERED: | 21 October 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide via telephone link |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 21 October 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 7 June 2013 |
| LOWER COURT MNC: | [2013] FCCA 766 [2013] FCCA 767 |
REPRESENTATION
| THE APPLICANT | In person |
| THE RESPONDENT: | NA |
Orders
The application in an appeal filed by the father on 16 May 2013 (appeal number SOA 28 of 2013) be dismissed.
The Notice of Appeal filed by the father on 19 June 2013 (appeal number SOA 34 of 2013) be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Watleys & Syder has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Numbers: SOA 28 & 34 of 2013
File Number: ADC 1489 of 2011
| Mr Watleys |
Applicant/Appellant
And
| Ms Syder |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
I have before me an application in an appeal filed by the applicant father on
16 May 2013 seeking an extension of time to file and serve a Notice of Appeal against orders made by Federal Magistrate Kelly (as she then was) on
25 March 2013. That application is supported by an affidavit of the father also filed on 16 May 2013. I note that a draft Notice of Appeal, which is the Notice of Appeal that the father would wish to pursue in the event that he is granted an extension of time, is annexed to that affidavit.
This is the third time this application has been before me. It has been before me on 23 August 2013, on 9 September 2013, and now today. I note that on none of those occasions has the respondent mother appeared. On 23 August 2013 one reason for adjourning the matter to 9 September 2013, was to enable the mother to appear, and I made an order to that effect. However, as I have just recorded, the mother failed to appear on 9 September 2013, and she has failed to appear today. I am aware that she has appeared, and continues to appear, before Judge Kelly (as she now is) in the ongoing proceedings in which parenting orders are sought.
Although I do not know the mother’s position in relation to this application I still must proceed on the basis that the father has to satisfy me that an extension of time should be granted.
Relevant statute law and rules
Section 94AAA of the Act deals with, inter alia, appeals from the Federal Circuit Court (as it now is).
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Circuit Court exercising original jurisdiction under this Act; …
Section 94AAA(5) provides:
(5) An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court
Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made.
Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
The Applicable Principles
The law in relation to applications for extensions of time to appeal is well settled. In the High Court decision of Gallo v Dawson (1990) 93 ALR 479 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: 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.
That decision has been has been followed in a number of Full Court cases including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what those cases tell me, and in particular Gallo v Dawson, is that there are a number of relevant factors which need to be addressed, such as whether there are adequate reasons to explain the failure to file a Notice of Appeal within time, 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. It is not in all cases that the full range of factors are relevant, and I will identify in a moment those that are relevant to this application. However, the court must not forget that the overarching principle is to ensure that injustice is not visited upon, primarily the applicant, but also the respondent.
Discussion
In this case it seems to me that the relevant factors are whether there has been an adequate explanation for the failure to file the Notice of Appeal within the time provided by the Rules, the merits of the proposed appeal, and the consequences of the granting or the refusal of the application.
Factors such as the history of the proceedings, the nature of the litigation and the conduct of the parties I do not consider to be so relevant in this case, and indeed neither in the affidavit of the father, nor in any submissions that he has made, has he raised either of those factors.
Turning then to those factors I consider relevant.
First, the adequacy of the reasons for failing to file the Notice of Appeal within the time prescribed, namely within 28 days after the orders were made. Simply put the father says that he was unaware of to which court he should appeal against the orders made by the Federal Magistrate. On 12 April 2013, he sent letters to the Chief Justice of the Supreme Court of Western Australia and the Chief Justice of the Supreme Court of South Australia, complaining about the orders made by the Federal Magistrate, and providing some brief history of the matter. Importantly, in each letter he indicated that he was seeking the setting aside of the orders made by the Federal Magistrate in order to uphold existing court orders. The reason the letter was sent to the Chief Justice of the Supreme Court of Western Australia is that there had been orders made by the Family Court of Western Australia, and in particular there were orders made on
4 January 2011 by Chief Judge Thackray, whereby his Honour ordered that, having found that the mother had contravened without reasonable excuse an order made by the Family Court of Western Australia on 16 September 2010, the mother enter into a bond, that bond being in the sum of $2,000 and to be operative for a period of two years. That bond also required the mother to be of good behaviour, evidenced by compliance with the terms of parenting orders made by the Family Court of Western Australia.
As I will explain in a moment that bond is highly relevant to the proposed appeal that the father wishes to pursue.
In any event, because that order was made by Chief Judge Thackray in the Family Court of Western Australia the father thought that he was able to complain, and in effect, appeal the orders made by the Federal Magistrate to that court. It is less clear why he sent the letter to the Supreme Court of South Australia. There is nothing specifically about that in his affidavit, nor in his oral submissions, but I perceive that he did so because the Federal Magistrate was sitting in the Federal Magistrates Court in Adelaide, and the father thought it may be that the Supreme Court of South Australia had jurisdiction to hear an appeal in those circumstances.
