FAMILY COURT OF AUSTRALIA

Sands & Gard	[2015] FamCAFC 210	

FAMILY LAW – APPEAL – ADJOURNMENT – Where the wife makes an oral application to adjourn the hearing to await the outcome of a recently made application seeking legal aid – Where the wife has had ample time to obtain legal aid – Application dismissed.

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the husband seeks an extension of time to file a Notice of Appeal – Where the application is opposed – Where the explanation given for the delay is not satisfactory – Where there appears to be an arguable case on appeal – Where there are consequences for the husband and the wife if the application is granted or refused – Where the justice of the case requires that the application be allowed.	

Family Law Act 1975 (Cth) – ss 94AAA(5), (10), and (12)
Family Law Rules 2004 (Cth) – rr 22.02, 22.03 and Chapter 22	

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

APPLICANT:	Mr Sands	

RESPONDENT:	Ms Gard	

FILE NUMBER:	ADC 	3122		of	2011	

APPEAL NUMBER:	SOA 	50		of	2015	

DATE DELIVERED:	4 November 2015	

PLACE DELIVERED:	Adelaide	

PLACE HEARD:	Adelaide	

JUDGMENT OF:	Strickland J	

HEARING DATE:	4 November 2015	

Lower court jurisdiction:	Federal Circuit Court of Australia	

lower court judgment date:	9 June 2015	

LOWER COURT MNC:	[2015] FCCA 2719	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Horvat	

SOLICITOR FOR THE APPLICANT:	Christopher Ganzis & Co	

thE RESPONDENT:	In person	

Orders
(1)	The oral application made by the respondent wife seeking to adjourn the hearing today be dismissed.
(2)	The time for the applicant husband to file and serve a Notice of Appeal be extended to the close of business on Friday 20 November 2015.
(3)	No order as to costs.

