Arndale and Kingley
[2010] FamCAFC 175
•10 September 2010
FAMILY COURT OF AUSTRALIA
| ARNDALE & KINGLEY | [2010] FamCAFC 175 |
| FAMILY LAW - APPEAL – PARENTING – Application for an extension of time to appeal two interim decisions – Leave opposed by the father and the Independent Children’s Lawyer – Little explanation provided as to the delay – Where the judge did not disqualify himself –Where there is no order to appeal – No real merit in the grounds of appeal – Where there would be prejudice to the father should leave be granted due to delay of the trial – Child currently lives with the mother and is not spending time with the father – Where the family report recommends that the child live with the father– Application dismissed. FAMILY LAW - COSTS – Parties are at liberty to file written submissions with regard to the costs of the application. |
| Family Law Act 1975 (Cth) |
| Clivery & Conway [2010] FamCA 1435 Reisner& Reisner [2010] FamCA 473 Rice & Asplund [1979] FLC 90-725 SPS & PLS [2008] FamCAFC 16 |
| APPELLANT: | Ms Arndale |
| RESPONDENT: | Mr Kingley |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 1363 | of | 2008 |
| APPEAL NUMBER: | NA | 82 | of | 2010 |
| DATE DELIVERED: | 10 September 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 2 September 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 December 2009 |
| LOWER COURT MNC: | [2009] FamCA 1122 [2009] FamCA 1219 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Baston |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Smith & Associates Solicitors | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Brasch | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The application for leave to appeal out of time is dismissed.
The parties are at liberty to file written submissions with regard to the costs of the application in accordance with the following timetable:
(a) On behalf of the applicant within 21 days of the date hereof;
(b)On behalf of the respondent and the Independent Children’s Lawyer within 21 days thereafter;
(c)On behalf of the applicant in reply within seven days thereafter, and;
(d)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment under the pseudonym Arndale & Kingley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 82 of 2010
File Number: BRC 1363 of 2008
| Ms Arndale |
Appellant
And
| Mr Kingley |
Respondent
REASONS FOR JUDGMENT
In an application filed 19 July 2010, the mother seeks leave out of time to appeal two interim decisions. It is necessary in this case to set out at some length the history of the matter and refer to parts of the evidence.
History
The proceedings between the parties concerns parenting orders for the child C born December 2006.
The matter has been managed as part of the Child Responsive Program, the features in this case being that a Family Consultant was appointed early in the proceedings to interview the parents and a single judge was assigned to manage the case including making interim orders and also to hear the trial. The judge was Barry J.
An Independent Children’s Lawyer was also appointed by the court. At a directions hearing on 28 July 2009 various orders were made, including that the matter was listed for what is described as the first day of trial before Barry J on 30 October 2009. The procedure was in accordance with rule 16.08 of the Family Law Rules 2004.
Mr P is the Family Consultant in this case. He prepared a Child and Parent Issues Assessment dated 7 September 2009 (“the first report”). Mr P had the benefit of a psychiatric report about both parents dated 18 September 2008 from Dr W. Mr P’s report revealed that at the time of the first report C was living with her mother and three older half siblings. The order dated 28 July 2009 allowed the father to spend four hours each week with C at the O Contact Centre.
It seems that there has been a long history of litigation in this matter, commencing in March 2008 in the Federal Magistrates Court. In the father’s application filed in February 2008 he was asking that the child live with the mother and that the child have “graduated contact” with him. It can be seen that he was seeking initial supervised time graduating to the child living with him four nights per fortnight.
The mother’s proposal was that the child spend two hours twice per week with the father supervised by a “qualified person” or at a contact centre. Particular concerns that the mother identified were the father’s alcohol and anger problems. In summary, Mr P said in the first report:
Summary
·This assessment provides initial expert advice to the family and the Court about [C’s] needs at this point. The parties present with undeniable histories that when coupled with evidence that their relationship was (and continues to be) characterised by dysfunction and strong conflict, immediately cause me to hold significant reservations about their capacity to effectively co-parent. It is apparent from the Court material than any agreement between the parties is short lived and there are worrying signs that the parties are fast developing a pattern whereby they rely entirely on litigation as a way of solving their inter-parental problems.