What then transpired was that the Chief Justice of the Supreme Court of Western Australia responded by letter to the father on 16 April 2013, explaining that the Supreme Court of Western Australia did not have jurisdiction in the matter, and also explaining that it was not open to the father to make a complaint about Federal Magistrate Kelly because she was not a judicial officer of Western Australia, but was a Federal judicial officer. On the same date a letter was sent by the Chief Justice of the Supreme Court of South Australia to the father, and in that letter the Chief Justice indicated that his court had no jurisdiction in Family Court matters, and it would be inappropriate to make any comment.
I note that both the father’s letters to the respective Supreme Courts and the responses from the respective Supreme Court Chief Justices, were within the 28 day period provided by the Rules. Thus, even as at 16 April 2013 the father still had time to file a Notice of Appeal in accordance with the Rules of Court. What he tells me though in his affidavit is that he telephoned the Federal Magistrates Court, asked about how to file an appeal and was advised “to file a Notice of Appeal (22.02) which would cover both an application for extension of time and appeal”. The father then says that based on that advice he prepared an application and forwarded it to the Regional Appeals Registrar.
In paragraph [5] of his affidavit the father says he then received a letter on
9 May 2013, dated 2 May 2013, from the Regional Appeals Registrar stating that what he had attempted to file was inappropriate and providing a precedent of an extension of time application. As a result, on 16 May 2013 the father filed the appropriate documents namely, an application for an extension of time and a supporting affidavit.
On the basis of that evidence I am satisfied that there has been an adequate explanation of the failure by the father to file a Notice of Appeal within the timeframe provided by the relevant Rules of Court namely, Rule 22.03.
I now turn to the merits of the appeal.
The orders of 25 March 2013 that the father identifies in his draft Notice of Appeal as the orders he wishes to appeal against, are orders 8 and 9. Order 8 provides that “[t]he Court finds the mother has breached the good behaviour bond entered into by her on 18 July 2012”. Order 9 provides “[b]y way of penalty and estreatment of the bond the mother is fined the sum of $500.00, to be paid in full on or before 31 October 2013.”
To put those two orders into context. Apart from children’s issues the Federal Magistrate had an application alleging contravention before her. The father was alleging that the mother had contravened specific paragraphs of orders pronounced by the Family Court of Western Australia on 6 January 2011, as subsequently amended by the Federal Magistrates Court on 18 July 2012.
As I indicated previously, on 4 January 2011 Chief Judge Thackray had ordered that the mother enter into a bond in the sum of $2,000, such bond to extend for a period of two years, and a condition of that bond being in effect that the mother comply with all parenting orders made by the Family Court of Western Australia. Clearly the orders made on 6 January 2011 were orders that the mother would need to comply with under that condition of the bond.
The matter was transferred to the Federal Magistrates Court in South Australia and came before Federal Magistrate Kelly on 18 July 2012. On that date her Honour had before her an application in relation to parenting issues and an application alleging contravention by the mother of the orders made by the Family Court of Western Australia on 6 January 2011. Her Honour varied those orders, and in relation to the contravention application filed by the father found that the mother had contravened the orders made on 6 January 2011. Her Honour ordered the mother enter into a further bond pursuant to the provisions of s 70NEC of the Family Law Act 1975 (Cth) (“the Act”), and that bond was also in the amount of $2,000, and it was to continue in full force and effect for a period of 12 months. The condition of the bond was that the mother be of good behaviour during the time that that bond was in existence and comply with all orders of the court.
On 25 March 2013 as I have indicated, and I repeat, there were parenting issues before her Honour and also an application alleging contravention by the mother of the orders made on 6 January 2011, as amended by her Honour on 18 July 2012. Her Honour found that the mother had contravened the relevant orders without reasonable excuse. With order 8 her Honour found that the mother had breached the good behaviour bond entered into by her on 18 July 2012, and in order 9 provided for penalty and estreatment of the bond in the sum of $500.
Turning then to the grounds of appeal set out in the draft Notice of Appeal. I ignore Ground 1. Ground 1 for some reason relates to the extension of time which is the subject of the application before me today and I put that Ground aside. Grounds 2, 3 and 4 read as follows:
2.Federal Magistrate Kelly (Federal Magistrates Court – Adelaide) had no jurisdiction to set aside and or discretion in the proceedings in relation [sic] Family Court of Western Australia Court Orders made 4th January 2011.
3.Federal Magistrate Kelly (Federal Magistrates Court – Adelaide) failed to uphold and administer the Court Orders of the Family Court of Western Australia in the proceedings ADC 1489/2011.
4.Federal Magistrate Kelly (Federal Magistrates Court – Adelaide) failed to consider the Court Orders of the Family Court of Western Australia 4th January 2011 in the proceedings ADC 1489/2011.
I propose to also ignore Ground 5 as that Ground is simply a repeat of Ground 3.
The father has amplified those proposed grounds of appeal in his affidavit and in his oral submissions to me. It seems what he is complaining about is that the Federal Magistrate, he says, should have found that the mother breached the bond that she entered into on 4 January 2011 in Western Australia, that bond was in the sum of $2,000 and the Federal Magistrate should have estreated the bond and required the mother to pay $2,000. Thus it can be seen how Grounds 2, 3 and 4 fit into that complaint.
