Sellink & Sellink  FamCAFC 30 (1 March 2017)
This case note considers the case of Sellink & Sellink and the discretion by the Court when considering whether or not to allow the reopening of an Appeal in circumstances were it had been deemed abandoned.
Family Law Rules 2004 (Cth), rr 22.09, 22.21
Bernieres and Anor & Dhopal and Anor  FamCAFC 149
Joshua & Joshua (1997) FLC 92-767
Malak & Mairie  FamCAFC 112
Molloy & Molloy  FamCAFC 264
Sinnott & Firth (No 2) (2013) 51 Fam LR 28
Tormsen & Tormsen (1993) FLC 92-392
Appeal Hearing and Judgement: 1 March 2017
JUDGMENT OF: Murphy J
1 March 2017
LOWER COURT JURISDICTION: Federal Circuit Court of Australia, Orders of 4 February 2016
- This case note considers the case of Sellink & Sellink and the discretion by the Court when considering whether or not to allow the reopening of an Appeal in circumstances were it was deemed abandoned.
- The Court considered whether the applicant has established that there is a substantial issue to be raised on appeal.
- If the answer was no, then the application would fail.
- If the answer was yes, then other considerations may become relevant to the exercise of the discretion including:
- the extent of the delay;
- the reasonableness of any explanations offered for the delay;
- any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise; and
- the desirability, in the public interest, that there be finality to litigation
- Upon hearing of the application, Murphy J did in fact order that the Notice of Appeal be reinstated and made directions (among other orders) for the mother to file an amended notice of appeal, copies of the appeal index and a certificate pursuant to rule 20.20(2) of the Family Law Rules 2004 (Cth).
- The appellant mother sought to reinstate an appeal which had been deemed abandoned by reason of her admitted non-compliance with directions made in respect of the appeal
- Rule 22.21 of the Family Law Rules 2004 (Cth) (“the Rules”). deems an appeal abandoned if the appellant fails to file the appeal books as directed.
- The mother’s application is that the default occurred through negligence on the part of her then solicitors who, she asserts, had at all times instructions to prosecute the appeal on her behalf.
- Upon becoming aware of the subject default, the mother says she took all steps and these facts were not challenged by the father.
- As to the discretion of the Court, the case of Joshua & Joshua (1997) FLC 92-767, per Lindenmayer J, referring to McHugh J’s wellknown and frequently-cited judgment in Gallo v Dawson  HCA 30; (1990) 93 ALR 479, was referred to. At 84,440:
… the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation …
- More recent examples of statements of similar effect can be seen in Bernieres and Anor & Dhopal and Anor  FamCAFC 149, per Strickland J; Malak & Mairie  FamCAFC 112, per Strickland J; and Molloy & Molloy (2016) FamCAFC 264, per Ryan J.
What Issues Arise On The Prospective Appeal?
- There were six grounds for the appeal.
- Counsel for the applicant conceded that the Notice of Appeal in its current form contains grounds which had limited prospects of success but this related to the allegations by the mother against her former solicitor.
- Counsel foreshadowed the filing of an Amended Notice of Appeal which included the contention that the mother was not afforded procedural fairness by reason of the procedure adopted by his Honour both in setting the matter down for a hearing at what was described as a “trial callover” and what occurred in the mother’s absence at that “trial callover”.
Is It Fairly Arguable That The Appeal has Merit?
- At first instance, his Honour did not give any reasons for decision. It is said that his Honour sought to rely upon the transcript as founding the orders that he made. Whether or not his Honour was entitled to do so, and whether or not his Honour did in fact do so, there are no reasons for judgment in terms given to support the orders.
- The prospective grounds of appeal were accompanied in the written summary of argument and the appeal court considered that there were substantive issues to be canvassed on the appeal.
- Counsel for the mother referred to Sinnott v Firth (No 2) (2013) 51 Fam LR 28. That case involved a successful appeal devolving from issues also emanating from a “trial callover” held by his Honour and the circumstances are arguably at least somewhat analogous to the circumstances discussed and ultimately prosecuted successfully in Sinnott.
