Ak v v [No 2]
[2021] WASCA 74
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AK -v- V [No 2] [2021] WASCA 74
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 19 APRIL 2021
DELIVERED : 19 APRIL 2021
PUBLISHED : 29 APRIL 2021
FILE NO/S: CACV 23 of 2019
BETWEEN: AK
Appellant
AND
V
Respondent
FILE NO/S: CACV 2 of 2021
BETWEEN: AK
Appellant
AND
V
Respondent
FILE NO/S: CACV 9 of 2021
BETWEEN: AK
Appellant
AND
V
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: O'BRIEN J
Citation: [V] and [AK] [2019] FCWA 10
File Number : PTW 4789 of 2010
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: CRISFORD J
Citation: [V] v [AK] [2016] FCWA 57
File Number : PTW 4789 of 2010
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: O'BRIEN J
Citation: [AK] and [V] [2021] FCWA 10
File Number : PTW 4789 of 2010
Catchwords:
Appeal - Practice and procedure - Whether extension of time in which to appeal should be granted - Whether extension of time for compliance with a springing order requiring the filing of an appellant's case should be granted after appeal dismissed by operation of springing order - Whether appeal should be dismissed on the basis that none of the grounds of appeal have any reasonable prospect of succeeding - Turns on own facts
Legislation:
Family Court Act 1997 (WA), s 70A, s 70B, s 202L(3)(b), s 237(1) - (3)
Result:
CACV 23 of 2019
Application for an extension of time to comply with springing order dismissed
CACV 2 of 2021
Application for an extension of time in which to appeal dismissed
Appeal dismissed
CACV 9 of 2021
Appeal dismissed
Category: B
Representation:
CACV 23 of 2019
Counsel:
| Appellant | : | R Lethbridge SC and C Andrews |
| Respondent | : | S Penglis SC |
Solicitors:
| Appellant | : | Elite Family Law |
| Respondent | : | Fletcher Law |
CACV 2 of 2021
Counsel:
| Appellant | : | R Lethbridge SC and C Andrews |
| Respondent | : | S Penglis SC |
Solicitors:
| Appellant | : | Elite Family Law |
| Respondent | : | Fletcher Law |
CACV 9 of 2021
Counsel:
| Appellant | : | R Lethbridge SC and C Andrews |
| Respondent | : | S Penglis SC |
Solicitors:
| Appellant | : | Elite Family Law |
| Respondent | : | Fletcher Law |
Case(s) referred to in decision(s):
A v C [No 2] [2015] WASCA 199
AK v V [2021] WASCA 31
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283
CDW v LVE [2015] WASCA 247 (S)
CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Livesey v NSW Bar Association (1983) 151 CLR 288
MIB v JAP [2019] WASCA 175 (S)
Simonsen v Legge [2010] WASCA 238
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
T v S [2015] WASCA 225
Willoughby v Clayton Utz [2007] WASCA 5
REASONS OF THE COURT:
Background
These appeals relate to a long standing dispute between the appellant (the mother) and the respondent (the father) as to parenting orders made in relation to their child, who is currently 11 years old.
A detailed history of the proceedings between the parties is set out in the recent decision of this court in AK v V (February 2021 decision).[1] We adopt that summary without repeating it. The following points may be noted from that summary.
[1] AK v V [2021] WASCA 31[1] - [58].
On 25 February 2016, in the Family Court of Western Australia, Crisford J made orders (February 2016 orders), most relevantly providing that:
(1)the child live with the father and the father have sole parental responsibility for the child;
(2)until further order, and subject to the mother's compliance with certain other orders, the child spend time with the mother, generally from Friday to Sunday or Wednesday to Friday on alternate weeks;
(3)until further order, the mother be restrained by injunction from taking certain steps (such as attending medical practitioners about issues relating to the child, discussing certain matters with the child, or photographing injuries sustained by the child);
(4)in 12 months from the making of the 2016 orders, an expert witness (Dr W) undertake a review of the parties and the child and provide recommendations to the court as to whether it would be in the child's best interests to further progress the time she spends with the mother; and
(5)the proceedings be otherwise adjourned.
The February 2016 orders also provided, in order 7, that:
[i]n the event the [mother] does not comply with the times set out in order 4 of these orders, or should the [mother] breach any of the injunctions set out in these orders, the time she spends with [the child] to be suspended until the proceedings can be re-listed before the court.
The dispute determined by the February 2016 orders arose out of the mother's belief that the father had been abusing the child. Crisford J was satisfied that the father had not harmed the child. However, Crisford J found that the mother's unshakable views about the father, and her actions stemming from those views, were likely to pose an unacceptable risk of psychological and emotional harm to the child.
On 22 January 2019, O'Brien J made final orders in terms of the February 2016 orders relating to the time to be spent by the child with the mother, and continued injunctions restraining the mother from taking certain steps (January 2019 orders). In essence, O'Brien J found that the evidence before the court did not demonstrate any meaningful positive change in the views or behaviours of the mother since the February 2016 orders were made. O'Brien J was not satisfied that there should be any increase in the time the mother spent with the child.
On 29 March 2019, the father suspended the mother's time with the child due to asserted breaches of injunctions restraining the mother from discussing various matters with the child. On 10 May 2019, the mother applied for contact in accordance with the January 2019 orders to resume. On 20 August 2019, O'Brien J made orders having the following effect (August 2019 orders):
(1)the existing orders for the mother to spend time with the child were suspended;
(2)until further order, the child spend time with the mother on one occasion per week for a period of not more than two hours on each occasion, with each such visit to be personally supervised by a specified person; and
(3)programming orders were made for the obtaining of an updated report from the child's therapist and the filing of other documents, with the proceedings adjourned to 5 November 2019 'for monitoring, and further interim argument if required'.
