WELTON & WELTON
[2018] FamCAFC 59
•6 April 2018
FAMILY COURT OF AUSTRALIA
| WELTON & WELTON | [2018] FamCAFC 59 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is no adequate explanation for the failure to file within time – Where the proposed appeal is without merit and has no reasonable chance of success – Where there is prejudice to both parties whichever way the application is decided – Where the justice of the case lies in dismissing the application – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules (2004) (Cth) |
| Bennett & Bennett (1991) FLC 92-191 |
| APPLICANT: | Mr Welton |
| RESPONDENT: | Ms Welton |
| FILE NUMBER: | MLC | 10479 | of | 2016 |
| APPEAL NUMBER: | SOA | 10 | of | 2018 |
| DATE DELIVERED: | 6 April 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 27 March 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 3149 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Order
The application in an appeal filed on 15 March 2018 be dismissed.
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 Welton & Welton 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).
|
Appeal Number: SOA 10 of 2018
File Number: MLC 10479 of 2016
| Mr Welton |
Applicant
And
| Ms Welton |
Respondent
REASONS FOR JUDGMENT
Introduction
The application before the court is the application in an appeal filed by Mr Welton (“the father”) on 15 March 2018. That application is supported by an affidavit of the father filed on that same date. Further, and as is required, on 15 March 2018 the father also provided to the court a Draft Notice of Appeal, being the Notice of Appeal that he would proceed on in the event that his application was successful.
Although it is not apparent from that part of the application where the father is meant to set out the orders sought, this is an application for an extension of time to file a Notice of Appeal against orders made by Judge Williams on 15 December 2017. None of the eight paragraphs set out therein in fact seek any orders. They are a combination of assertions, facts and information, and reference to the first instance decision of the primary judge, as follows:
1.The delay was caused by my attempts to try and resolve this situation out of the Federal Court System, as I had no faith that I would receive a fair trial, after receiving the reasons for Judgement [sic] from Judge Jillian Williams.
2.I attempted to get the Human Rights Commission to assist me, I then attempted a Human Rights application through the Federal Court of Australia, various attempts to get the FCC to cancel this case, even contact with various other departments, including the Attorney General’s office. The documents to prove this will be attached in the affidavit for this application.
3.There is an unlawful advantage to the other party because of the unlawful reasons for the Judgement [sic] of this case. Please see WELTON & WELTON [2017] FCCA 3149 = THE ACTUAL TRUTH_doc.
4.The merit of this appeal is to ensure natural justice is the final outcome of this entire case.
5.The response to the wrong information illistrated [sic] in the Judgement [sic] and the reasons made by Judge Jillian Williams, are illistrated [sic] in the following document: WELTON & WELTON [2017] FCCA 3149 = THE ACTUAL TRUTH_doc.
6.The truth cannot be altered, this document proves the Mental Health Discrimination I have stipulated from the beginning (WELTON & WELTON [2017] FCCA 3149 = THE ACTUAL TRUTH_doc).
7.The learned [primary] judge acted upon a wrong principle; the learned [primary] judge took into account irrelevant matters; the learned [primary] judge failed to take into account a material consideration; the learned [primary] judge erred on the facts; The learned [primary] judge’s decision was plainly unreasonable or unjust; the learned [primary] judge was biased; the learned [primary] judge failed to afford a party procedural fairness; The learned [primary] judge provided inadequate reasons.
8.Please see WELTON & WELTON [2017] FCCA 3149 = THE ACTUAL TRUTH_App_Appeal_Affidavit that supports this application.
I should also note that this application is not the first application filed by the father. On 20 February 2018 he filed an application in an appeal where although it was plain that he needed to seek an extension of time to file a Notice of Appeal against the orders made, that was again not what he set out in the relevant section of the application. It is perhaps useful to also set out in full what the father inserted in this application as the orders sought, namely:
1.Unlawful judgement [sic] / The immediate cancelation of everything to do with case WELTON MLC 10479 of 2016.
2. Compensation for damages.
3. Written appoligies [sic] from everyone involved.
4.Please refuse my application so I can submit already completed paperwork to the High Court of Australia, because I have absolutely no faith in the Federal Court System.