·The father’s apparent chronic alcohol misuse evidenced by multiple drink driving offences resulting in a term of imprisonment looms large as an issue to be considered by the Court. …
·In the case of the mother I believe the Court requires further information about her actual willingness and capacity to promote and facilitate [C's] relationship with her father. …
Under the heading Future Directions, Mr P suggested that there be an updated psychiatric assessment of both parties and that there needed to be a consideration of the actual nature of the father’s alcohol dependency. It was also suggested that the court would be assisted by a family report.
As mentioned, the first occasion on which Barry J made orders was on 30 October 2009. The relevant orders on that occasion provided:
9. All previous Orders be discharged.
10.The child, [C] born … December 2006, live with the Mother.
Father’s Supervised Time with the Child
11.In the event the Mother declines to make the necessary arrangements for the child to be delivered to and collected from the [O] Contact Centre (the Mother being prohibited from attending such Centre), then the Independent Children’s Lawyer is authorised to select such other contact centre in the … Queensland area as may be able to provide time for the Father to see the child on a weekly basis and the parties are required to attend such contact centre on the same terms and conditions as provided for in these Orders for the [O] Contact Centre save that the Father is not required to contribute to the Mother’s travel costs and paragraphs 21 to 25 are not to apply.
12.The child shall spend time with the Father at the [O] Children's Contact Centre or such other contact centre as may be nominated by the Independent Children’s Lawyer pursuant to paragraph 11 hereof (“the Centre”) as follows:
a.for three (3) hours once in each week at times nominated by the Centre, with an additional visit to occur on Father’s Day, the child’s birthday and Christmas Day, or as close as possible to those days as the Centre can facilitate, subject to paragraphs 16 to 20 below.
…
15. Both parties:
a.comply with any appointments made by the Centre for supervised time;
b.comply with all reasonable rules of the Centre and comply with all reasonable requests or directions of the staff of the Centre;
c.will not take any other person to the Centre, other than as provided for in paragraphs 21 and 27 hereof;
d.will not serve or arrange for service of documents on the other party at or in the vicinity of the Centre and/or at or about the time the parties attend the Centre;
e.will not discuss any matter which is the subject of, or relates to, Family Law proceedings whether past, present or future with the Centre staff in the presence or vicinity of the child;
f.will not criticise, denigrate, demean or ridicule each other or any member of the person’s family or household to the Centre staff or in the presence of the child; and
g.will not photograph or video tape the other party or allow their associates or agents to do so.
…
17.The parties will ensure that they do all acts and things necessary to ensure that the child spends time with her Father in accordance with the schedule.
18.The parties negotiate any changes to the schedule which are necessary through their legal representatives and the Independent Children’s Lawyer will advise the Centre of any changes to be made.
19.The parties are only to contact the staff of the Centre if a visit needs to be cancelled with such contact to be by email or in the event of an emergency by telephone.
…
In the event the Father’s time with the child is to be spent at the [O] Contact Centre then paragraphs 21 to 25 are to specifically apply.
21.The Mother shall arrange for someone to deliver the child to the Centre in sufficient time before the commencement of the Father’s time with the child and use her best endeavours to ensure that that person removes himself or herself from the Centre and its vicinity as soon as the handover occurs, and that he or she promptly leave the Centre and its vicinity at the conclusion of the Father’s time.
22.The Father use his best endeavours to ensure that whoever delivers him to the Centre promptly leaves the Centre and its vicinity and only returns at the conclusion of the Father’s time.
23. The Mother will not be present at the Centre at any time.
24.The Mother’s representative will not use the [R Street] Entrance to the Centre.
25.The Father will not be at the Front Entrance to the Centre at any time.
26.The Father is to pay all costs associated with any attendance at the Centre as may be required by the Centre including any costs nominally payable by the Mother.
27.Subject to the requirements of the Centre the Father be accompanied by no more than two (2) additional people whilst spending time with the child each scheduled visit to include the child's paternal grandparents and their respective partners, the Father’s partner, paternal aunt and her partner and the child's cousins [J], [H] and[A].