The hearing on 5 November 2019 was adjourned at the parties' request, with certain procedural directions and rulings (November 2019 orders). O'Brien J ordered that the proceedings be adjourned to 28 January 2020 'for further monitoring'.
Two further procedural developments in the Family Court, which post‑date the summary in the February 2021 decision, may also be noted.
On 12 January 2021, two applications by the mother seeking a variation of the August 2019 orders were listed for hearing before O'Brien J. The mother was unrepresented at that hearing as her lawyer was unavailable. The mother asked O'Brien J to deal with her oral application that he recuse himself from the hearing of the matter, but did not seek a determination of her variation applications. On 19 January 2021, O'Brien J ordered that the mother's application for recusal was dismissed (January 2021 order), and published written reasons for that decision.
On 12 March 2021, the father filed a new application in the Family Court seeking a discharge of order 1 of the January 2019 orders (which provided for the time the child was to spend with the mother) and that the court otherwise determine the time the child should spend with the mother (2021 FCWA proceedings).
Appeals to this court
The mother has filed the following appeals against several of the orders of the Family Court of Western Australia referred to above.
CACV 2 of 2021 is an appeal against orders 2 and 3 of the February 2016 orders (which provided for the child to live with the father and for the father to have sole parental responsibility for the child). This appeal remained on foot at the time of the hearing before us. However, the appeal was filed out of time. As is implicit in the mother's application referred to at [17](2)(a) below, the mother required an extension of time to proceed with the appeal.
CACV 23 of 2019 is an appeal against the January 2019 orders (as well as earlier interim orders made on 21 September 2018 and 26 June 2018). This appeal was dismissed on 19 June 2019 by operation of a springing order requiring the filing of an appellant's case. This appeal is the subject of the mother's application referred to at [17](1)(a) below (for an extension of time to comply with the order to file an appellant's case).
CACV 109 of 2019 and CACV 146 of 2019 are appeals against the August 2019 orders and the November 2019 orders respectively. These appeals were dismissed on 25 February 2021, for reasons explained in the February 2021 decision.
CACV 9 of 2021 is an appeal against the January 2021 order. This appeal remained on foot at the time of the hearing before us.
Matters for this court's determination
The following matters were before the court on 19 April 2021:
(1)In CACV 23 of 2019 (the appeal against the January 2019 orders):
(a)the mother's application in an appeal filed on 3 February 2021 seeking an extension of time to comply with the springing order made on 28 May 2019;
(b)the father's application in an appeal filed on 12 February 2021 seeking security for costs; and
(c)the mother's application in an appeal filed on 19 March 2021 seeking an order that appeals CACV 23 of 2019, CACV 2 of 2021 and CACV 9 of 2021 be heard together.
(2)In CACV 2 of 2021 (the appeal against the February 2016 orders):
(a)the mother's application for an extension of time in which to appeal, which is made in the appeal notice filed on 21 January 2021;
(b)the father's application in an appeal filed on 12 February 2021 seeking security for costs; and
(c)the mother's application in an appeal filed on 19 March 2021 seeking an order that appeals CACV 23 of 2019, CACV 2 of 2021 and CACV 9 of 2021 be heard together.
(3)In CACV 9 of 2021 (the appeal against the January 2021 order):
(a)the mother's application in an appeal filed on 19 March 2021 seeking an order that appeals CACV 23 of 2019, CACV 2 of 2021 and CACV 9 of 2021 be heard together.
(b) the mother's application in an appeal filed on 1 April 2021 for an order that she file and serve a schedule of evidence to her appellant's case.
In addition, in CACV 9 of 2021, the court dealt with a registrar's notice to attend dated 31 March 2021 for the mother to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal had any reasonable prospect of succeeding, particularly having regard to the February 2021 decision.[2]
[2] February 2021 decision at [144], [149].
Orders made on 19 April 2021
At the hearing on 19 April 2021, we made the following orders in the appeals:
CACV 23 of 2019
(1)The appellant's application for an extension of time to comply with orders 1 and 2 of the orders of the court made on 28 May 2019 is dismissed.
(2)The appeal remains dismissed pursuant to order 2 of the orders of the court made on 28 May 2019.
(3)The respondent's application in an appeal filed on 12 February 2021 (seeking security for costs) is dismissed.
(4)The appellant's application in an appeal filed on 19 March 2021 (seeking an order that the appeals be heard together) is dismissed.
(5) The appellant is to pay the respondent's costs of the application for an extension of time, including the costs of responding to draft appellant's cases, to be assessed if not agreed.
CACV 2 of 2021
(1)The appellant's application for an extension of time in which to appeal is dismissed.
(2)The appeal is dismissed.
(3)The respondent's application in an appeal filed on 12 February 2021 (seeking security for costs) is dismissed.
(4)The appellant's application in an appeal filed on 19 March 2021 (seeking an order that the appeals be heard together) is dismissed.
(5)The appellant is to pay the respondent's costs of the application for an extension of time, to be assessed if not agreed.
CACV 9 of 2021
(1)The appeal is dismissed.
(2)The appellant's application in an appeal filed on 19 March 2021 (seeking an order that the appeals be heard together) is dismissed.
