YAMADA & CAIN - [2012] FamCAFC 37

FAMILY COURT OF AUSTRALIA

YAMADA & CAIN

[2012] FamCAFC 37

FAMILY COURT – APPEAL – APPLICATION IN AN APPEAL – where an extension of time is sought to file a Notice of Appeal against the orders of Bender FM – where the application is opposed – where the law in relation to such applications is well settled – where the applicant has relied on the advice and instructions of her solicitors – where the explanation provided by the applicant in her affidavit material adequately explains the delay – where it is not apparent that the appeal is hopeless or doomed to fail – where there would be serious consequences for the applicant if the application is not granted – where the interests of justice require that the application is granted – application granted.

FAMILY COURT – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the applicant seeks costs in the sum of $1358 – where the respondent seeks costs in the sum of $500 – where the respondent opposes the application for costs made by the applicant – where the application had to be made in any event – where the respondent could have consented to the application being made instead of forcing it to a hearing – applications for costs dismissed.

Family Law Act 1975 (Cth) ss 94AAA(1), (5), (10), (11), (12), s 117, ss 117(2A)
Family Law Rules 2004 (Cth) r 22.02, 22.03, 22.11, Chapter 22

Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

MS YAMADA

RESPONDENT:

MS CAIN

FILE NUMBER:

MLC

4263

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

22 February 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide by telephone link

JUDGMENT OF:

Strickland J

HEARING DATE:

22 February 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

3 June 2011

LOWER COURT MNC:

[2011] FMCAfam 539

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McConchie

SOLICITOR FOR THE APPLICANT:

Hartleys Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Harvey

SOLICITOR FOR THE RESPONDENT:

Bayani Harvey Lawyers

Orders

The time for the applicant to file and serve a Notice of Appeal against the orders made by Federal Magistrate Bender on 3 June 2011 be extended to the close of business on 21 March 2012.
The oral applications for costs made by the applicant and the respondent be dismissed.

It is noted that publication of this judgment by this Court under the pseudonym Yamada & Cain 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 Number: SA 80 of 2011
File Number: MLC 4263 of 2010

MS YAMADA

Applicant

And

MS CAIN

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

I have before me an application in an appeal filed on 1 December 2011 seeking, in effect, an extension of time to file a Notice of Appeal against orders made by Bender FM on 3 June 2011. The application was initially supported by an affidavit of the applicant also filed on 1 December 2011 and a draft Notice of Appeal which appears to have been filed on that same date as well.
The application first came before me on 17 January 2012. However, it readily became apparent that the affidavit in support of the application was quite inadequate, in that there was insufficient information to allow me to address the relevant factors that are to be considered in determining an application for an extension of time, and in particular the extent of any delay and the reasons for the delay.
As a result, the applicant made an application to adjourn the proceedings to enable a further affidavit to be filed. That application was opposed, but in the ultimate I granted the adjournment, and the adjournment was to today. A further affidavit has been filed, and that is an affidavit of the applicant filed on 17 February 2012. Thus, in support of the application, I now have two affidavits, namely, the initial affidavit and the subsequent affidavit.
The respondent still opposes the application.

Relevant statute law and rules

Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) deals with, inter alia, appeals from the Federal Magistrates Court.
Section 94AAA(1) of the Act provides as follows:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates 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
…
(e) for an extension of time within which to file an application for leave to appeal; 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.

Applicable Principles

The law in relation to applications for extension of time is well settled. In these matters, I often cite the High Court decision of GallovDawson (1990) 93 ALR 479. In particular, I refer to what McHugh J said 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.
That decision has been followed in a number of Full Court cases including 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 which explain the delay, 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, but the overarching principle is to ensure that injustice is not visited upon, primarily the applicant, but also the respondent.