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

Appeal Number:  SOA 50 of 2015
File Number:  ADC 3122 of 2011

Mr Sands	
Applicant

And

Ms Gard	
Respondent

EX TEMPORE REASONS FOR JUDGMENT
Introduction
1.	Before the court is an application in an appeal filed by Mr Sands (“the husband”) on 15 July 2015, wherein he in effect seeks an extension of time to file a Notice of Appeal against certain of the orders made by Judge Mead on 9 June 2015.  The application is supported by two affidavits, the first filed on 15 July 2015 and the second filed on 22 October 2015.
2.	The application is opposed by Ms Gard (“the wife”), although I note that there has been no documentation filed by or on her behalf in response to the application.
3.	At the trial before Judge Mead, which culminated in the orders the subject of the appeal, both parties were represented, the wife, who was the applicant before Judge Mead, was represented by solicitors, Jordan and Fowler, and Mr Childs of counsel appeared for her.
4.	When the matter was called on today the wife appeared without legal representation.  The wife informed me that her solicitors, Jordan and Fowler, had indicated to her that they would not take this matter on if she was the recipient of legal aid.  Although I do not have access now to the first instance file, I am told that by counsel for the husband who has checked with her instructing solicitor that no Notice of Ceasing to Act has been filed by those solicitors.  That concerns me greatly, given the obligation and onus on the solicitors was to file a Notice of Ceasing to Act so that everyone knew what the position was.
5.	The wife tells me that she made an application for legal aid about one week ago and she is waiting to hear whether that is successful.  I note though that I have heard a number of things from the wife this morning about that, and I am not entirely satisfied that she has not been told by Legal Aid, that aid would not be granted for the application today, but I proceed on the basis that the wife is applying for legal aid not only for this application, but also for the appeal that might follow, if the application is successful.
6.	When I enquired of the wife what her position was in relation to the application for an extension of time, she indicated that she wanted to obtain legal advice, and that is why she had applied for legal aid.  In those circumstances she wanted this application adjourned to await the outcome of her legal aid application.
7.	That application for adjournment is opposed, and I confirm that I am not prepared to grant an adjournment.
8.	The application before me today was filed on 15 July 2015, and presumably it was served within short compass thereafter, yet it was only a week ago that the wife made her application for legal aid.  To repeat, she has not filed any documentation, and specifically, she has not filed an application to adjourn these proceedings, and her application today is an oral one.  The wife gave no notice of her application to adjourn to the other side, and they have come here today prepared to proceed with the application that has been filed.  I am told by the wife that she initially sought legal advice from her solicitors, but that obviously was not forthcoming.  It seems that she also sought advice from some advisory service, and the advice that she received from them was that she should make an application for legal aid.
9.	The wife has had ample time to obtain legal aid, and I am not prepared to grant the adjournment at this late stage.
10.	I also observe that with these applications the onus is fairly and squarely on the applicant to satisfy this court that the interests of justice would require an extension of time to allow the appeal to proceed.  It is unusual for a respondent to do anything other than consent or just oppose the application, because the respondent usually, and this case is no different, has no direct knowledge of the circumstances relied upon for the extension of time.  I am referring there to the explanation for the failure to file the Notice of Appeal within the time allowed under the Family Law Rules 2004 (Cth) (“the Rules”).  That is one of two primary issues that are considered on an application such as this, namely the explanation for failure to file within time, the other primary issue being the merits of the appeal.  All the wife need say about the second issue is that, as far as she is concerned, the appeal has no merit, and she will be opposing it when and if an appeal is filed.
11.	Thus, I do not see the need necessarily for the wife to be represented today, but that is not the reason why I propose to dismiss the application for adjournment.  I am dismissing the application because of the wife’s failure to make an application for legal aid earlier than she did, and in my view there was ample time for her to do so, and it is inappropriate for her to come along on the day of the hearing and make an application for an adjournment in those circumstances, and expect to obtain the adjournment.
The relevant legislation and rules of court
12.	Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) deals with, inter alia, appeals from the Federal Circuit Court.  
13.	Section 94AAA(5) provides:
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.
14.	Sections 94AAA(10) 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);
…
may be heard and determined by a single Judge or by a Full Court. 
…
(12)	An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
15.	Chapter 22 of the Rules deals with appeals.  
16.	Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
17.	Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. 
Applicable Principles
18.	The law in relation to applications to extend time is 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.
19.	That decision has been followed in a number of Full Court cases including the cases relied on by the applicant namely, McMahon & McMahon (1976) FLC 90-038, and Tormsen and Tormsen (1993) FLC 92-392.  
20.	In summary, what those cases tell the court is that there are a number of relevant factors which need to be addressed, including whether there are adequate reasons to explain the failure to comply with the timeframe for the filing of a Notice of Appeal, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice which cannot be compensated by orders for costs or otherwise, 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.