28.Each parent provide to the other party and the Centre no less than twenty-four (24) hours notice of non-attendance for any planned visit to the Centre together with a detailed explanation for such non-attendance.
29.The Father’s time may be spent off-site if deemed appropriate by the staff of the Centre supervising the Father’s time.
30.If during the currency of these Orders the parties and the Independent Children’s Lawyer agree in writing to vary these Orders the parties have leave to list the proceedings in Chambers for consent orders to be made. (original emphasis)
At this point it is significant to note that there were orders made on 3 December 2009 by Barry J which superseded these orders. The notice of appeal did seek to appeal both the orders of 30 October and 3 December 2009, there being some apprehension that should the orders of 3 December be discharged then the 30 October 2009 orders could be revived.
The orders made on 3 December 2009 in summary provided that:
1.The Father spend time with the child supervised by the paternal grandmother at the house of his mother.
2.The terms included:
a.from 9.00 am on Saturday 19 December 2009 until 4.00 pm on Sunday 20 December 2009;
b.from 9.00 am on Friday 25 December 2009 until 4.00 pm on
27 December 2009;c.from 9.00 am on Saturday 2 January 2010 until 4.00 pm on Monday 4 January 2010;
d.from 9.00 am on Saturday 16 January 2010 until 4.00 pm on Monday 18 January 2010;
e.thereafter each alternate weekend commencing Saturday 6 February 2010 from 9.00 am on the Saturday until 4.00 pm on the Sunday.
3.The Mother and Father were not to be present at handovers. As from 19 December 2009 handover was to be at such place as nominated by the legal representatives of the parties, in the event of no agreement then the N Police Station or the P Police Station as determined by the Independent Children’s Lawyer
4.In the event that there was any breach of the undertaking by the Father not to consume alcohol the paternal grandmother was to forthwith make arrangements to return the child to the Mother’s residence and she was to notify the Independent Children’s Lawyer in writing.
The matter was adjourned to 28 May 2010 for further hearing before Barry J.
Although it was expected by all parties that the matter would return before Barry J, instead the matter was listed before Justice O’Reilly on 12 May 2010. At the outset the judge explained that she had listed the matter that morning to release the family report prepared by Mr P. This report is attached to an affidavit of Mr P sworn 30 April 2010 (“the second report”). None of the parties had seen the report prior to the judge mentioning the matter. As it is not necessary to deal with the report in great detail, I refer only to the recommendations of the family consultant contained in paragraph 76 of his report as follows:
I.That [C] live with her father.
II.That [C] initially spend time with her mother supervised at a contact centre.
III.That an opinion be sought from Dr [V] as to the mother’s ‘readiness’ to have the supervised condition relaxed.
IV.That [C] spend time with her half-siblings on a regular basis. Ideally this should take place other than at a contact centre if such an arrangement can be negotiated by the parties.
It can be seen immediately that this would have effected a complete alteration of the arrangements that had been in place for this young child.
The transcript on 12 May 2010 reveals that Justice O’Reilly very carefully explained to the parties her appreciation of the positions of each of them and the contents of the report. The judge clearly explained that although assistance is obtained from reports of family consultants, ultimately it is for the judge to decide what is in the child’s best interests. At page four of the transcript her Honour then said:
… The matter has been moved from Barry Js docket now to my docket, so I will be the trial judge.
Various discussions took place as to whether the parties were legally assisted and if the mother was making an allegation of sexual abuse against the father then certain documents needed to be filed. After a discussion about the length of time the matter has been waiting to be heard, counsel indicated that it was expected that Justice Barry would hear the matter commencing 28 May 2010. Justice O’Reilly said (Transcript p.16 l.46) “Unfortunately, he has disqualified himself …”. After submissions, O’Reilly J suggested that the lawyers write to the Registrar concerned with the matter seeking “priority” (Transcript p.17).
Ultimately on 12 May 2010, O’Reilly J made a number of orders including that Mr P prepare an updated family report for the trial.
I was informed that the current situation is that the trial will commence on a date to be fixed next year. Interim orders are in place which all agree are not functioning. It was common ground that despite these orders, the father is not having the time as ordered with the child. This is of particular concern of course to the father and in addition to the Independent Children’s Lawyer.