Discussion

As to the relevant factors to be addressed in this case, those that have been identified and in respect of which submissions were made by both counsel are first, whether there are adequate reasons provided by the applicant to explain the applicant’s failure to comply with the requirement that a Notice of Appeal is to be filed within 28 days of the making of the orders. Secondly, whether there is a substantial issue to be raised on appeal, and thirdly, the consequences for the parties of the grant or refusal of the application, and in respect of that factor, that raises the issue of any prejudice to either party depending upon whether the application is granted or refused.
Turning first to the question of whether there is an adequate explanation for the failure to comply with the relevant timeframe. I need to consider both affidavits filed in support of the application to adequately address this issue. By that I mean, and it has been pointed out during submissions, in the initial affidavit between paragraphs 8 and 13 the applicant deposes to what she says occurred between the date that judgment was delivered and obviously the orders were made, and when she first attended upon Legal Aid in Adelaide. For subsequent events I need though to consider the second affidavit of the applicant.
In terms of the initial period of 28 days, what the applicant tells me in her affidavit is that she instructed her solicitors at the time that judgment was delivered and the orders were made that she wished to appeal. She says her solicitor told her that he would make the necessary arrangements for the appeal. She says she did not hear anything for a week or so, she tried to contact her solicitor but was unable to do so, and she says that by the time the solicitor returned her call she was out of time, and I take that to mean the 28 days had expired. She says that her solicitor at that time informed her that he could not assist her any more, and he suggested that she should see a solicitor in Adelaide. Pausing there, as I commented on during submissions, it surprises me that a solicitor would conduct himself in that way, and although I may have concerns about that, I have no other evidence before me to indicate that what the applicant deposes to is inaccurate. Thus, given that is the only evidence before me, I necessarily accept it.
What is put by Mr Harvey for the respondent in relation to that evidence is that it is an inadequate explanation, and there is nothing to explain why, for example, the applicant did not file a Notice of Appeal herself and then subsequently, if it needed to be amended or further documents filed, attend to that at a later date. At least what she could have done was to file a Notice of Appeal within time and then the matter would be on track, and there would be no need for the application that has now been filed and which I am hearing today.
It is apparent to me from the affidavits filed by the applicant that she has religiously followed the instructions of her solicitors. She has relied on them, and she has acted on their advice, and given that, it seems to me that it was not unreasonable once she had given instructions to her solicitor that she wished to appeal to leave it to him to arrange that. She tells me, and I accept as I have said, that she became concerned having not heard from him, and she attempted to contact him, but unfortunately by the time that he returned her call the 28 days had expired. I consider that an adequate explanation for the delay and for not complying with the time period allowed for the filing of the Notice of Appeal.
Thereafter, I turn to the second affidavit of the applicant wherein she sets out all that has happened since the time that she first went to consult a solicitor at Legal Aid in South Australia to the time of the filing of the application for an extension of time.
Mr Harvey has correctly pointed out that that is a lengthy period of time, namely, from early August until early December, but what is apparent from the affidavit is that the applicant has continued to seek the advice of solicitors and to act on that advice. She has been required to complete and file applications for legal aid and to send them back to the appropriate persons, and it seems to me that she has always acted properly in that regard.
As to why it has taken so long, it is understandable given that initially it needed to be sorted out whether the legal aid to be provided for this exercise would come from South Australia or Victoria. The applicant lived and still lives in country South Australia, and she has had to liaise with Legal Aid in Victoria, and in terms of Legal Aid in South Australia, it seems that the solicitor visits only once a week. Thus, although it is a lengthy period of time, to repeat, it seems to me that the explanation provided by the applicant in her affidavit adequately explains any delay in filing the application.
One matter which has concerned me though, is the apparent failure of the applicant, and/or her solicitors, to keep the other side informed of what was happening and it is readily conceded that that did not occur. However, that does not alter my finding in terms of there being an adequate explanation. I make the comment only because it clearly might have assuaged the concern of the respondent and her solicitors as to whether anything was going to be happening in relation to the appeal, given that the first that they knew of the applicant wishing to appeal was when the application for an extension of time was served. But as I say, that does not go to whether there was or was not an adequate explanation for the delay.
Turning then to the next relevant factor identified namely, whether there is a substantial issue to be raised on appeal, or put another way, whether the appeal has any merit.
The applicant’s grounds of appeal as contained in her draft Notice of Appeal are as follows:
1.Her Honour attached inadequate weight to the relationship between [Z] born in 2005 (“the child”) and her siblings.
2.Her Honour attached inadequate weight to the child’s long term needs for familial identity.
3.Her Honour attached excessive weight to the parent’s transient lifestyle.
4.Her Honour failed to consider appropriately the effect of separation of the child from her siblings.
5.Her Honour failed to consider appropriately the effect of separation of the siblings from the child.
6.Her Honour attached inadequate weight to the effect of separation of the child from her biological parents.
7.Inadequate weight placed on the child’s attachment to her mother and her siblings.
8.Her Honour placed excessive weight on the circumstances of the child [K] born in 1998.
The initial point to make is that it is not possible for me to be definitive in assessing the merits of the appeal. I have limited documentation, namely, the reasons for judgment of the Federal Magistrate and the draft Notice of Appeal to which I have just referred. I do not have the full range of documentation that would be before the Full Court hearing the appeal. For example, the Full Court would have the benefit of the transcript of the hearing before the Federal Magistrate as well as all of the documents that were before the Federal Magistrate, and there would be summaries of arguments from the parties. Thus, I am simply not able to assess in any depth the merits of the appeal, and my analysis must necessarily be limited by the documentation that I do have, together with the oral submissions made today.
In these circumstances the question for me is whether there is an arguable case on appeal. Indeed, where it appears that there is even the remotest chance of success, then that is enough. In this regard this exercise is somewhat similar to the exercise required in determining an application for summary judgment, and to put the proposition another way, 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.
As is obvious, and as has been confirmed during submissions, each of the grounds of appeal raises a weight challenge, and it is notorious that weight challenges are difficult to pursue. Whereas in this case there is a broad discretion reposed in the Federal Magistrate, it is necessary to establish that in exercising her discretion the Federal Magistrate was plainly wrong in that she took into account irrelevant considerations or failed to take into account relevant considerations, for example.
This was a difficult case, and the Federal Magistrate in the opening paragraph of her reasons for judgment said this:
This very challenging matter relates to the living arrangements for [Z], born in 2005 (“[Z]”)..
The dispute is as to where this young child should live, and the parties were the child’s mother, who was supported by the child’s father, although he was not a party to the proceedings, and the respondent was the paternal great aunt.
This was a finely-balanced case, and as such, although weight challenges may have a limited chance of success, as was conceded by Mr Harvey for the respondent, a possibility of success cannot be excluded given the nature of the matters that her Honour had to determine. I agree with that concession, and for my part, that is all that is required to satisfy this aspect of the application. In other words, and to refer to what I said earlier, it is not apparent that the proposed appeal is hopeless or doomed to fail.
Turning to the third factor, the consequences of the granting or refusal of the application. If the application is granted, a Notice of Appeal will be able to be filed, and the appeal will be able to proceed, and the respondent will need to then deal with it. She will need to spend time and presumably money in responding appropriately to the appeal. Thus, there is an obvious prejudice to the respondent given that without an extension of time being granted, there is, in fact, no appeal, and the respondent has to date at least been able to proceed on that basis.
If the application is refused, then the applicant will not be able to file a Notice of 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 appeal to the High Court of Australia however that is a difficult exercise and may not be warranted in this case. In any event, this is a serious consequence for the applicant if her application is refused.
I note from the applicant’s second affidavit that there may be changed circumstances which would allow her to bring a further application at first instance. She says in her affidavit that her lawyers are in the process of liaising with Victoria Legal Aid with respect to whether she is able to issue proceedings due to new facts and circumstances. Now, the importance of that is in relation to any prejudice that the applicant might suffer by her application being refused. In other words, although she would not be able to pursue an appeal, it may be that she can pursue a fresh application at first instance. However, as was pointed out by her counsel no decision has yet been made as to whether she is able to pursue further proceedings, and it would be unreasonable and unfair to make any assumptions about that. I agree with that submission, and although it has some relevance to the issue of prejudice, in my view, it does not alter what I have already said about that, namely, to dismiss the application would visit serious consequences upon the applicant.