(3)The appellant's application in an appeal filed on 1 April 2021 (seeking an order that she file and serve a schedule of evidence) is dismissed.
(4)The appellant is to pay the respondent's costs of the appeal fixed in the sum of $1,800.
We said that we would publish our reasons for making these orders at a later date. These are our reasons for making those orders.
CACV 2 of 2021: Application to extend time to appeal against February 2016 orders
It is convenient to begin by dealing with the mother's application for an extension of time in which to appeal against orders 2 and 3 of the February 2016 orders.
The appeal notice in CACV 2 of 2021 was filed on 21 January 2021, just short of five years after the orders of Crisford J which are the subject of the appeal. The mother required an extension of the 21 day time limit in which to appeal,[3] which was sought in the appeal notice.
Mother's evidence and submissions
[3] See February 2021 decision [64] - [67].
In her supporting affidavit affirmed on 20 January 2021, the mother deposes that the only aspect of the February 2016 orders that she seeks to appeal against is the making of orders 2 and 3 on a final rather than an interim basis.[4] Senior counsel for the mother confirmed this to be the case in his oral submissions.[5] The mother deposes, in effect, that the purpose of the application and the appeal is to ensure that, in the event that the appeal in CACV 23 of 2019 succeeds and the matter is remitted to the Family Court for a review of the time the child is to spend with the mother:[6]
[T]he matters for determination at that hearing can be heard, considered and determined by the Judge presiding at that hearing without any constraints that might exist as a consequence of [orders 2 and 3 of the February 2016 orders] having been made as final orders.
[4] Mother's affidavit affirmed in CACV 2 of 2021 on 20 January 2021, par 5.
[5] Appeal ts (19 April 2021) 4.
[6] Mother's affidavit affirmed in CACV 2 of 2021 on 20 January 2021, par 6.
The mother also deposes that, after the 23 day trial heard between 3 November 2014 and 25 February 2016:[7]
I was aware there was a right of appeal in relation to the Orders and I did give consideration to appealing the orders generally, however, I decided it would be best to continue to work within the processes and procedures of the Family Court and the next steps in the matter as I understood them. Accordingly, no appeal has been brought by me before now against the Orders of 25 February 2016.
[7] Mother's affidavit affirmed in CACV 2 of 2021 on 20 January 2021, par 8.
The mother goes on to describe the factors which influenced the decision not to appeal against the February 2016 orders until January 2021. She describes the most significant factor in the following terms:[8]
[T]his appeal is in a specific and limited form and I did not consider the approach that is proposed to be taken, which is bringing an appeal in the narrow form in which this appeal is framed, until very recently, by which I mean in the last few weeks when I considered this in connection with consideration I was giving to how I might best approach the events that occurred and the Orders that had been made by Justice O'Brien on 22 January 2019.
The fact that I had not thought about bringing an appeal in the narrow form in which this appeal is framed until very recently is a key reason why I have not previously brought an appeal in this form. It is also relevant to some extent to why I have not [brought] an appeal generally against the Orders. The task in this appeal seems [so] small in scope and manageable, whereas a general appeal would be a massive endeavour.
[8] Mother's affidavit affirmed in CACV 2 of 2021 on 20 January 2021, par 26 - 27.
The mother describes the manner in which she came to engage senior counsel to deal with appellate matters, and to seek the current extension of time.
On 2 March 2021, the mother filed her appellant's case in CACV 2 of 2021. There is a single ground of appeal, which in effect contends that Crisford J erred in making orders 2 and 3 of the February 2016 orders on a final rather than an interim basis where, in the circumstances:
[T]he making of Order 2 and Order 3 in final form was premature and gave rise to a real risk that the Judge required to determine the issue of the extent to which it was in the best interests of [the child] to spend time with the [mother] in the medium to long term, whether on a further interim or final basis, might be unable to, or be restricted in, making the orders, at that future time, in the best interests of [the child].
General principles
The general principles governing an application for an extension of time in which to appeal were summarised as follows in Simonsen v Legge:[9]
[9] Simonsen v Legge [2010] WASCA 238 [8].
The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include the following:
(a)on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted;
(b)the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties;
(c)nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion;
(d)there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:
(i)the length of the delay;
(ii)the reasons for the delay;
(iii)the prospects of the applicant succeeding in the appeal; and
(iv)the extent of any prejudice to the respondent;
(e)other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled;
(f)the length and reasons for the delay must be addressed by the applicant and the [required] cogency of the explanation increases as the period of the extension sought increases;
(g)in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors; and
(h)similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted.
(citations omitted)
Disposition
In our view, it was not in the interests of justice to grant the mother an extension of time to appeal against orders 2 and 3 of the February 2016 orders, having regard to the following matters.
First, the length of the delay in commencing the appeal is properly characterised as egregious. The mother requires an extension of almost 5 years from the date on which an appeal should have been instituted.
Secondly, there is no satisfactory explanation of the delay. Allowing for the fact that the mother was unrepresented for parts of that period, and has been under emotional and financial strain, an appeal should have been instituted years ago if it was to be pursued. Further, the mother's evidence indicates that she was aware of her right to appeal against the February 2016 orders and made a conscious decision not to do so. The fact that she may now regret that choice, or has received further legal advice as to the merits of an appeal, does not provide a good reason for an extension of time. As Wheeler JA (Steytler P and Pullin JA agreeing) noted in Willoughby v Clayton Utz:[10]
… If a party's fresh advice or change of mind were good reason to extend time, there would be little point in having time limits at all. In my view, the public interest in finality in litigation dictates that, in the absence of some disadvantage (such perhaps as an appellant being unrepresented and unaware of his rights), or other special or unusual circumstances (such as an advising solicitor making a simple, but important, mistake of fact, as can happen from time to time), it is not possible to regard a desire to act upon fresh advice as a justification for any significant extension of time.