21.	I have not been addressed on all of those factors being relevant to this matter, but in my view, the nature of the litigation is a relevant factor, in that the issue in the trial before the trial judge was parenting orders, and the question of whether there should be orders allowing the children to spend time with and/or communicate with their father.  As Ms Horvat has said, and I agree, that is clearly a significant issue, and thus that aspect in terms of the nature of the litigation, is relevant in determining this application.
22.	However, although there are a number of relevant factors, the overarching principle is to determine where the justice of the case lies.
Discussion
23.	As to the relevant factors in this case, those that were identified by the husband’s counsel and argued were primarily, the explanation for the failure to comply with the timeframe for the filing of a Notice of Appeal, the merits of the appeal and the consequences for the parties of granting or refusing the application.
24.	Turning then to the identified factors.
The explanation for the failure to comply with the timeframe for the filing of the Notice of Appeal
25.	The explanation for the failure to comply with the Rules is set out in the husband’s affidavit filed on 15 July 2015. 
26.	In summary, the orders sought to be appealed were made by Judge Mead on 9 June 2015.  Her Honour delivered ex tempore reasons for judgment at the conclusion of the trial on that day.  Her Honour indicated that she would need to settle those reasons, and she alerted the parties and their counsel to the fact that it might be a week or two before the settled judgment was published.
27.	I am told, and I accept, that virtually immediately following the making of the orders by her Honour, the husband instructed his solicitors that he wished to appeal.  The solicitors in consultation with the husband determined to await the settled reasons for judgment before preparing and filing a Notice of Appeal, and in that regard when the settled reasons had not been published within the timeframe her Honour indicated, on 23 June 2015 an email was sent to her Honour’s chambers enquiring as to when the reasons for judgment would be available.  On 25 June 2015 there was a response to the effect that her Honour was aware of the request for the reasons, but her Honour’s associate was unable to advise of a date when those reasons would be available.
28.	It seems the solicitors, again in consultation with the husband, determined to continue to wait for her Honour’s reasons before preparing and filing the Notice of Appeal.  The reasons were still not forthcoming, and on the last day that the appeal could be filed namely, 7 July 2015, the solicitors for the husband contacted him advising that, and he attended their offices and instructed his solicitors to file the appeal, despite the reasons not yet being available.
29.	An attempt was made to file the Notice of Appeal that day through the Commonwealth Portal, however the situation with the Portal is that appeals, and/or applications in an appeal, are not able to be filed through that Portal.  Upon learning of that, and being told that the Notice of Appeal could not be filed in the Adelaide Registry, what was then done was that the Notice of Appeal was sent to the Southern Appeal Registry in Melbourne by express post.  I challenged the husband’s counsel as to why it was sent by post rather than by, for example, facsimile or email, which would have ensured that it was filed within time.  As I understand counsel’s instructions, it is suggested that the solicitors, or a member of the staff of the solicitors, was told by the Appeal Registrar that the Notice of Appeal should be filed by post.  As I said during the course of submissions, I do not accept that.  I do not accept that the Appeal Registrar would have said that to any solicitor or to any member of staff of the solicitors on the last day an appeal could be filed.
30.	In any event the Notice was sent by express post rather than by facsimile or email.  I interpolate that the Rules provide quite clearly for filing by facsimile or email.  The result of forwarding the Notice of Appeal by post was that it was received one day after the expiry of the 28 days allowed under the Rules.  Unsurprisingly, the Appeal Registrar duly returned the Notice of Appeal advising that it could not be received because it was out of time.
31.	As expected, the wife could not, and did not, say anything to me in relation to that issue, given that she clearly had no knowledge of what had happened in relation to the attempts to file the Notice of Appeal.
32.	As I pointed out to counsel for the husband during submissions, in my view, there was nothing to prevent a Notice of Appeal being filed within time despite the reasons for judgment not having been received, and if that had been done, the grounds of appeal, as indeed they appear in the draft Notice of Appeal for the purposes of the application, could be drafted in general form.  That would have still allowed the appeal to be filed within time, and all that would have been required to regularise the appeal, was once the reasons were in fact received, if necessary an Amended Notice of Appeal could have been filed.  However, that was not done.
33.	That said though, I can understand why the filing of the Notice of Appeal was delayed in the hope that the reasons for judgment would be received to enable that to occur, and indeed, her Honour initially at least, on the day of making the orders, gave the parties to understand that her reasons would be available within sufficient time for a Notice of Appeal to be filed namely, a week or two after the orders were made. 
34.	As to the failure to file the Notice of Appeal by email or facsimile, to repeat, I am concerned about that, but I am not going to visit that failure upon the husband.  That was a matter he left to his solicitors; clearly they could have filed the Notice of Appeal by facsimile or email, but it seems they were unaware of the Rules providing for that.  That in itself is a problem but I will not say anything more about that.