Also on 20 February 2018, the father presented the Draft Notice of Appeal on which he sought to proceed if an extension of time was granted, and there was an affidavit filed by the father on 27 February 2018 in support of the application filed on 20 February 2018. However, all that the affidavit did was to annexe two documents, namely what the father described as “The actual truth of case WELTON MLC 10479 of 2016” and a psychiatric report completed by Dr M.
The first document comprised the reasons for judgment of the primary judge, with virtually every paragraph of those reasons annotated with the father’s response. The psychiatric report was a report that was before the primary judge at the trial of the matter.
The Draft Notice of Appeal presented on 20 February 2018 was simply incompetent. In that draft the father sought leave to appeal, and in support of that application he set out almost two pages of narrative seemingly providing his response to the decision of the primary judge, and then, under the heading “Grounds of appeal”, the father inserted the following:
1.Everything that has occurred is unlawful, everything will be cancelled immediately. The above is only an example of this abomination.
That application came before this Court on 9 March 2018, and I informed the father that his application and his supporting documents failed to provide any basis for extending the time to file a Notice of Appeal. Not only did the father fail to address any of the factors relevant to such an application, including for example, providing a reason for his failure to file a Notice of Appeal within time, but the Draft Notice of Appeal failed to set out any competent ground of appeal identifying any appealable error by the primary judge.
In those circumstances I indicated to the father that if he sought to proceed on the application then it would be dismissed, but if he sought an adjournment of the application to either amend his documents or to file fresh documents, then such an application would be considered. The father then made that application, and although it was opposed by Ms Welton (“the mother”), I granted the application and adjourned the matter to a date and time to be fixed. Subsequently that date and time was fixed as 2:15pm on Tuesday 27 March 2018.
As referred to above, on 15 March 2018, the father filed fresh documents, and the application was heard on 27 March 2018.
The mother opposed the father’s application.
Applicable principles
The principles applicable to applications for an extension of time are well settled. For example, in the High Court decision of Gallo v Dawson (1990) 93 ALR 479 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 & 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.
Thus, the fundamental issue is whether an extension of time 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 take into account. For example, whether there are adequate reasons which explain the failure to file the Notice of Appeal within the requisite 28 day period, whether there is a substantial issue to be raised on appeal, or to put it another way, whether the appeal has merit, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the nature of the litigation, the history of the proceedings, the conduct of the parties, and the consequences for the parties of the grant or refusal of the application.
In this case not all of those factors need to be considered. The primary factors are whether there are any adequate reasons to explain the failure to file the Notice of Appeal within time, whether the appeal has merit, and the consequences for the parties of the grant or refusal of the application. It could perhaps also be argued that the nature of the litigation and the conduct of the parties are also relevant. In relation to the nature of the litigation, the issues before the primary judge were both parenting and property settlement. Although the father has indicated in his Draft Notice of Appeal that he would wish to appeal against all orders made by the primary judge, it is readily apparent that the primary concern for the father is with the parenting orders. Those orders provide for the mother to have sole parental responsibility for the two children of the relationship, for those children to live with the mother, for the children to communicate with the father by telephone each Tuesday, and for the children to spend limited supervised time with the father. Thus, in terms of the nature of the litigation, it is relevant to note that that involves parenting issues, and in particular, the need to limit the time that the children spend and communicate with the father. However, that said, although they are significant issues, if it is not apparent that the primary judge has made an appealable error in making those orders, then the fact that the nature of the litigation involves parenting issues, cannot determine the outcome of the application seeking an extension of time.
In relation to the conduct of the parties, although there have been serious concerns in this case as to the conduct of the father, and in particular his incessant emailing of the mother and the court, if he is able to satisfy the requirements of an adequate reason for failing to file a Notice of Appeal within time, and demonstrate that the appeal has merit, then that conduct also cannot be determinative of the outcome of the application before the court.
Accordingly, I will now address what I consider to be the three most important and relevant factors to be taken into account.
Adequate explanation
The requirement under the Family Law Rules (2004) (Cth) (“the Rules”) is that the Notice of Appeal must be filed within 28 days of the orders being made. In this instance the orders were made on 15 December 2017, and the father failed to file a Notice of Appeal within 28 days thereafter. He then filed his initial application in an appeal seeking an extension of time on 20 February 2018.
Although it is somewhat difficult to discern, it seems that the father’s explanation for his failure to file a Notice of Appeal within time is that he was attempting to resolve the matter outside of the Federal Court system, as he describes it, because, and again as he describes it, he has no faith that he would receive a fair trial in that system.