[10] Willoughby v Clayton Utz [2007] WASCA 5 [8].
In the present case the mother has been represented in many of the Family Court proceedings, including in the 2016 hearing before Crisford J, in the 2019 hearing before O'Brien J, and in the 2021 appeal. She appreciated that she had a right of appeal, and has not deposed to having received any erroneous advice as to its exercise.
Thirdly, there appears to be little prospect of the appeal against orders 2 and 3 of the February 2016 orders succeeding. The mother does not seek to disturb the orders so far as they provide for the child to live with the father and for the father to have sole parental responsibility for the child. Rather, the challenge is to the 'final' status of those orders. It would appear that the mother contends that orders 2 and 3 ought to have been made subject to further order of the court. Given the history of the matter, the mother's submissions do not advance any cogent reason why it was not open to Crisford J, in the exercise of her Honour's judicial discretion, to make the orders on a final rather than an interim basis.
In any event, the mother's grounds and written submissions appear to proceed on a false premise as to the status of parenting orders. As this court explained in CDW v LVE,[11] parenting orders can never be final and incapable of change, and so are always interlocutory in nature. Orders 2 and 3 of the February 2016 orders do not prevent the mother approaching the Family Court for a change in parenting arrangements if such application is in the child's best interests and there are reasonable grounds for doing so.
[11] CDW v LVE [2015] WASCA 247; (2015) 54 Fam LR 297 [56] - [58].
In oral submissions, senior counsel for the mother accepted that this was one of the factors that creates difficulty for the mother in this appeal. He quite properly conceded that, in an appropriate case with a change of circumstances, orders determining parental responsibility, whether they be framed as interim or final orders, are capable of variation.[12]
[12] Appeal ts (19 April 2021) 4.
Fourthly, and arising from the interlocutory nature of parenting orders, the mother has not demonstrated any real (as opposed to asserted) prejudice which she or the child will suffer if an extension of time is not granted. The mother's concern that the mere status of orders 2 and 3 of the February 2016 orders will inevitably and unassailably constrain the Family Court at subsequent hearings is misplaced. The only relevant effect of the orders being final rather than interim parenting orders would seem to be that interim orders would engage s 70B of the Family Court Act 1997 (WA), which provides:
If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.
This does not, in an appropriate case, prevent the allocation of parental responsibility by final orders from being revisited.
In oral submissions, senior counsel for the mother did not, when asked, identify any particular prejudice, indicating that it was a question of perception and he could not put the matters higher that the mother puts it in her application and affidavit.[13]
[13] Appeal ts (19 April 2021) 5.
Fifthly, while observations relating to a successful litigant's 'vested right to retain the judgment' are generally inapt in cases involving parenting orders, there remains a public interest in the finality of litigation. The parties have acted on the basis of orders 2 and 3 of the February 2016 orders, which have provided some stability and certainty in the arrangements for the parental responsibility for the child since that time. The time for the mother to challenge those orders was at or about the time they were made, not nearly five years later. The public interest in the timely disposal of family law proceedings involving children counts against the grant of an extension of time of close to five years.
Sixthly, although there is no evidence of any specific prejudice to the father or child if an extension of time were granted, there is a general financial and emotional burden which would be associated with the reinvigoration of the primary proceedings.
Having regard to the combined effect of all of the above matters, we were not persuaded that it was in the interests of justice to extend the time for the mother to appeal against orders 2 and 3 of the February 2016 orders. The application for an extension to time to appeal was dismissed. Consequently the appeal itself was dismissed.
CACV 23 of 2019: Application to extend the time for compliance with a springing order
We turn next to deal with the question of whether the mother should have had an extension of time for compliance with the springing order made in CACV 23 of 2019. That is the appeal against the January 2019 orders.
Procedural history in this court
The appeal notice in CACV 23 of 2019 was filed on 12 February 2019. On 28 May 2019, Mitchell JA extended the time for the mother to file and serve an appellant's case to 4.00 pm on 18 June 2019 and ordered that the appeal is dismissed unless an appellant's case was filed by that time. No appellant's case was filed by that time and, on 19 June 2019, a certificate of conclusion of civil appeal was issued by the registrar.
The application for an extension of the time in which to comply with the springing order was filed on 3 February 2021 (1 year and 7 months after the springing order 'sprung'). On 5 February 2021, Mitchell JA made programming orders for the hearing of that application, the first of which required the mother to file submissions and any further affidavits. The matter was called on for a hearing when the mother did not comply with that order. Revised programming orders were made on 19 February 2021. Those have been complied with, although the mother did not take up the opportunity to file responsive submissions or affidavits by 19 March 2021. The extension application was listed for a hearing on 25 March 2021.
On 19 March 2021, the mother filed an application for an order vacating the hearing listed for 25 March 2021, essentially on the ground that her previous senior counsel had ceased to act for her and that her recently engaged counsel sought additional time to prepare for the hearing and address perceived deficiencies in the draft appellant's case. The court granted that application, and relisted the matter for hearing on 19 April 2021. By order 3 of the orders made on 22 March 2021, the court directed that the mother file and serve an affidavit annexing a revised draft appellant's case, and supplementary written submissions, by 4.00 pm on 1 April 2021. The father was given leave to file and serve supplementary written submissions by 4.00 pm on 14 April 2021.