As the authorities recognise, the Court’s 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 time, and an adequate explanation for the delay in filing the application for an extension of time. I have also found that there is an arguable case on appeal, and I have further found that there would be serious consequences for the applicant if the extension of time application is not granted.
Thus the interests of justice require that the application be granted and I propose to grant the application.

Costs

I now have applications for costs by both parties.
Firstly, the applicant seeks an order for costs, and Mr McConchie has been perfectly candid in saying that he is doing so because his client is on legal aid. But there is a reason why costs might be ordered in his client’s favour, and that is that the application has been successful.
That application for costs is opposed, and as Mr Harvey has put it, the application had to be made anyway because of the failure by the applicant to comply with the time frames in the Rules. Further there is nothing that his client has done to require that application to be made, or to exacerbate the proceedings save and except, of course, as Mr McConchie has said, the respondent could have consented to the application and thus avoided the need for the hearing.
This application for costs, as is the application made by the respondent, is governed by s 117 of the Act, and in considering an application for costs I am obliged to address a number of factors as set out in ss 117(2A), and one of those factors is the financial circumstances of the parties. In that regard, I am told that the applicant is working part-time and she is on legal aid. I also note from the reasons for judgment that she has the care of a number of children, and it is put that her financial circumstances are poor.
In terms of the respondent’s financial circumstances, she is apparently receiving a Centrelink pension. She has not qualified for legal aid, though, and is funding these proceedings privately, and she has, of course, the care of the child the subject of these proceedings currently, as well as the care of another child. Thus again, and equally, Mr Harvey has put to me that his client’s financial circumstances are poor.
Pausing there, Mr McConchie has indicated that the amount of costs he seeks on behalf of his client is $1358.
Turning to the application for costs of the respondent, she seeks the sum of $500. The submissions in support of that costs order are similar to the submissions in opposing the applicant’s application for costs, namely, the application had to be made anyway, that there was nothing done by the respondent to cause that or to exacerbate that position, and, as a result, the respondent has been obliged to incur costs in responding to that application.
Mr McConchie though has rightly submitted that the respondent could have avoided those costs by consenting to the application.
In the words of s 117(2) of the Act, dealing first with the application for costs of the applicant, I do not consider that there are circumstances here that justify an order for costs being made. As has been said, the application needed to be made anyway. Applications such as these necessarily seek an indulgence from the Court in circumstances where the Rules have not been complied with, and that position applies despite the fact that I am satisfied as to the explanation for not complying with the Rules and the further delay in filing the application. None of that, of course, would have been necessary if the timeframe had been complied with. Thus, I do not consider that there is any basis for costs to be awarded to the applicant.
Turning to the application by the respondent, equally, in my view, I do not consider that there are circumstances here that justify an order for costs being made. The primary consideration for me is that the respondent had it within her power to consent to the application, and given the factual material that has been presented and upon which I have made my determination, it seems to me that the application should, in fact, have been consented to rather than being forced to a hearing.
For those reasons, I propose to dismiss both applications for costs.

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

22 February 2012.

Associate:

Date: 13 March 2012