Annexed to the father’s affidavit are documents which indicate that he has made application to the “Human Rights Commission”, he has made application for compensation to the relevant Commonwealth Department for Social Services, he has sent correspondence to the Commonwealth Attorney-General, and he has sent correspondence to the “Mental Health Tribunal”. However, in each of those instances his application and/or complaint, has met with no success.
Pausing there, it is common ground that the father has mental health issues, and to put that into context I set out below extracts from the background facts in the primary judge’s reasons for judgment:
17.The [mother’s] evidence is that the [father] became increasingly abusive towards her, verbally emotionally and psychologically from the end of 2015 and throughout 2016.
18.The [father’s] evidence is that both parties were engaged in arguments during that time and both were responsible for the conflict and friction in the household.
19.In January 2016 the parties separated under the one roof.
20.On 22 April 2016 the [father] left the family home around midnight and did not advise the [mother] of his proposed plans.
21.On 23 April 2016 the [mother] asserts that the [father] sent her text messages from (omitted), threatening to commit suicide.
22.On 24 April 2016 the [father] returned home and attended upon his general practitioner at (omitted) medical clinic. He was diagnosed with severe depression.
23.Between April 2016 and September 2016, there were various incidents and altercations between the parents, some of which occurred in the presence and or hearing of the children.
24.On 18 September 2016 the [mother] left the former family home.
25.On 28 September 2016 the [mother] made an application for an intervention order in the Ringwood Magistrates Court. The [mother] was the affected family member. An intervention order was granted in her favour. However, the children were not included as affected family members.
26.On 4 October 2016 the [father] was served with a copy of the [mother’s] intervention order at the (omitted) police station.
27.On 6 October 2016 the [father] admitted himself to the (omitted) hospital. He was admitted because he had planned to hang himself with a rope in his garage after having an argument with the [mother]. He was discharged on 12 October 2016.
28.On 11 November 2016, during a directions hearing of the [mother’s] intervention order application, the children were added to the intervention order. Despite the intervention order, the [father] sent many emails and text messages to the [mother] in a breach of the intervention order.
29.On 3 February 2017 the [father] again admitted himself to the (omitted) hospital.
30.On 22 February 2017 the [father] admitted himself to the (omitted) hospital. He presented with suicidal ideation and planned to lie on train tracks. He also had intense thoughts to harm his ex-wife, her lawyers and others. He agreed to a voluntary admission.
31.On 8 March 2017 the [father] admitted himself to the (omitted) hospital following a drug overdose.
32.On 9 March 2017 the [father] again admitted himself to the (omitted) hospital.
33.On 24 April 2017 the [father] was charged with stalking and persistent breach of the intervention order. He was convicted and placed on a good behaviour bond. Since the date of his conviction the [father] has not breached the intervention order.
34.On 14 August 2017 the [father] sent a letter from (omitted) psychology, to the [mother’s] solicitor and to the Ringwood Magistrates Court about his mental health status. That letter is annexure 7 to the trial affidavit of the [mother] sworn and [sic] 15 August 2017, and provides as follows:
“Mr Welton currently meets diagnostic criteria for emotionally unstable personality disorder with impulsive and borderline features. Mr Welton also exhibits traits of narcissist personality disorder and symptoms of harmful alcohol use.”
I also note that Dr M was requested by the Independent Children’s Lawyer (“ICL”) to conduct a forensic psychiatric assessment of the father, and not only was Dr M’s subsequent report before the court, but Dr M gave evidence and was cross-examined.
Dr M’s diagnosis of the father was as follows:
192. Dr M’s current diagnosis of the [father] is as follows:
Mixed anxiety disorder with features of social, generalised anxiety and obsessive compulsive disorder.
Borderline personality disorder
In my view, the father has not provided adequate reasons for his failure to file a Notice of Appeal within time. None of the avenues that he explored provide a viable alternative to bringing appeal proceedings, when his intention was and remains, to challenge the orders made by the primary judge and to have them overturned. Further, it is apparent that he was well aware of how he should go about challenging the orders, and he intentionally avoided doing so. The significance of that is that the Rules providing timeframes are there for a reason, namely to provide sufficient time for the relevant act to be done, but to also protect the position of the other party. There is also an element of ensuring that court processes are kept within manageable parameters. Here, her Honour made orders on 15 December 2017, and subject to any appeal being filed within the requisite 28 day period, the mother was entitled to the fruits of her Honour’s judgment, and to arrange her life, and in this instance, the lives of the children, on that basis.