On 1 April 2021, the mother applied for an extension of the time for complying with order 3 of the orders made on 22 March 2021. The extension was sought on the basis that she had, on 31 March 2021, engaged new senior counsel who required additional time to prepare the documents. An extension was granted to 6 April 2021, with an extension for the father's responsive submissions being granted to 16 April 2021.
Mother's evidence and submissions
The mother affirmed an affidavit on 3 February 2021 in support of her application for an extension of time. The mother deposes that she did not comply with the springing order because, in essence, she was self-represented at the time and had difficulty in knowing what to do and how to do it, and because her attention was diverted by other proceedings in the Family Court at that time (some of which are described above).[14] She explains the delay by reference (in general terms) to the emotional impact which the family law dispute had on her, the fact that she was unrepresented in the appeal proceedings for a time, and certain other personal matters.[15]
[14] Mother's affidavit affirmed in CACV 23 of 2019 on 3 February 2021, par 27 - 42.
[15] Mother's affidavit affirmed in CACV 23 of 2019 on 3 February 2021, par 43 - 61.
The mother deposes that in the 'quiet times' of COVID she began to consider how events had unfolded. Towards the end of 2020, she was concerned at the way events overall had compromised what she perceived to be the child's interests in having a determination as to the extent to which it was in the child's best interests to spend time with both of her parents. She said that she realised that she needed to engage one set of lawyers 'to try and work out whether anything could now be done'.[16] She engaged solicitors on or about 22 September 2020, who engaged senior counsel who it was intended would conduct a full review of the matter. However, counsel engaged was not available on the date on which the hearing of appeals CACV 109 of 2019 and CACV 146 of 2019 were listed. The mother engaged alternative senior counsel on 6 November 2020 and junior counsel on 30 November 2020. She describes the time it took new counsel to familiarise themselves with the matter.[17]
[16] Mother's affidavit affirmed in CACV 23 of 2019 on 3 February 2021, par 62 - 64.
[17] Mother's affidavit affirmed in CACV 23 of 2019 on 3 February 2021, par 65 - 74.
The mother reiterates the above matters in her affidavit filed on 6 April 2021, which also attaches a revised draft appellant's case which she proposes to file if an extension of time is granted.
General principles
The principles governing the determination of an application to extend time for compliance with a springing order were summarised by this court in A v C [No 2],[18] in the following terms:
[18] A v C [No 2] [2015] WASCA 199 [2] - [4].
It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity …
There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non-compliance with the springing order;
(3)the prejudice to the defaulting party if the time were not extended; and
(4)the prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court[.]
(citations omitted)
Disposition
In our view, the following matters in combination counted conclusively against the grant of an extension of time for compliance with the springing order.
First, the mother waited 1 year and 7 months after the springing order had 'sprung' before making the extension application, and her affidavit does not adequately explain that delay. While we can understand that she was under various stresses, she appreciated that the springing order had been made and that she had not complied with it. It was incumbent on the mother, if she intended to pursue the appeal in CACV 23 of 2019, to promptly take steps to seek an extension of time to comply with the springing order, and to engage legal assistance if that was required. She does not depose that she was unable to afford any legal assistance. She was actively engaged in litigation in this court and the Family Court in this period, often with legal representation.
Secondly, the January 2019 orders which the mother seeks to impugn in this appeal have been overtaken by later events. As noted above, those orders provided for the child to spend time with the mother, generally from Friday to Sunday or Wednesday to Friday on alternate weeks. The orders continued the earlier interim orders made in relation to that matter by the February 2016 orders. However, the impugned January 2019 contact orders were suspended by the August 2019 orders, which provide for supervised contact once a week. The August 2019 orders continue to operate until varied. If and when the August 2019 orders are varied or discharged, it will be necessary for the Family Court to consider what orders for the child to spend time with the mother are in the child's best interests at that future time.
The father has recently commenced proceedings in the Family Court seeking the discharge of order 1 of the January 2019 orders and for the court to determine what time, if any, the child should spend with the mother. Given that application by the father, he could not reasonably contend that circumstances have not changed sufficiently to justify revisiting the question of the time the child spends with the mother.[19] An appeal against the January 2019 orders lacks utility in these circumstances, where those orders have not operated since August 2019, and the question of what time the child will spend with the mother is to be revisited in the ongoing proceedings in the Family Court.
[19] See In the marriage of Rice and Asplund (1978) 6 Fam LR 570.
In oral submissions, senior counsel for the mother conceded that the question of the utility of the appeal was a 'substantial hill that one needs to ascend and get over the top of' which presented a difficulty for the mother's application.[20]
[20] Appeal ts (19 April 2021) 8 - 9.
Thirdly, for the reasons just explained, there is no real (as opposed to asserted) prejudice to the mother if an extension of time is not granted. As senior counsel for the mother conceded, the Family Court will need to consider what regime is now in the child's best interests in determining either the proceedings in which the August 2019 orders were made or the 2021 FCWA proceedings. In oral submissions senior counsel for the appellant conceded that if his client succeeded in the appeal, nothing would change.[21]
[21] Appeal ts (19 April 2021) 9.
Fourthly, there is the general prejudice to the father and child from the reinvigoration of the proceedings, discussed at [39] above.
Fifthly, there does not seem to us to be any reasonable prospect that the grounds of appeal which the mother now seeks to advance will result in any order of this court having a practical effect.