The prospects of success of the appeal
35.	I accept the submission of counsel for the applicant that there is a substantial issue to be heard on appeal and that relates to the nature of litigation, and the specific orders made by her Honour which are sought to be appealed against, and in particular her Honour’s order that the children are not to spend time with their father.
36.	I have a draft Notice of Appeal which is annexed to the affidavit of 15 July 2015, and which I take to be the Notice of Appeal upon which the husband would wish to proceed if I grant the application.  I am aware from submissions made by counsel that if the appeal is allowed to proceed, an Amended Notice of Appeal will be filed, however I cannot take that into account because of course I do not have that document before me, the only document I have is the draft Notice of Appeal, and the only grounds of appeal that I can have regard to are the grounds set out in that draft Notice.
37.	There are six grounds of appeal in the proposed Notice of Appeal as follows:
1.	That the trial judge erred in finding that it is not in the best interests of the children, [A] and [B] born 2005 and [C] born 2007 (hereinafter referred to as “the children”) for the parties to have equal shared parental responsibility.
2.	That the trial judge gave insufficient reasons and/or no reasons in finding that the mother should have sole parental responsibility for the children.
3.	That the trial judge erred in finding that the children should not spend any time with the father.
4.	That the trial judge gave insufficient reasons and/or no reasons in finding that the children should not spend time with the father.
5.	That the trial judge erred in failing to consider whether the children should spend equal time or substantial and significant time with the father as required by Section 65DAA.
6.	That the trial judge gave insufficient reasons and/or no reasons when failing to consider whether the children should spend equal time or substantial and significant time with the father as required by Section 65DAA.
38.	I have expressed some doubt as to the prospects of success of Grounds 5 and 6 and thus I particularly need to address Grounds 1 to 4, which it seems to me are in a different category.  I have though challenged counsel as to those parts of those grounds which complain that her Honour gave no reasons for her findings.  I do not accept that, and if that was the sole basis of the appeal, then there would be no prospects of success.  Fortunately, what is also complained of in those grounds of appeal is that there were insufficient reasons given, and that is a different issue.
39.	In attempting to assess the merits of the appeal I am not able to be definitive because I do not have the full range of documentation before me that an Appeal Court would have.  What I have are the reasons for judgment of the trial judge and the draft Notice of Appeal.  I do not have, for example, the transcript of the hearing before her Honour, and I do not have the benefit of written submissions by both sides in relation to the appeal.
40.	Thus, I am at somewhat of a disadvantage, but I can only do the best I can from the documents that I do have.  In relation to proposed Grounds 1 to 4, save and except in relation to the complaint of no reasons, I consider that the applicant has a chance of success.  In reaching that conclusion I again have regard to the substantial issue that is sought to be raised on appeal, and the relevance of the orders that were made by her Honour, and in particular the order that the children not spend any time with their father.
41.	However, in saying that, the husband should not assume that if the appeal is allowed to proceed, that it will be successful.  That is not something that he can take away from the comments that I have just made.  To repeat, I have limited documentation, but on that documentation it seems to me that he has a chance of success.
42.	The exercise is somewhat similar to an application for summary dismissal.  In relation to such applications unless it can be shown that there is no possible basis on which the proceedings should be allowed to proceed, then any application for summary dismissal must be dismissed.  To put it another way, even where there is the remotest chance of success, an application like this should be successful, and an appeal should be allowed to proceed, subject to the other relevant factors which I have identified earlier in these reasons, and subject to where the overall interests of justice lie.
The consequences of granting or refusing the application
43.	Clearly if the application is granted that will prejudice the wife.  She will have to deal with the appeal whereas at the moment there is effectively no appeal on foot.  On the other hand there is also an obvious prejudice to the husband if the application is refused.  In that event he would not be able to pursue his appeal, and there is no appeal from a refusal to grant an application such as this.  There is, of course, the ability to make an application for special leave to appeal to the High Court of Australia, however that is a difficult and costly exercise, and may not be a practical option for the husband.
44.	Thus, one or other of the parties will suffer prejudice no matter what the decision is.
Conclusion
45.	Although I have some sympathy with the husband in relation to the failure to file the Notice of Appeal within time, to repeat, I have serious concerns about the explanation being a satisfactory one, given the alternatives that were available to ensure that the Notice of Appeal was filed.  I obviously note though that it was only one day late in the attempt to file.
46.	In relation to the merits of the appeal, as I have said, I am satisfied that there is a chance of success, and to repeat, even the remotest chance of success is sufficient.
47.	There is clearly prejudice to the wife if the court allows the application and prejudice to the husband if the application is refused.
48.	In considering the matter overall, and the overarching principle namely, where the justice of the case lies, in my view, it is appropriate to grant the application.  
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 4 November 2015.

Associate:  

Date:  9 November 2015