The mother filed an application on 30 June 2010. This application was mentioned before her Honour Justice O’Reilly and was amended by leave. The application is as follows:
1.That orders 4 to 11 (inclusive) made 3 December 2009 of Barry J be set aside or otherwise discharged.
2.That the father spend time supervised by the [O] contact Centre with the child [C].
3.That the parties forthwith present to Sullivan & Nicholaides [sic] collection centre … and submit to hair follicle testing.
4.That the Child and Parent Issues Assessment of 7 September 2009 and the Family Report of [Mr P] dated 30 April 2010 be removed from the file and all copies of such documents be recovered from any person to whom such documents have been provided.
5.That a family report be prepared by Ms [B], Clinical Psychologist and that the pariies [sic] and [C] [together with the mother’s other children] attend upon Ms [B] for the purposes of such report.
6.That Ms Dart be discharged as the ICL and that the Director, Legal Aid (Queensland) appoint an ICL other than Ms Dart.
The affidavit supporting this application referred to the transcripts of the proceedings before Barry J on 30 October 2009 and 3 December 2009, the transcript and reasons for decision of Barry J of 28 April 2010 in the matter of Reisner & Reisner [2010] FamCA 473 where his Honour disqualified himself and the transcript of the proceedings of 12 May 2010 before O’Reilly J and the order made by her Honour on that day. By reference to the matter of Reisner it was asked:
3.… In the interests of justice and procedural fairness I request that the Court make orders in the terms sought by me in my Application …
This application has not yet been dealt with by the court. It was listed before O’Reilly J on 27 August 2010 but due to the hospitalisation of the mother the matter could not proceed. The parties have been advised that the matter can be relisted before O’Reilly J by contacting the court.
In relation to expert reports, a comprehensive report about the parents from Dr V, a psychiatrist, was filed by the Independent Children’s lawyer on 30 March 2010.
The leave application
The mother’s application for leave was filed on 19 July 2010. In that application it was asked:
1.That the time for the filing of a Notice of Appeal against the Orders of Barry J made 30 October 2009 and 3 December 2009 be extended to 4 August 2010.
2.Such further or other order as the court may deem appropriate including an order as to costs.
It can be seen that the mother was some eight months out of time for the first order and six months out of time for the second. It hardly needs to be emphasised that these were orders made prior to the final hearing.
In the affidavit supporting this application, there was very little explanation about the delay and the proposed appeal. Reliance was placed on the transcript of the proceedings of 30 October and 3 December 2009, the transcript of the proceedings and order of O’Reilly J of 12 May 2010 and the transcript of proceedings and reasons for decision of Barry J, in the case known as Reisner. It was simply said by the applicant mother in the affidavit:
3.Following the hearing before Barry J on 3 December 2009 I was advised by counsel to appeal the decisions of 30 October and 3 December 2009. Following the father spending time with C as ordered on 3 December 2009 I was advised by counsel to apply to the court to discharge the orders of 3 December 2009.
4.To date I have not been given legal aid to make these applications. On 10 December 2009 my grant of legal aid was suspended. At this time I have aid for a solicitor to provide me with 2 hours advice.
5.On 8 July 2010 I received a copy of the transcript of proceedings in the matter now known as Reisner. I have been advised by counsel and believe that I have good prospects of success in respect of both my foreshadowed appeals.
An amended application in an appeal was filed by leave on the morning of the hearing before me on 2 September 2010. It was asked that the time to file a notice of appeal against the orders of Barry J made 3 October 2009 and 3 December 2009 and 7 May 2010 be extended. In addition, it was asked that the orders made by Barry J be stayed. Mr Baston of counsel, who appeared for the mother explained that it was appreciated that I could not stay the orders.
The father and the Independent Children’s Lawyer had been served on 26 July 2010 with a Notice to Admit Facts. The document annexed the transcripts to which I have already made reference, including Reisner. The questions addressed to the parties related to the apparent disqualification by Barry J without notice to the parties. It was asserted that:
5.It is the mother’s contention that not only should Barry J have disqualified himself but orders ought to have been made discharging any substantive and contentious orders or directions made by him during the course of the LAT.