Grounds 1 and 2 complain of the trial judge's failure to properly apply s 70A and s 70B of the Family Court Act, or to give adequate reasons for finding that the presumption in s 70A(1), that it is in the best interests of a child for the child's parents to have equal shared responsibility for the child, was rebutted. The mother's argument on these grounds ignores the effect of the February 2016 orders providing for the father to have sole parental responsibility and the fact that in January 2019 O'Brien J was not dealing with the subject of those orders.
Grounds 4 and 5, while in terms alleging errors of law, in substance concern the weight which O'Brien J gave to certain evidence and challenge the merits of the primary decision.
Ground 6 challenges O'Brien J's adoption of the factual findings made in Crisford J's reasons for making the February 2016 orders. There is no merit to that ground. Section 202L(3)(b) of the Family Court Act permitted the court to do so. In the hearing before O'Brien J counsel for the mother, while noting that the mother did not accept all of Crisford J's findings, accepted that O'Brien J could adopt those findings for the purposes of dealing with the matters before him.[22]
[22] Primary ts (26 June 2018) 6 - 7.
We are not persuaded that any of the above grounds have any reasonable prospect of succeeding.
Ground 3, which challenges the making of order 4 of the January 2019 orders (which was in the terms of order 7 of the February 2016 orders quoted at [4] above), is in a different category. The ground contends that the judge erred in law in making an order which permits the exercise of a judicial power to suspend an order of the court by a person other than an officer of the court. We note that the construction of the order now advanced by the mother is inconsistent with her submissions made in the appeals the subject of the February 2021 decision.[23] However, the construction of the order now advanced by the mother appears to us to be reasonably open on its terms. We are not currently persuaded that there is no reasonable prospect that the court might ultimately conclude that the Family Court erred in making an order in these terms.
[23] February 2021 decision [92].
However, as noted above, senior counsel for the mother accepted that setting aside order 4 of the January 2019 orders would have no practical effect on the time the child spent with the mother. The only basis on which he suggested possible prejudice was, in effect, that the Family Court was less likely to make the same order in the future if the appeal was allowed. However, counsel conceded that it would be open to the mother to advance submissions in future proceedings in the Family Court that this was not the appropriate course.[24] Further, if an order in those terms was made in the future, the mother could appeal against the order at that time, when the issue was not hypothetical.
[24] Appeal ts (19 April 2021) 9.
Having regard to the above matters, we were not persuaded that it was in the interests of justice to extend the time for compliance with the springing order.
CACV 9 of 2021: Prospects of success of the appeal against the recusal decision
We turn next to deal with the question of whether any of the grounds in appeal CACV 9 of 2021 had any reasonable prospect of succeeding. Those grounds concern the decision of O'Brien J to refuse to recuse himself from the hearing of the matters. The mother had contended that credibility findings which the judge made in previous judgments in the litigation concerning the child gave rise to a reasonable apprehension of bias.
General principles
Reasonable apprehension of bias will be established if a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. In applying this principle, it is necessary to identify what is said might lead a judge to decide a case other than on its legal or factual merits, and to articulate a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.[25] The test is objective and the fair‑minded observer is someone who is aware that the person who is being observed is a professional judge whose training, tradition and oath or affirmation require him or her to discard the irrelevant, the immaterial and the prejudicial.[26] Reasonable apprehension of bias can arise where a fair‑minded lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or has come to a clear view about the credit of a witness, may not be prepared to depart from that view in a subsequent case.[27]
Family Court proceedings
[25] See Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [6], [8]; Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [53] ‑ [60].
[26] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11] - [12].
[27] See British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283[139]; Livesey v NSW Bar Association (1983) 151 CLR 288.
In his written reasons, O'Brien J referred to the history of the litigation and to the general principles governing a recusal application in orthodox terms. His Honour noted the passages of his previous reasons which were said to give rise to a reasonable apprehension of bias, including the following paragraph [51] from his judgment published on 20 August 2019:[28]
Notwithstanding the denials of the mother, and acknowledging that the evidence has not been tested, I conclude against the background of not only the evidence specifically referred to above but also the findings made in the previous judgments adopted, that it is probable that [the child's] behaviour after the making of the primary orders and prior to the suspension of time was encouraged either directly or tacitly by the mother.
[28] AK v V [2019] FCWA 184 [51].
This comment was made in a context where O'Brien J was determining applications arising from the suspension of the child's time spent with the mother following alleged breaches by the mother of the January 2019 orders. His Honour resolved those applications on the findings contained in earlier judgments and competing affidavits filed by the parties in the new proceedings,[29] without any cross-examination of the witnesses. Before making the impugned comment in paragraph [51], his Honour had observed:[30]
I am acutely aware that the circumspection with which findings on an interim hearing must be couched is well-established, and remains 'no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence'. That said, in interim proceedings the court is frequently required to 'weigh the probabilities of [the] competing claims and the likely impact on [the] children in the event that a controversial assertion [was] acted upon or rejected'. Evidence may not simply be 'disregarded' merely because facts are in dispute, leaving the interim determination to be made 'solely by reference to the agreed facts'.
(citations omitted)
[29] AK v V [2019] FCWA 184 [21] - [23].
[30] AK v V [2019] FCWA 184 [49].