- Given the advice by her then solicitor that she did not need to appear at the “trial callover”, she was represented, not by her solicitor at that “callover”, but by a town agent. She alleges that her instructions to her solicitors were always that family violence played a predominant role in her case in respect of parenting orders and she asserts she made it very clear that this was a predominant issue in her case and should be notified as such to the court. The mother says that these issues were not presented by the town agent to the court. The mother says, in effect, that on any view of the transcript the agent cannot be said to have put her case to Judge Howard.
- Issues of procedural fairness similar to those which emerged in the decision in Sinnott relating to the making of an order in chambers and the consequences for non-appearance by a party at a “trial callover”, together with the events which occurred at that “callover” in her absence, are central to issues which the mother seeks to prosecute on her appeal.
Is It Fairly Arguable That Orders Will Be Set Aside?
- Satisfying the court that an appeal’s merit points to its reinstatement involves establishing not only that there are real issues of appealable error to be determined but that the establishment of any such errors could point to the setting aside of the impugned orders and the making of alternative orders, or the remitter of the matter for a consideration of that issue.
- The mother contended that in the context of her allegations of family violence and what the family report in the proceedings before Judge Howard referred to as a “toxic relationship” between the parties, point to the order for equal shared parental responsibility being set aside.
- The mother also asserts that injunctive orders sought by her in respect of the father not attending the children’s school were not at all addressed by his Honour. Similarly, it is said that orders for time with the father materially different to those made, should embrace changeover arrangements which accommodate asserted issues of family violence.
- The Judge that the mother established a fairly arguable case of appealable error and for the setting aside of the impugned orders by reason of the injustice to her, and potential detriment to the children, which, it can be argued, will occur if the appeal is not permitted to be prosecuted.
Summary of Conclusions
- The applicant mother explained her failure to comply with the directions which are the catalyst for the abandonment of her appeal by reason of the inactions of her then solicitors.
- The Appellate Court was satisfied:
- on the evidence before him that the mother took all reasonable steps in seeking to rectify the default when she became aware of it and thereafter undertook all steps required of her in a timely fashion.
- that the mother raised substantial issues on the appeal, including for example in respect of equal shared parental responsibility which in turn, of course, has ramifications for the exercise of the court’s powers pursuant to Part VII of the Act.
- that the issues raised in asserting appealable error lead, if successful, to sustainable arguments that the impugned orders should be set aside.
- that the respondent points to no hardship that, subject to satisfaction of s 117(2A) of the Act, cannot be compensated by an order for costs save, of course for him being subject to appeal proceedings. However, if otherwise justice points to an appeal being heard, that is a prejudice suffered potentially by every litigant.
- It was noted that there was an offer to settle this application under cover of a letter directed to the father’s solicitors on 27 February 2017. It was made clear in that letter that it would be sought to be tendered before me on the question of costs. The letter invited the father to consent to the application for reinstatement and, in referring to the recent decision of Molloy contended that “it is likely that court will reinstate our appeal”.
- Justice Ryan in Molloy & Molloy  FamCAFC 264 (14 December 2016) said at paragraph 18:
I do not accept the argument advanced by the solicitors that the respondent properly advised should have conceded the application. For that proposition to be made good, the respondent needed to be in possession of the entire facts. As has been established, the material upon which the solicitors relied, until this morning, was misleading and provided an explanation which by reference to the facts known to the respondent did not withstand scrutiny. A further explanation by the partner appearing with the relevant solicitor has shown that had the entirety of the facts been known and made available to the respondent before today, it may well have been that the respondent should have conceded the application. However, on the basis of the material known to the respondent until the commencement of the hearing this morning the same cannot be said.
- In that case, the solicitors were to pay the respondent’s costs of this application in the amount sought. However, if a respondent properly advised should have conceded the application, then perhaps costs may be awarded.
- In Sellink, Murray J said, “It seems to me appropriate that any considerations flowing from that particular letter should be left to the question of costs which I have reserved to the Full Court.”
- Costs were reserved. If costs were ultimately made, the mother indicated that she would seek those from her former solicitor. Consequently, they should be given appropriate procedural fairness to respond to any application. This would be considered at or after the appeal.
This article does not represent the views of the firm. It a case note based on a decision made by the Full Court of the Family Court in relation to family law property case appeal involving issues of reinstating an appeal and costs.
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