6.In determining to disqualify himself, in the manner that he did, did [sic] Barry J denied the parties the opportunity to be heard, not only as to whether he ought disqualify himself but more importantly what other orders ought flow from any such decision.
I was informed that the Independent Children’s lawyer had responded that the facts were admitted to the extent of their information, knowledge and belief.
The proposed notice of appeal is attached to the affidavit to which I have made reference filed 19 July 2010. There are two grounds of appeal:
1. The trial judge failed to give adequate reasons for his decision.
2.There was no evidence to support and no proper basis to make an order discharging the existing supervision orders and making the order [sic] that were made.
It is proposed that a notice of appeal be filed in relation to each order however the grounds are the same. It is asked that the appeal be allowed and that the orders be discharged.
It seems that the grounds of appeal would be amended should leave be granted.
In Exhibit “A” to the Case Outline document filed on behalf of the applicant the following appears under the heading Proposed Grounds of Appeal:
AS TO THE ORDERS OF 7 MAY 2010:
1.The trial judge failed to give any reasons for his decision to disqualify himself.
2.The trial judge was obliged to give the parties an opportunity to be heard prior to making any determination to disqualify himself.
3.The trial judge ought to have:-
a.caused a formal order to issue and be provided to the parties;
b.provided the parties with reasons for his decision;
c.discharged any substantive or contentious orders made by him including that much of the orders of 30 October 2009, 3 December 2009 that have the effect providing for:-
i.the father to spend time with the child, [C] supervised by his mother, [BK];
ii.and the family consultant, Mr [P] to complete a family report and be involved in the further in this case.
d.provided the parties with an opportunity to be heard;
e.disclosed to the parties the nature and extent of any inappropriate out of court contact he had with the family consultant.
AS TO THE ORDERS 30 OCTOBER 2009 & 3 DECEMBER 2009:
4.The trial judge ought to have disclosed to the parties the nature and extent of any out of court contact he had with the family consultant consultant [sic] which may be regarded as inappropriate or contentious.
5.The trial judge ought to have disqualified himself from hearing this matter as a reasonable bystander could have concluded that:-
a.he may have pre-judged the merits of the parties competing applications; and
b.he may have had out of court contact with the family consultant which may be regarded as inappropriate or contentious.
6.The trial judge ought not to have made the orders that he did on 30 October 2009 for the mother not to deliver the child for the purpose of the father spending time with the child at a contact centre in the circumstances where the mother might not be able to secure the assistance of a suitable person to deliver the child to the contact centre.
7.In making the orders that he did on 30 October 2009 for the mother not to deliver the child for the purpose of the father spending time with the child at a contact centre the trial judge acted on the basis that this was a requirement of the [O] Contact Centre and that the mother was solely or predominantly responsible for this requirement when that conclusion was not open on the evidence.
8.In making the orders that he did on 3 December 2010 the trial judge ought not to have made orders that the father spend time with the child supervised by the paternal grandmother given that:-
a.There was no evidence that the father had successfully undertaken treatment for his alcohol dependence as recommended by Dr [W];
b.The trial judge's view that the paternal grandmother was an appropriate supervisor was not supported by the evidence;
c.There was no evidence that the mother had ever regarded the paternal grandmother as an appropriate supervisor;
d.That any such order was not supported by the ICL and/or family consultant; and
e.The nature of the allegations of the mother that the father had engaged in domestic violence, denigration, verbal abuse, and harassment of her since the parties had separated.
9.In making the orders that he did on 30 October and 3 December 2009 the trial judge was not entitled to act upon the Child and Parent's Issues Assessment of 7 September 2009 as this document was not a Family Report and was not sworn by the author.
10.In making the orders that he did on 3 December 2009 the trial judge failed to give adequate reasons for the orders that he made.
11.In making the orders that he did on 3 December 2009 the trial judge failed to have regard to the best interest's of the child and in particular the nature and extent of the allegations about the father in the mother's case and the nature of any risk to C if these allegations were made out at trial.
12.The only order open to the trial judge was to make an order that the child spend supervised time with the father at a contact centre.
