Family Court of Australia

Delamarre & Asprey	[2015] FamCAFC 159	

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant failed to file and serve the appeal books – Where the respondent opposes reinstatement – Where the applicant failed to adequately explain the delay – Where the appeal is of a small compass and doomed to fail – Where reinstatement of the appeal would prejudice the respondent – Application dismissed – Costs order made.	

Family Law Rules 2004 (Cth):  r 22.21	

Gallo v Dawson (1990) 93 ALR 479
Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88	

APPLICANT:	Mr Delamarre	

Respondent:	Ms Asprey	

File Number:	SYC	4348		of	2011	

Appeal Number:	EA	149		of	2014	

DATE DELIVERED:	17 August 2015	

Place Delivered:	Sydney	

Place Heard:	Sydney	

Judgment of:	Ryan J	

Hearing date:	12 August 2015	

Lower court jurisdiction:	Family Court of Australia	

lower court judgment date:	3 October 2014	

LOWER COURT MNC:	[2014] FamCA 15	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Hodgson	

SOLICITOR FOR THE APPLICANT:	Central Coast Family Law	

COUNSEL FOR THE RESPONDENT:	Mr Todd	

SOLICITOR FOR THE RESPONDENT:	Jo-Anna F S Moy	

Orders
(1)	The Application in an Appeal filed 20 July 2015 be dismissed.
(2)	The father pay the mother’s costs of the application in the amount of $2,500 within twenty eight (28) days.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Delamarre & Asprey 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 Sydney	

