Family Court of Australia

Rendall & Rendall	[2012] FamCAFC 66	

FAMILY LAW ─ APPEAL ─ Application for Notice of Appeal to be reinstated ─ Where the appeal books were deficient and unable to be accepted, the practical effect of that being that the Notice of Appeal was deemed, under the rules, to be discontinued ─ Discussion of High Court authorities on the exercise of discretion to reinstate an appeal and the balance between the right of the citizen to exercise his or her rights to challenge decisions by way of appeal on the one hand, and on the other hand the entitlement of a successful respondent to finality ─ Where the Notice of Appeal was not considered to be demonstrably hopeless or doomed to fail ─ Self-executing order made whereby the application to reinstate the Notice of Appeal is dismissed unless stated conditions are complied with.	

Family Law Act 1975 (Cth)	

Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251	

Appellant:	Mr RENDALL	

Respondent:	Ms RENDALL	

Independent children’s lawyer:	CATHLEEN CORRIDON	

File Number:	MLM	12129		of	2007	

Appeal Number:	SA	42		of	2011	

Date Delivered:	18 May 2012	

Place Delivered:	Melbourne	

Place Heard:	Melbourne	

Judgment of:	Coleman, Ainslie-Wallace & Kent JJ	

Hearing date:	18 May 2012	

Lower court jurisdiction:	Family Court of Australia	

lower court judgment date:	2 June 2011	

LOWER COURT MNC:	[2011] FamCA 413	

REPRESENTATION
COUNSEL FOR THE Appellant:	Mr Baker	

SOLICITOR FOR THE Appellant:	Cash and Stavroulakis Lawyers	

COUNSEL FOR THE RESPONDENT:	Self represented	

SOLICITOR FOR THE RESPONDENT:	Self represented	

SOLICITOR FOR THE ICL:	ICL not participating in the appeal	

Orders
(1)	That the application to reinstate the appeal filed 27 March 2012 stands DISMISSED UNLESS within twenty eight (28) days of this date the appellant father fully complies with the directions made by the Appeals Registrar on 15 August 2011 as amplified in the letter sent by the Appeals Registrar to the appellant father on 20 December 2011 in the event of which the appellant father’s notice of appeal filed 30 June 2011 be reinstated.
(2)	That the costs of the respondent mother of the appellant father’s application to reinstate his notice of appeal are reserved to the Full Court hearing the appeal in the event of the appeal being reinstated.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rendall & Rendall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE Family Court of Australia at MELBOURNE	