In his recusal reasons, O'Brien J dealt with the effect of paragraph [51] of his judgment published on 20 August 2019 as follows:[31]
It must first be borne in mind that the judgment in question determined an application in a case for resumption of the mother's time with [the child], in circumstances where that time had been suspended by the father in the circumstances set out in detail in the judgment. Interim orders only were made, expressly in anticipation that those orders might be revisited at the further interim hearing listed for 5 November 2019. Orders for the provision of an updated report from [the child's] therapist were made, as were orders requiring the parties to thereafter personally confer to consider what therapeutic options (if any) should be pursued in [the child's] best interests.
The interim orders were made, commonly with interim orders in almost all parenting proceedings, with an eye to the circumspection with which findings on an interim hearing must be couched, albeit that in such proceedings the court is frequently required to 'weigh the probabilities of [the] competing claims and the likely impact on [the] children in the event that a controversial assertion [was] acted upon or rejected'. Evidence may not simply be 'disregarded' merely because facts are in dispute, leaving the interim determination to be made 'solely by reference to the agreed facts'. Against that background, and noting both the orders actually made and the adjournment to a further hearing on 5 November 2019, properly understood the first of the paragraphs quoted above is incapable of supporting a reasonable apprehension of bias. That is particularly so as the purpose of the November listing was to permit the matter to be monitored, and afford an opportunity for further interim argument; the mother, as she was entitled to do, sought to appeal the August 2019 orders and did not pursue further argument in November.
(citations omitted)
[31] AK v V [2021] FCWA 10 [32] - [33].
O'Brien J concluded that no reasonable apprehension of bias arose from [51] or the other paragraphs of his Honour's earlier reasons on which the mother relied. O'Brien J said that it was not necessary to determine whether there had been a waiver of any apprehended bias. However, if it were necessary to determine the point, his Honour would have concluded that there had been a waiver when the proceedings continued to a number of subsequent hearings, when the mother was represented and raised no objection to the judge hearing the proceedings.[32]
Grounds of appeal
[32] AK v V [2021] FCWA 10 [38] - [42].
The mother's grounds of appeal against the recusal decision are in the following terms:
1. His Honour erred in fact or at law in finding that the comments made by him at paragraph 51 of His Honour's Judgment of 20 August 2019 did not comprise a credibility finding where that finding was not available to him on the evidence.
2. His Honour erred in fact or at law in finding that the Appellant failed to articulate a logical connection between the identified thing and the feared deviation from deciding the case on its merits where that finding was not available to him on the evidence.
3. His Honour erred in fact or at law in finding that the Appellant had waived her right to take objection to His Honour continuing to hear proceedings in respect to all matters raised.
The written submissions in support of the grounds make it clear that both grounds 1 and 2 relate to the findings in [51] of the reasons of 20 August 2019.
Disposition
In assessing the merits of the appeal in CACV 9 of 2021, it was necessary to have regard to the February 2021 decision and the way this court dealt with a ground of appeal asserting reasonable apprehension of bias. Ground 2 in the February 2021 appeal contended that O'Brien J erred in law in failing to recuse himself because he had previously made findings of credit adverse to the mother in the proceedings.
In dealing with a challenge to the factual finding made in [51] of the reasons of 20 August 2019, the court observed:[33]
… His Honour's finding at [51] of the Primary Decision is not to the effect that the mother's evidence should be disbelieved. His Honour made no findings as to credit. His Honour said, in effect, that he was 'acutely aware' that circumspection was required given that the evidence was not fully tested. The finding at [51] was not in the nature of a final and conclusive finding of fact that the mother had breached the injunctive orders or had lied on oath and thereby committed perjury. Rather, the finding at [51] of the Primary Decision reflected his Honour 'weigh[ing] the probabilities of competing claims and the likely impact on [the child]' in accordance with the principles in [Eaby & Speelman [2015] FamCAFC 104 [18] - [19]]. Although not in terms, in substance it was a finding to the effect that his Honour accepted, in weighing the interests of the child in the context of considering interim orders, that there was a real probability that the mother, during unsupervised contact, had encouraged in the child a state of disquiet with and resistance to the court's orders of 22 January 2019, thereby contributing to the child's deteriorating behaviour.
[33] February 2021 decision [144].
The court then disposed of ground 2 in the following terms:[34]
There was no credit finding in [51] (or elsewhere) of the Primary Decision adverse to the mother for the reasons given in relation to ground 1 above.
Further and in any event, the mother made no application to O'Brien J to recuse himself at the hearing. She is accordingly to be taken to have waived the point. (citations omitted)
[34] February 2021 decision [149] - [150].
In oral submissions, senior counsel for the mother conceded that, short of an application for special leave to appeal and a successful appeal to the High Court of Australia following a grant of special leave, this court's determination in the February 2021 decision must carry the day. While faintly putting a contrary argument, he accepted that the February 2021 decision provides a 'substantial and, perhaps, insurmountable bar to the position [the mother] would wish to adopt with respect to the appeal'.[35]
[35] Appeal ts (19 April 2021) 11 - 12.
In light of this court's findings in the February 2021 decision, there is no arguable basis for the mother to contend that paragraph [51] of the reasons of 20 August 2019 gave rise to a reasonable apprehension of bias. The court's determination of that question is binding on the parties and, in our view, is in any event plainly correct. Once that issue is determined against the mother, ground 1 must fail.
Once ground 1 fails, the other grounds of appeal cannot lead to the appeal being allowed. Ground 2 must fail as it too turns on the proposition that paragraph [51] was a credit finding. It is unnecessary to determine the issue of waiver raised by ground 3 in the present case. O'Brien J did not finally determine that issue, which would only arise if a reasonable apprehension of bias were established.