The Mother’s Case
The major issues as expressed by the mother’s counsel underlying the leave to appeal application can be described as follows:
1.The possibility that the report writer could have in some way been influenced by Barry J or that some contact has taken place between them outside the confines of a court hearing with an adverse effect to the mother’s position;
2.That the interim order (which the mother regards and unworkable and not in the child’s best interests) remains in place and can only be varied by her persuading a judge that different orders ought be made.
3.Further, that in the absence of Barry J hearing the matter in court, the only remedy she has to seek that the orders be discharged is by an application to another judge for variation. It was submitted that this may expose the mother to a Rice & Asplund argument.
4.In addition, it is submitted that it was a denial of procedural fairness for the matter to be removed to another judge without notice when the trial had begun before Barry J.
The reference to an appeal from a determination on 7 May 2010 is that it is asserted that Barry J decided on that date to disqualify himself. No court order was made on that date in this matter. Contained in the bundle of documents attached to the Notice to Admit Facts filed on 26 July 2010 is a letter dated 7 May 2010 from the Brisbane Registry of the Family Court to the parties. The contents of the letter is as follows:
This matter has been listed before Justice O’Reilly for the release of the family report in the Hearing Judicial Duty List, on Wednesday, 12 May 2010 at 9.30am, court Room 10, Level 2, Commonwealth Law Courts, cnr North Quay and Tanks Street, BRISBANE.
All parties are required to appear in person at the above hearing.
(original emphasis)
It is clear that the mother would have asked that Barry J disqualify himself but also would have sought orders discharging any orders made during the course of the hearing. In paragraph seven of the written submissions in relation to this issue the following was submitted:
7. The application raises a number of issues:
a. The consequence of Barry J disqualifying himself;
b.Whether one of those consequences ought be the discharge of the orders of 30 October 2009 and 3 December 2009; and
c.Whether one of those consequences ought be the exclusion of Mr [P]’s [sic] from any further involvement on the case.
The additional significance of the so called disqualification is revealed in paragraph 13 of the submissions:
13.On 28 April 2010 Barry J disqualified himself in a matter now known as Reisner. As can be seen from the transcript of proceedings of 28 April 2010 the report writer in the Reisner matter is Mr [P]. Mr [P] is the Family Consultant in the subject proceedings. Mr [P] is an employee of the Family Court of Australia.
There then appears a part of transcript from the matter of Reisner before Barry J which led to his disqualification:
14.The transcript in Reisner contains at P-2 lines 14 to 23 the following:
"(Ms BRASCH:) "He asked", as in his Honour asked, ''you can tell by someone's reaction whether they're innocent." Mr [P] said he said, "I'm not judge." I further clarified with Mr [P] yesterday, on advice I must say from - I have taken advice on a course of conduct from relevant Queensland bar ethics counsellor - I clarified the matter with Mr [P] yesterday who further advised that he had gone to your Honour's chambers to discuss another matter. Your Honour said he like the report, as in the report respect of R. The context is - Mr [P] is unsure whether there was one or two discussions, or there may be, let me put it that way, there may be one or two discussions. He indicated yesterday he thought this discussion was in March, but may be that there was a discussion prior to the trial in October."
15.The connection between the conduct averted to above and the disqualification by Barry J from further involvement in these proceedings raises more questions than answers.
16.It is submitted that the only course open to the court faced with such a situation is to extend the time provided for lodging an appeal and to stay the orders sought to be appealed against. It is further submitted that public confidence in the court demands nothing short thereof. (footnote omitted, original emphasis)
In relation to the question of delay, it was submitted that the mother brought her application shortly after receiving a copy of the transcript of proceedings in Reisner. It is said that she received the transcript on 8 July 2010.
In my view whilst the question of the failure of his Honour to formally make orders discharging himself from the hearing of the trial is a consideration, it is also clear that there was no order from which there may be an appeal. To that extent the proposed grounds of appeal from the so called order of 7 May 2010 have no substance.
Apart from the significance of the actions of the original trial judge, Barry J, it is apparent that it is also being submitted that the orders made on 30 October and 3 December 2009 were not in the child’s best interests and that an appeal is likely to succeed against those orders.