Appeal Number: SA 42 of 2011

File Number: MLM 12129 of 2007

Mr RENDALL	
Appellant

And

Ms RENDALL	
Respondent

EX TEMPORE
REASONS FOR JUDGMENT
COLEMAN J
1.	This is an application filed 27 March 2012 by Mr Rendall (“the appellant”), seeking to reinstate a Notice of Appeal filed by him on 30 June 2011, challenging parenting orders made by Cronin J on 2 June 2011 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) after a trial of parenting proceedings between the appellant and Ms Rendall (“the respondent”). The appellant and the respondent are the natural parents of the children the subject of the parenting orders made by Cronin J on 2 June 2011.
2.	On 15 August 2011, the Appeals Registrar made directions with respect to the appellant’s appeal. For present purposes, the next date of relevance is 16 December 2011, that being the date by which the appellant was to have filed his appeal books, pursuant to the August 2011 directions. Whilst the appellant sought to file appeal books on or shortly before 16 December 2011, the due date for doing so, for reasons which were outlined by the Appeals Registrar in a letter to the appellant, dated 20 December 2011, the appeal books were deficient and unable to be accepted, the practical effect of that being that the Notice of Appeal was deemed, under the rules, to be discontinued as and from 16 December 2011.
3.	On 27 March, the appellant filed the application which is before the Court today. He supported that application with an affidavit, in which, broadly speaking, the appellant sought to explain why he had failed to comply with the directions of 15 August 2011. On 10 May 2012, the respondent, who has become unrepresented and has represented herself before the Court this morning, filed a response seeking the dismissal of the appellant’s reinstatement application, and an order for costs of that application.
4.	In her affidavit in support of her resistance to the reinstatement application, the respondent articulated a number of matters which, with respect to her, having regard to the authorities, were in some instances, directly relevant, in others, whilst not directly relevant, of some relevance. In her affidavit in opposition, the respondent took issue with the appellant in terms of his allegations that he had finally, and after paying substantial sums, secured a full copy of the transcript of the trial before Cronin J, the absence of which can be regarded as the major defect in the appeal books which the appellant sought to file on or about 16 December 2011.
5.	Counsel for the appellant, on instructions, provided what he said was a receipt for the balance of the transcript of the trial, and told the Court that he had seen the “substantial transcript” in addition to that to which the receipt assertedly referred. Ultimately, whether the appellant has or has not now secured a full copy of the transcript does not assume pivotal significance, for reasons which will become apparent. In the course of her affidavit, the respondent raised a number of issues which could, broadly speaking, be regarded as challenging the bona fides of the appellant.
6.	As the Court observed to the respondent during the course of her submissions, but for the fact that the appellant appears to have paid a very substantial sum on the instructions of his counsel, the sum approaching $10,000, the Court would have had real reservations as to the bona fides of the appellant. For my part, I would not dismiss his application on the basis of a demonstrated lack of bona fides. I would put it no higher than that. 
7.	In her affidavit in opposition, the respondent raised a number of matters under the heading “Father’s Abuse of the Legal System”. Whilst it is understandable, in logic, that the respondent would agitate those matters, I perceive that the focus of inquiry for the present purposes is the appellant’s explanation of his delay within the appeal process. The ambit of that delay I have earlier identified. 
8.	Under the heading “The Father May be at Risk of Jail Sentence”, the respondent raised the prospect that if the appeal were reinstated, the father may not be at large when it is heard. For my part, I simply say if that were to happen, that would be the father’s problem. The Court hears litigants prosecute appeals from penitentiaries from time to time, and if the present appellant were incarcerated when his appeal, if reinstated, were heard, that would no doubt be the situation.
9.	The final matter agitated by the respondent in her affidavit “Emotional and Financial Distress Caused by Ongoing Appeal Process” resonates with the authorities in relation to this topic. In short, almost 12 months after the respondent secured an outcome at trial with which she is satisfied she is still in the position where that outcome is uncertain insofar as a challenge to it has not been determined. The respondent is entitled to finality.
10.	As suggested to the respondent during the course of her submissions, the authorities reveal that an application of this kind, unless it be dismissed on either of the two grounds to which reference will shortly be made, necessarily becomes a discretionary balance between, on the one hand, the right of the citizen to exercise his or her rights to challenge decisions by way of appeal, and on the other hand the entitlement of a successful respondent to finality.
11.	If the order of the Court is to be that the application to reinstate is not dismissed, for my part, I would be anxious that the order be expressed on the basis that the application is dismissed unless the appellant complies with directions rather than in any more benign form, or in any form which potentially placed the respondent in the position where she potentially had to engage with reinstatement issues in the future.
12.	The authorities make clear that there are three areas of potential relevance in relation to the fate of this application. The first I perceive for present purposes to be the merits of the appeal. In his Notice of Appeal, the appellant articulates some 45 grounds. For my part, having read the trial judge’s reasons for judgment and read the grounds of appeal, the prospect of success with respect to any of those grounds is not readily apparent. 