Appeal Number: EA 149 of 2014
File Number: SYC 4348 of 2011

Mr Delamarre	
Applicant

And

Ms Asprey	
Respondent

REASONS FOR JUDGMENT
1.	This is an application by Mr Delamarre (“the father”) filed on 20 July 2015 to reinstate his Notice of Appeal filed on 31 October 2014.  The appeal, which is against parenting orders made by Loughnan J on 3 October 2014, was deemed abandoned because the father failed to file and serve the appeal books.  By order dated 10 December 2014 this was to be done on or before 4 February 2015.  As a consequence and by virtue of r 22.21 of the Family Law Rules 2004 (Cth) (“the rules”), the appeal was deemed abandoned.
2.	In the event the appeal is reinstated, the father seeks to vary Orders 4(b)(ii) and 7 of the orders made by the primary judge.  Order 4(b)(ii) concerns the children’s living arrangements during the Christmas school holidays until the parties’ son, C, commences Year 2.  He is four years of age and it is common ground that the order will apply to three Christmas school holidays.  Order 4(b)(ii) is set out below:
Until [C] commences Year 2, for two periods of five days in the Christmas school holidays, unless the parties otherwise agree that is to be from 12.00 pm on 2 January to 12.00 pm on 7 January and from 12.00 pm on 12 January to 12.00 pm on 17 January.
3.	On appeal, the father would seek an order that until C commences Year 2, the children spend time with him for half the Christmas school holidays in alternating periods of five days, to commence with the first five days in even numbered years and the second five days in odd numbered years.
4.	Order 7 concerns telephone contact between the children and the parties.  Order 7 is set out below:
Each of the parents shall facilitate the children telephoning the other parent during periods when they are away from the other parent for more than one day, between 6.00 pm and 6.30 pm every second day on the landline of the other parent, with such calls to be of no longer than 10 minutes duration.  For the purposes of those telephone calls the children are to be afforded privacy and the telephones are not to be on loudspeaker. 
5.	On appeal the father would seek to vary that order to facilitate the children being able to take calls on a mobile telephone.
6.	So as to put Order 4(b)(ii) in context, it needs to be understood that Order 4(c)(i) provides that the children spend time with the father from 2.00 pm Christmas Eve to 2.00 pm Christmas Day in years ending with an odd number and from 2.00 pm Christmas Day to 2.00 pm Boxing Day in years ending with an even number.
7.	Otherwise, the orders provide that Ms Asprey (“the mother”) have sole parental responsibility for the parties’ children, B who was born in 2007 and C who was born in 2010.  During school term, the children are to spend time with the father each alternate weekend and each alternate Wednesday.  Because of the difference in the children’s ages, B presently spends slightly longer weekends with the father than her brother.  However, from when C starts school both children will be with the father from after school Thursday until before school Monday each alternate weekend.  Until C commences Year 2, during the term 1, 2 and 3 school holidays the children’s time alternates in five day blocks and from when he commences Year 2, all school holidays will be divided into two equal block periods.
8.	It is the father’s contention that in relation to Order 4(b)(ii), his Honour failed to provide adequate reasons for not implementing the recommendation made by the family consultant that those holidays should be shared between the parents upon the basis that until C turned five or six years of age, the children should not spend more than 4-5 nights away “from either parent” and that the order is plainly unjust.  
9.	In relation to Order 7, it is asserted his Honour failed to provide reasons for not providing that telephone contact could be on a mobile telephone.
10.	The appeal is unarguably of small compass.
Applicable Law
11.	The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479.  Although that case dealt with an extension of time to appeal, the principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88).  At page 480, the High Court said:
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. 
12.	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.
13.	The decision of the High Court in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516, in particular, Gummow and Hayne JJ at [33] is also relevant:
…[W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
14.	As will shortly be explained, all other things are not equal and the application for reinstatement will be dismissed.
Delay
15.	The first question to be determined is whether the father has provided an adequate explanation for his failure to comply with the timeframe for filing appeal books.  His explanation is contained in his affidavit filed on 20 July 2015.  According to him, approximately one week prior to Christmas 2014 his then solicitors asked him to place $30,000 into their trust account, failing which no further work would be done in relation to his appeal.  The father was unable to pay the amount and at some stage he terminated his instructions with the solicitors.  The solicitors filed a Notice of Ceasing to Act on 27 January 2015.
16.	At some time prior to 29 April 2015, the father retained his current solicitors.  However, a dispute arose between him and his former solicitors as a consequence of which the former solicitors refused to release his file.  It would seem that dispute was resolved and on 11 May 2015, the father’s solicitors wrote to the solicitor for the mother and sought her agreement to reinstate the appeal.  The following day the solicitor for the mother advised the mother did not consent.  Nine weeks later that father filed this application for reinstatement.
17.	Although it would have been more difficult for the father to prepare the appeal books without access to his file than if he had it, it was open to him to obtain copies of the required documents from the court file.  He provides no explanation for his failure to do so.  Nor is any explanation given for why it took him nine weeks from when he knew the mother did not agree to reinstatement to file this application.  In my view, the father’s approach to the prosecution of his appeal has been quite cavalier.  Not only has he failed to provide an adequate explanation for the delay, his tardiness makes it difficult to be confident that he would file the appeal books within his nominated 28 day time frame.
The merits of the appeal
18.	As was mentioned earlier, and emphasised during submissions, the primary challenge made in relation to Order 4(b)(ii) is his Honour’s failure to provide adequate reasons for not implementing the recommendation made by the family consultant concerning Christmas school holidays.  Central to that challenge is the notion that where the family consultant referred to those holidays being shared, she meant shared equally.  Why that gloss would be permissibly applied was not explained.
19.	It was then argued that the order does not give effect to the evidence of the family consultant that the children should not spend more than 4-5 nights away from either parent.  However, when counsel for the father analysed the effect of Order 4(b)(ii) he overlooked the order which provides for time at Christmas.  When Orders 4(b)(ii) and 4(c)(i) are considered in combination, at worst, there may be two periods where the 4-5 nights gap is exceeded by one or two days.  When it is remembered that the family consultant’s evidence was to the effect that these arrangements should be in place until C turned five or six and the order which his Honour made would probably continue until C turned seven, it is apparent that the number of affected days is extremely small.  Notwithstanding counsel for the father’s valiant attempts he was unable to explain how this could be plainly unjust. 
20.	In relation to the telephone order, at [161] of the primary judge’s reasons for judgment, he specifically addressed the importance of the children’s privacy when speaking to their parents and that B should not take responsibility for telephone calls with the father.  It would seem that Order 7 is designed to give effect to those concerns.  True it is that a different judge may have taken another approach.  However, in an appeal concerned with an error of law, that does not establish error in the relevant sense.
21.	This is one of those rare cases where it is clear that the appeal would fail.
Prejudice
22.	It is accepted that the effect of refusing the father’s application is that he will not be able to pursue his appeal.   However given that this means that the father would be denied the opportunity to prosecute an appeal which, as presently framed, is doomed to fail, he would not be prejudiced.
23.	On the other hand, if the appeal is reinstated, the mother will incur legal expenses and need to deal with the stress associated with litigation about the children which has been finalised.  She ought not to be burdened by that additional stress unless it is a necessary cost of doing justice between the parties and in the interests of the children.  That is not the case.
Conclusion & Costs
24.	Each of the factors that required consideration individually weigh against an order that the appeal be reinstated.  Considered in combination, the case against reinstatement is extremely strong as a consequence of which the father’s application will be dismissed.
25.	In the event the father’s application failed, the mother sought costs in the amount of $2,500.  Counsel for the father appropriately conceded that an order the father pays the mother’s costs would be proper.  In circumstances where the amount sought is appropriate, an order to that effect will be made.
I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 17 August 2015.

Associate:  

Date: 17 August 2015