We therefore dismissed the appeal in CACV 9 of 2021 on the basis that the grounds of appeal had no reasonable prospect of succeeding.
Other applications
It followed from the above conclusions that it was unnecessary to deal with the other applications in the appeals. The parties agreed that those applications should be dismissed on the basis that they had been rendered redundant by the orders refusing the extension applications and dismissing the appeals.[36]
[36] Appeal ts (19 April 2021) 13.
Costs
The following are our reasons for making the costs orders referred to at [19] above.
General principles
The father's applications for costs may be dealt with on the assumption that the exercise of this court's discretion to order costs in these appeals is relevantly regulated by s 237(1) - (3) of the Family Court Act,[37] which provides:
[37] See CDW v LVE [2015] WASCA 247 (S) [4]; MIB v JAP [2019] WASCA 175 (S) [1].
(1)Subject to subsection (2) and sections 205SB and 242, each party to proceedings under this Act is to bear the party's own costs.
(2)If, in proceedings under this Act, the court hearing the proceedings is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (3), (5), (6A) and (6) and in accordance with any relevant rules, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just.
(3)In considering what order (if any) should be made under subsection (2), a court must have regard to -
(a)the financial circumstances of each of the parties to the proceedings; and
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party; and
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters; and
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court; and
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings; and
(f)whether a party to the proceedings has made an offer in writing to another party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
It has been recognised that, while costs do not 'follow the event' any more on an appeal than they do in any other proceedings, a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the 'fruits of their judgment', can be of great significance.[38]
CACV 23 of 2019
[38] T v S [2015] WASCA 225[14]; MIB [6].
There was limited material before the court as to the parties' financial circumstances. The mother deposed that at all material times she was self-represented in this appeal because she was unable to afford legal representation in the Court of Appeal at that time.[39] She deposes:[40]
In order to pay for the cost of legal representation since 2010, I have employed such resources as I have had, and I have had to prevail on my family, and to some extent friends, to pay costs. In any event, there have been various times during the course of the proceedings where I have not been able to afford to have legal representation either for a considerable part of the proceedings generally or in relation to aspects of the proceedings, and at those times I have attempted to represent myself.
[39] Mother's affidavit affirmed in CACV 23 of 2019 on 6 April 2021, par 27.
[40] Mother's affidavit affirmed in CACV 23 of 2019 on 6 April 2021, par 28.
At the hearing, the mother sought an opportunity to file further evidence as to her financial position.[41] We refused that oral application, and indicated that we would deal with the application on the assumption that the mother's financial position was no better than indicated in her affidavit. We did so because:
(1)the father's written submissions anticipated the application for costs and the mother should reasonably have put that material before the court at the hearing;
(2)an adjournment would put the parties to further expense in the proceedings;
(3)even on the assumption that the mother was impecunious (which would be a generous assumption given that she was represented by senior and junior counsel and an instructing solicitor at the hearing), other factors would still make a costs order appropriate; and
(4)it was therefore not in the interests of justice to put the parties to the further expense of adducing additional evidence which would not be likely to affect the outcome.
[41] Appeal ts (19 April 2021) 20 - 21.
It is significant that the extension application was necessitated by the mother's repeated failure to comply with orders of this court, which led to the making of the springing order which was in turn breached. The father had been wholly successful in opposing the extension application, which in our view was not reasonably arguable. The father's legal costs have been unnecessarily increased by the fact that the mother advanced and then abandoned a draft appellant's case to which the father responded. The parties are not in receipt of legal aid, and there is no evidence of any offer being made to settle the proceedings.
In these circumstances, the justice of the case made it appropriate to order that the mother pay the father's costs of the application for an extension of time, including the costs of responding to draft appellant's cases, to be assessed if not agreed.
CACV 2 of 2021
The application for an extension of time was required by reason of the mother's failure to comply with the rules requiring the appeal to be commenced within 21 days of the primary decision. In our view, the application for an extension of time of almost 5 years had no reasonable prospect of succeeding and indeed should be characterised as hopeless. The application should not have been brought in as much as the mother, properly advised, should have known that to be the position. Having regard to the complete lack of merit in the extension application, as well as the financial position of the mother, the absence of legal aid funding and the absence of any relevant offers, the justice of the case made it appropriate to order that the mother pay the father's costs of the application for an extension of time, to be assessed if not agreed.
CACV 9 of 2021
This appeal was instituted on 8 February 2021. The February 2021 decision was not delivered until 25 February 2021. The appellant's case in this appeal was filed on 15 March 2021. While it was not necessarily unreasonable for the appellant to commence the appeal in CACV 9 of 2021 prior to the delivery of the February 2021 decision, it was unreasonable to continue to prosecute the appeal after that decision was delivered (including by filing an appellant's case).
The father reasonably engaged senior counsel who was familiar with the case to prepare submissions in response, which were relied on at the hearing of the registrar's show cause notice. In the circumstances, the justice of the case made it appropriate to order that the mother pay the father's costs of the appeal incurred in responding to the appellant's case and attending the hearing of the registrar's show cause notice.
Given the costs reasonably incurred by the father involved the preparation of a three page submission by counsel who was very familiar with the case, and attendance at the hearing, we considered it appropriate to fix costs. We fixed the amount of the father's costs of the appeal in the amount of $1,800, which seemed to us to be a reasonable amount in all the circumstances.
Orders
For the above reasons we made the orders set out at [19] above on 19 April 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell
29 APRIL 2021
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