13.	As suggested to the respondent, there is a presumption that the decision of the trial judge is correct. The hurdles to success with an appeal of this kind are well-known, and little short of monumental. I say that particularly given the trial judge’s reasons, and the extent to which his Honour’s reasons for judgment turn upon what in the appellate lexicon is generally described as “the trial judge’s advantage”. I am also conscious of decisions of the High Court, commencing with House v The King (1936) 55 CLR 499, and proceeding consistently thereafter to the present day. And in the context of parenting proceedings, to decisions of the High Court such as Gronow v Gronow (1979) 144 CLR 513, and in particular, to the judgment of Stephens J.
14.	For my part, at its best, I would find that the Notice of Appeal is not demonstrably hopeless or necessarily doomed to fail. On my review of the material before the Court, that puts the Notice of Appeal at its highest. On that basis, I would not dismiss the application for demonstrable absence of merit. 
15.	The second matter for consideration then becomes the delay and the explanation for it. Delay is a relative concept. The delay in this case was relatively minor. There is an explanation for it. I accept that, for reasons asserted in the respondent’s affidavit, the explanation for delay may not be as adequate as the appellant would have it.
16.	I simply record that the explanation is not manifestly inadequate, either in terms of time or the proffered explanation for it. I would not dismiss the application on the basis of inadequacy of the explanation for delay, or the extent of such delay. It then becomes necessary to balance, on the one hand, the entitlement of the appellant to have his day in court, as it is generally described, as against the entitlement of the respondent to finality, or as McHugh J said in Gallo v Dawson (1990) 93 ALR 479, quoting earlier authority:
… [her] “vested right to retain the judgment” …
17.	Not surprisingly, this issue has received consideration at the highest level. In Gallo v Dawson (supra), McHugh J, dealing with an application to extend time to file an appeal, considered the operation of the rules, and said in the course of his judgment that the discretion could only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. His Honour, at page 480, further said that:
… 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 …
18.	His Honour further said, as noted earlier, that the likelihood or otherwise of success is a matter of relevance, as is the entitlement of the successful respondent to retain the benefit of the judgment under challenge.
19.	For my part, the focal part of McHugh J’s judgment in Gallo v Dawson (supra) is his Honour’s reference to whether the rules will work an injustice if they are applied. Probably not a lot turns on it, but there is a material distinction between Gallo v Dawson (supra) and the present case in that it is not in doubt that in this case the appellant did file his Notice of Appeal within time. He failed thereafter to comply with the rules, but, on any view of it, the father did make a serious and substantial attempt to do so. As noted in the course of discussion with the respondent, to refuse this application is to potentially leave the appellant with only one avenue of testing the correctness of the trial judge’s decision. That is by way of application to the High Court for special leave.
20.	Whether that application would succeed is not for me to dare to predict, but it is clear that to refuse the appellant an opportunity to have his day in court would have serious repercussions for him. Superficially, the repercussions of refusing to reinstate the appeal or provide the opportunity for it to be reinstated may appear simple. If the application is dismissed, superficially, it would appear that the matter would be at an end. For the reasons just indicated, and particularly, if the matters agitated by the respondent in her affidavit in opposition to this application are considered, there is a real likelihood that the matter would not be at an end for some time into the future. The probabilities are that the appellant would, indeed, seek recourse to the High Court by way of special leave application.
21.	Whether that application succeeded or not is probably not in point for present purposes, the point is that, either way, there is a significant likelihood that for the respondent, this matter will not end, whether the opportunity for the appeal to be reinstated and determined is granted or refused. 
22.	Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251, albeit in the context of an application for summary dismissal, reminded courts such as this intermediate Appeal Court of a number of overarching principles which I believe are relevant for present purposes. His Honour, at page 256, reiterated that:
It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, …
23.	His Honour then said that is why, under the High Court rules, with which his Honour was concerned:
… or in the inherent jurisdiction of the court, [summary dismissal] is rarely and sparingly provided. [Footnote omitted]
24.	I appreciate that this is not a summary dismissal application, but given that this Court is not in a position to nor required to determine the merits of the appeal that is in essence the substance of this application, if not its form. Kirby J proceeded to say, and this harks back to the first topic which I have sought to address, that:
To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious. [Footnotes omitted]
25.	I reiterate what I observed earlier, that, for my part, at its highest, the Notice of Appeal is not demonstrably hopeless or doomed to fail. The probabilities are that it will, having regard to the grounds of appeal, the trial judge’s reasons, and the legal principles which govern the appeal, but, for my part, I would not go so far as to say that it is frivolous or vexatious or demonstrably hopeless. In Lindon v Commonwealth of Australia (No 2) (supra) Kirby J reiterated that:
An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. [Footnote omitted]
26.	On balance, and the balance is, in my view, barely tipped in favour of the appellant, I would afford him the opportunity to have his appeal reinstated and those would be my reasons for doing so.

AINSLIE-WALLACE J

27.	I agree with the orders proposed by his Honour, Coleman J, and the reasons supporting those proposed orders, and I have nothing further to add.

KENT J

28.	I agree with the orders proposed by Coleman J and respectfully agree with his Honour’s reasons.

COLEMAN J

29.	Having stated the conditions, the application is dismissed unless within 28 days the appellant complies with each of those conditions, in which event the appeal stands reinstated.
I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace & Kent JJ) delivered on 18 May 2012.

Associate: 

Date: 21.05.2012