Court deadlines: One can just imagine the enormous stress felt by a mother and her lawyer as they tried to electronically file a “voluminous” Appeal Book that had been received from a third party solicitor at the last minute–only to have the file’s large size mean the download to the court was only completed 11 minutes after the expiry of the deadline to file. Luckily for the mother, however, the court ruled the delay had been properly explained and that the 11 minutes were not a “material” delay. As a result the mother’s appeal was reinstated.
In the case of Halbert & Millson (court-ordered pseudonyms), a mother was appealing parenting orders relating to her two children (aged 8 and 13), after the primary judge had reversed living arrangements from the mother to the father. The court had ordered for the children to have no contact with the mother for three months, followed by a regime of supervised time with her. Interim orders then gave primary custody to the mother with the kids to spend time with the father.
However, at one stage the mother withheld the children, and the father then sought orders for sole parental responsibility and that the kids live with him and not spend any time with the mother.
The primary judge found the mother ‘posed an unacceptable risk of emotional harm to the children and concluded that the mother “suffers considerable emotional dysregulation”’.
The appeal court said: “The consequences of his Honour’s orders are significant. The children’s primary carer has been changed and, at least for a time, they had no time with the mother who had, up until then, been the primary carer.”
Although the mother wasn’t able to obtain Legal Aid for her litigation, she was able to obtain representation with a solicitor from the Law Society of NSW Pro Bono Scheme.
The mother was directed to file her Digital Appeal Book by 2 July 2020 by 4:30pm, but it was sent electronically to the Appeal Registry at 4:41pm—meaning it was 11 minutes late. The appeal was therefore deemed abandoned pursuant to the Family Law Rules.
The mother then made an application to reinstate her appeal, with her lawyer obliged to explain the delay:
“In explanation of the delay in filing the Digital Appeal Book, the mother’s solicitor said that given her limited role, that is, as a solicitor within the Law Society of New South Wales Pro Bono Scheme, she did not have the resources to compile the Appeal Book. She sought assistance from another law firm on 11 June 2020, who on 29 June 2020, advised her that they could no longer assist and thus on 30 June 2020, she commissioned an external provider to compile the Appeal Book. The book is voluminous and was sent to her electronically on 2 July 2020 at 4.28 pm, the day on which the book was to be filed. The size of the file took time to download with the result that it was filed 11 minutes late.”
Applications for reinstatement of an appeal
In deciding whether to reinstate an appeal, courts will look at the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences of a grant or refusal of the application for the parties.
The fundamental principle for reinstating an appeal though is that an appeal should be allowed if to do otherwise would cause substantial injustice. The fact that there are “rules which fix times for doing acts” in family law does not mean that those deadlines themselves should “become instruments of injustice”. And while it would be expected that “gross delays” could see a matter dismissed, a delay of 11 minutes could hardly be considered as a significant delay, particularly when it was not caused by the mother’s conduct. As the court noted: “The reason for the delay have been well explained and it could not be seriously contended that a delay of 11 minutes is material.”
This case outcome should not be taken to mean that court deadlines are somehow flexible, or that being “just a few minutes late” in filing won’t matter to a court. The facts of this matter show that courts will be fair and reasonable if a delay is outside of the control of an applicant, or caused by their solicitor’s behaviour. But if the delay is caused by a litigant’s conduct, the outcome may well be very different and an appeal may not in fact be reinstated.
You can read this case here.
You may also like to read our article on family law deadlines, or our article on what you can do to move a property matter forward if the court deadline has expired.
For family law advice, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.