I will deal with that matter immediately. Having read the reasons for judgment in relation to both those orders it cannot be seen, especially as they are not final orders that there was such an error in the discretion of the trial judge. Following the usual principles it is difficult to appreciate why those orders would be set aside. However, substantial reference was made by counsel for the applicant to the transcript in an endeavour to show that the trial judge had made some errors. If this be so, any misunderstanding about the position of the [O] Contact Centre in relation to the mother, and the relationship between the grandmother and the child can be properly considered in the mother’s application, yet unheard to which reference has been made and after evidence is filed by both parties in relation to those issues.
The response of the father and the Independent Children’s Lawyer
The submissions are similar. Both oppose leave being granted. Counsel for the Independent Children’s Lawyer and the father expressed considerable concern that the matter proceed to a hearing as soon as possible and emphasised the lack of utility in hearing an appeal. As was submitted by each of them, the only possible outcome of a successful appeal would be a re-hearing which can take place as a result of the mother’s application.
Leave out of time applications
In Clivery & Conway [2010] FamCA 1435 the well known principles referable to such leave applications was discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Explanation for the delay
In the mother’s affidavit filed 19 July 2010, she states that following the hearing before Justice Barry on 3 December 2009 she was advised by counsel to appeal the decision. She then explains that, to date she has not been granted funding from legal aid to make these applications, as her grant of legal aid was suspended on 10 December 2009. The mother has however, been provided with aid to receive two hours of advice from a solicitor.
The mother has managed to bring this application herself with the assistance of counsel who appears for her pro bono.
The mother could have filed a notice of appeal after each order was made upon being given the advice. However, the reality appears to be that it was the receipt of the transcript that has encouraged her. The transcript was received on 8 July 2010. The application was filed on 19 July 2010.
Although the delay is not insubstantial, on its own this would not be a reason to refuse the mother’s application.
Merits of the appeal
The central complaint is that by Barry J failing to come into court to disqualify himself, the applicant was deprived of the opportunity to seek various orders including that the orders made by him be set aside. The immediate difficulty about this ground of appeal is that there is no order from which to appeal. Section 94(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that an appeal lies to the Full Court from a decree of the Family Court. Decree is defined in s 4 of the Act as meaning:
"decree" means decree, judgment or order and includes:
(a) an order dismissing an application; or
(b) a refusal to make a decree or order.
In addition, there may have been a range of reasons why the judge did not continue with the case. It is understandable that the mother was concerned and drew the inference that this decision of the judge was in some way connected with the family report writer Mr P. It is unfortunate that the judge did not explain the reason in court. However, the mother may now seek to vary the orders and obtain a different report writer.
It should not be seen that there is some onus on the mother to demonstrate that there has been a change in circumstances. It is common ground that the orders have not succeeded in the father having time with the child. The applications need to be considered afresh. As Warnick J observed in SPS & PLS (2008) FamCAFC 16 at paragraph 48(iii) discussing the so called Rice & Asplund rule in the context of final orders that “[a]t whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the ‘best interests principle’.”
In relation to the appeal against the interim orders themselves, it must be observed that success in an appeal against interim orders is in itself extremely difficult. These orders are highly discretionary in their nature but also made in the context of relatively short hearings on abbreviated evidence. Although Mr Baston was able to demonstrate in his submissions a number of areas from the transcript of the hearing before the trial judge where there might be some complaint, the reading of the judgment and the orders themselves do not reveal grounds of appeal that are likely to result in the appeal being allowed and the orders being set aside.
Possible prejudice
If leave was given the appeal may not be heard and determined until next year. The likely effect is that the father will continue to have no time with the child. Mr Anderson, counsel for the father, said the father had not seen the child since March of this year.
The submission of the Independent Children’s Lawyer was that it is essential for the child that a trial take place as soon as possible. The court should take into account the best interests of the child.
Although the delay is unfortunate and partly unexplained, it is the prejudice to the husband in granting leave and the consequent substantial delay in the hearing should an appeal take place which are the outstanding features. This, coupled with the mother’s application which can give rise to similar remedies to the appeal process, leads to the conclusion that leave ought not to be granted.
Costs
It was agreed at the hearing of the leave application that in the circumstances of this case the arguments in relation to costs could not be heard until after a decision is given.
I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 10 September 2010
Associate:
Date: 10 September 2010
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