I have of course the reasons for judgment of the Federal Magistrate and it is apparent that this issue was put to her Honour by the father. In her reasons for judgment her Honour set out what the father was asking her to do, and as I have said, it was to estreat the bond and require the sum specified of $2,000 be paid. However, her Honour indicated that she would not call in the bond for the full amount, namely $2,000, but call it in to a lesser extent namely, $500. The father though queried her Honour’s jurisdiction “to estreat a portion of a bond imposed by another court.” Her Honour responded to this as follows in paragraph [40] of her reasons:
It is a perfectly reasonable point, and I do not pretend to having a detailed knowledge on this issue or the extent to which I have any flexibility in that regard with respect to an order from another Court. Rather than take any chance I will vary the order and estreat a portion of the bond imposed by me on the last occasion, rather than the bond imposed by the FCWA.
Thus, her Honour found that the mother had contravened the orders made on
6 January 2011 as varied on 18 July 2012. I pause here to indicate that the alleged contraventions were all subsequent to the orders made by the Federal Magistrate on 18 July 2012. Then instead of estreating the bond imposed in Western Australia, her Honour estreated the bond she imposed on 18 July 2012, and found that she had jurisdiction to do that.
That then is the complaint that the father makes and the basis of his appeal. He says that the Federal Magistrate had no jurisdiction to deal with the bond in Western Australia, that she failed to uphold and administer the orders (i.e. the bond) made on 4 January 2011, and that she failed to consider that bond.
In assessing the merits of the proposed appeal, I of course do not have the advantage of sitting here as an Appeal Court considering the appeal with all the documents that would be filed in that appeal, and having the benefit of all arguments that may be made. However, I consider that I have sufficient information and detail from the documents that are before me, and the documents to which I have referred, to realistically address whether there is an arguable case on appeal.
This exercise is somewhat similar to that required in determining an application for summary judgment. It is sometimes said that unless it is apparent that the appeal is hopeless or doomed to fail then, subject to where the justice of the case lies, the appeal should be allowed to proceed. I prefer to frame the question in terms of, is there an arguable case on appeal. In my view there is not. I consider that her Honour was quite correct in finding that she had the power to do what she did. It was her bond, it was a bond imposed in the Federal Magistrates Court, and her Honour had the ability to estreat only a portion of that bond.
Her Honour was also fully aware of the orders made on 4 January 2011 in the Family Court of Western Australia. Her Honour took those orders into account and considered them.
In my view the only relevant grounds of appeal namely, Grounds 2, 3 and 4, have no merit.
I turn to the final relevant factor and that is the consequences of the granting or refusal of the application.
If the application is granted then there would be an extension of time to file the Notice of Appeal. That Notice of Appeal would be filed, the appeal would proceed in the usual way, and ultimately there would be a hearing before the Full Court of that appeal. If that is what occurs then clearly there is prejudice to the mother because currently there is no appeal before the court. The mother has therefore to date been able to ignore any question of an appeal, and she has presumably proceeded on that basis. If the appeal is allowed to be filed the mother would need to spend time, and presumably money, and/or obtain legal aid in responding to that appeal. To repeat, there is obvious prejudice to the mother in granting this application.
If the application is refused then of course there is no prejudice to the mother, but the father will not be able to pursue this appeal, and significantly there is no appeal from a refusal to grant an application such as this. There is of course the ability to apply for special leave to the High Court of Australia, but that is a difficult exercise and may not be warranted in this case. In any event, that is a serious consequence for the father if his application is refused.
Conclusion
As the authorities recognise, a consideration of the relevant factors here informs the court in determining the fundamental issue, namely, where the justice of the case lies. I have found that there is an adequate explanation for the failure to comply with the Rules and file a Notice of Appeal within the time permitted. However, I have also found that the proposed appeal has no merit. I have found that there will be serious consequences for the father if the appeal is not permitted to proceed and an extension of time granted. Equally if an extension of time was granted there would be serious prejudice to the mother. In my view, particularly given my findings in relation to the prospects of success of the proposed appeal, in the interests of justice, the application should be dismissed.
Having dealt with the application in an appeal for an extension of time in appeal number SOA 28 of 2013, I moved to conduct a directions hearing in appeal number SOA 34 of 2013, namely the appeal against orders made by Judge Kelly on 7 June 2013.
I took the father through his Notice of Appeal and identified concerns I had about the appropriateness of the grounds of appeal and the orders sought. I then proceeded to take the father through his draft appeal index, and I was taking him to task about the relevance of all of the documents there. At that point he indicated that he wished to discontinue the appeal because it was too hard and he did not want to waste any more time.
In those circumstances I asked the father whether he wished me to dismiss the appeal and he said he did. Thus, that is what I propose to do.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
21 October 2013.
Associate:
Date: 25 October 2013
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