The merits of the appeal
In the Draft Notice of Appeal presented to the court on 15 March 2018, the father once again made an application for leave to appeal, albeit that was unnecessary. This time though, instead of the father including a lengthy narrative setting out the issues that he had with the orders made by the primary judge, he simply set out the following:
1. The learned [primary] judge acted upon a wrong principle;
2. The learned [primary] judge took into account irrelevant matters;
3.The learned [primary] judge failed to take into account a material consideration;
4. The learned [primary] judge erred on the facts;
5.The learned [primary] judge’s decision was plainly unreasonable or unjust;
6. The learned [primary] judge was biased;
7.The learned [primary] judge failed to afford a party procedural fairness;
8. The learned [primary] judge provided inadequate reasons.
Then, under the heading of “Grounds of appeal”, the father was more expansive than in his initial Draft Notice of Appeal, but all that he did was to set out a series of principles from cases such as House v The King (1936) 55 CLR 499, Marvel & Marvel(No. 2) [2010] FamCAFC 101, Storie v Storie (1945) 80 CLR 597, De Winter & De Winter (1979) FLC 90-605, CDJ v VAJ (1998) 197 CLR 172, Gronow v Gronow (1979) 144 CLR 513, Norbis v Norbis (1986) 161 CLR 513, Johnson v Johnson (2000) 201 CLR 488, Kioa v West (1985) 159 CLR 550, and Bennett & Bennett (1991) FLC 92-191. However, what the father failed to do was to identify any error by the primary judge which breached the principles from those cases. In other words, the father simply set out the law that applies in appeals, without relating that law to anything done or not done by the primary judge. Thus, the father has still not set out competent grounds of appeal which would allow this Court to find that there is some merit in his proposed appeal.
For completeness, and because the father was without legal representation, I have carefully read his document headed “The actual truth” and which, to repeat, comprises the reasons for judgment of the primary judge annotated with the father’s response to almost every paragraph of those reasons for judgment. I should add that that document also contains a further narrative, repeating many of the concerns that the father has with the primary judge and her reasons for judgment. However, that document still does not provide a basis for this Court to find that there is any merit in the father’s complaints, sufficient to require appellate intervention.
I also indicate that although the father’s primary concerns relate to the parenting orders, I have carefully read and considered his complaints about the property settlement orders, but again, nothing that the father puts in relation to those orders demonstrates any basis for appellate intervention.
The consequences of granting or refusing the application
As the matter presently stands, all of the orders made by the primary judge are in place, there is no appeal on foot in relation to those orders, the mother is able to proceed on the basis that she has the benefit of all of those orders, and she would not need to do anything further in relation to those orders. However, if the application is granted, then the appeal will be able to proceed and the mother will have to deal with it, and that will inevitably involve time, effort and the expending of resources. It may also place in limbo the orders relating to the children, and the orders for property settlement. Thus, there is clear prejudice to the mother in that event.
On the other hand, if this Court refused the application, there would be undoubted prejudice to the father. There is no appeal from a refusal of such an application, save and except, by way of seeking special leave to appeal to the High Court of Australia. That is understandably a difficult exercise and sometimes is not warranted in the circumstances of the case, and thus for that to be the only avenue for the father to pursue, is a serious prejudice to him.
Pausing there, the father has said on more than one occasion that he wishes to have these proceedings done with in order that he can go to the High Court of Australia. However, as I have explained to the father, the possible application for special leave to appeal to the High Court of Australia that I have referred to, is only in relation to the application for an extension of time. It does not get before the High Court the orders made by the primary judge.
Conclusion
As the authorities recognise, the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, and in determining that, it is necessary to take into account the relevant factors that I have referred to above.
Here, I have found that the father has not provided an adequate explanation for his failure to file a Notice of Appeal within the prescribed time, and that the appeal has no merit. The only factor in his favour is the prejudice to him if the application is refused, but that does not necessarily outweigh the prejudice to the mother if the application is granted.
This is a clear case where the interest of justice requires that the application be refused, and that is the order that I propose.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 6 April 2018.
Associate:
Date: 6 April 2018
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