Extension of Time to Appeal

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

 

Appeal Number: NOA 37 of 2020

File Number: BRC 15038 of 2018

 

Mr Balmer

Applicant

 

And

 

Ms Balmer

Respondent

 

And

 

Independent Children’s Lawyer

 

 

EX TEMPORE REASONS FOR JUDGMENT

1. Before me today is an Application in an Appeal filed on 27 May 2020 by Mr Balmer (“the father”) seeking an extension of time in which to file a Notice of Appeal from orders made on 22 April 2020 by a Judge of the Federal Circuit Court of Australia (“the Federal Circuit Court”). Those orders were short in compass and I set them out in full below:

1.         That the father file and serve the consolidated trial affidavit of evidence in chief, the one affidavit for each witness intended to be called in his case and an Outline of Case document by no later than 4.00pm on 6 May 2020.

2.         That this matter remain listed for Final Hearing for not more than three (3) days commencing at 9.30am on 11 May 2020 in the Federal Circuit Court of Australia at Brisbane.

2. Both Ms Balmer (“the mother”) and the lawyer appointed[1] to separately represent the interests of the three children of the relationship (“the ICL”) oppose the father’s application.
3. I interpolate here that both the father and the mother filed their Written Submissions late and require leave to rely on those documents. No party opposed such leave and so I will grant each of the parties that leave.
4. The terms of the orders, at least on their face, raise doubt as to the competency of an appeal from such orders, even if the father’s application were to be successful (see Commonwealth v Mullane (1961) 106 CLR 166 at 169; Tallant & Kelsey (2016) FLC 93-742; Paintal & Paintal [2020] FamCAFC 123). However, the orders are to be considered against the background of this case which can be summarised as follows:

a) Pursuant to orders made on 26 September 2019, this matter was listed for a defended hearing over three days to commence on 11 May 2020. The father was self-represented at the time;
b) As part of those orders, each party was prohibited from personally cross- examining each other pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) and, as a Notation, the parties were advised that they were entitled to apply for legal representation under the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”);
c) On 13 February 2020, the father had contact with Legal Aid Queensland and was informed that the Federal Circuit Court had not sent a “banning notice” to them which would enable the father to apply under the Scheme for representation. That “banning notice” was ultimately sent by the Federal Circuit Court and the father was approved for representation under the Scheme on 2 April 2020.

5. The matter then came before the primary judge for a directions hearing on 22 April 2020 at which point the father’s newly appointed representatives indicated that an adjournment of the trial was sought on the basis that they had only recently come into the matter and there was a lot of relevant material which they were yet to see. The primary judge indicated his reluctance to adjourn the trial given the recommendation of the Family Report writer that the children, who were at that time residing with the father, should live with the mother as soon as possible. Ultimately, the father’s representatives sought an extension of time to file his trial material, which application was granted.
6. It can be seen, then, that the orders made on 22 April 2020, though procedural on their face, reflect a dismissal of the father’s oral application for an adjournment of the trial and, to that extent, are competently able to be appealed from, should this Court grant the father’s application for an extension of time.

Applicable legal principles

7. The principles to be applied when considering an extension of time for the filing of an appeal are well-known and often-cited in this Court (see, for example, Pendleton & Pendleton [2018] FamCAFC 203). However, something needs to be said of the lack of utility of this appeal which, in my judgment, necessitates the dismissal of this application without needing to consider its merits or any explanation for the delay.

The utility of the appeal

8. As I raised with the father today, the futility of an appeal from the 22 April 2020 orders is plain given that on 11 May 2020 the Federal Circuit Court made final parenting orders by consent. I understand that the father has filed a Notice of Appeal, within time, from those substantive orders and that, as the father himself concedes, this application for an extension of time to appeal from the 22 April 2020 orders is merely an attempt to bolster his appeal from those final consent orders (see, for example, paragraph 5 of the father’s Written Submissions filed on 30 July 2020).
9. However, the father’s complaints as to the primary judge’s failure to adjourn the trial on 22 April 2020 can properly be put in the appeal from the final consent orders, given that the father contends such dismissal was a denial of procedural fairness which ultimately denied him a fair trial and therefore affected the outcome (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478).
10. Moreover, the remedy the father seeks on appeal is a remitter of the proceedings for another trial before a different Judge of the Federal Circuit Court. Even if this Court was to find error on the hearing of an appeal from these orders, the only remedy available would be the remitter or re-exercise of the question of an adjournment of a trial which has already taken place.
11. Clearly, then, an appeal from these orders is completely lacking in utility and ought be dismissed.

Costs

12. The mother sought an order requiring the father to pay her costs of this application.
13. Pursuant to orders made by the Appeals Registrar on 5 June 2020, any party seeking costs was to file and serve a schedule of those costs by 4.00pm on 31 July 2020. The mother has not filed such a schedule. Notation 1 to the order made by the Appeals Registrar specifically alerted the parties to the consequence of failing to file such a schedule being a prohibition on making an application for costs without leave of the Court.
14. In my judgment it is important that such orders are followed. The requirement for the filing of a schedule of costs well in advance of the hearing is designed to assist both the party against whom costs is sought and the Court to understand and assess the reasonableness or otherwise of the quantum of costs, and for the Court to be in a position to resolve the appropriate amount to fix for costs, with the benefit of submissions, if costs are ordered. The fixing of a sum for costs avoids the time, inconvenience and further costs to the parties and to the Court of the assessment process.
15. In my judgment, the mother ought not be granted leave to bring an application for costs in light of her non-compliance with the orders of the Court made on 5 June 2020.
16. For these reasons, I dismiss the father’s Application in an Appeal filed on 27 May 2020 and make no order as to costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the ex tempore reasons for judgment edited to correct grammatical errors and some infelicity of expression of the Honourable Justice Kent delivered on 11 August 2020.

Associate:

 

Date:  11 August 2020

 

[1] Pursuant to s 68L of the Family Law Act 1975 (Cth).

Posted in: Derek Legal Blog at 08 September 20