Beadle and Beadle - [2009] FamCAFC 74

FAMILY COURT OF AUSTRALIA

BEADLE & BEADLE

[2009] FamCAFC 74

FAMILY LAW – APPEAL – APPLICATION FOR EXTENSION OF TIME – Unexplained delay by applicant in filing application for extension for time – One year delay between hearing and issuing of reasons for judgment – Applicant was always at liberty to reopen the case prior to judgment – Case for extension of time weak – Continued suspension of the relationship between child and father must be assumed to be against the child’s best interests – Application for extension of time dismissed

APPELLANT:

Ms BEADLE

RESPONDENT:

Mr BEADLE

APPEAL NUMBER:

2009

FILE NUMBER:

BRC

781

2007

DATE DELIVERED:

30 April 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

30 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Dosanjh

SOLICITORS FOR THE APPLICANT:

Hartleys Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Martin

SOLICITORS FOR THE RESPONDENT:

Jai Reddy Solicitors

Orders

That the application of the mother filed 2 April 2009, for extension of time to file a Notice of Appeal against the orders of Wilson FM made on 8 December 2008, be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Beadle and Beadle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA28 of 2009
FILE NUMBER: BRC781 of 2007

Ms BEADLE

Applicant

And

Mr BEADLE

Respondent

REASONS FOR JUDGMENT

In December 2007 the parties, Mr and Ms Beadle, litigated over parenting arrangements for their child M, born in October 2005.
His Honour Wilson FM did not deliver a judgment until a year later, on 5 December 2008. The issues that had been before him included the question of what is commonly described as relocation of the mother and child. His Honour ordered that the mother do relocate, to within a radius of 20 kilometres of the father's residence, within 42 days of judgment.
The orders on their face are entitled to be regarded as correct until shown otherwise. Correctness involves the necessary implication that the orders are in the best interests of the child. The child is young, not yet four years of age. With young children every week that passes is, in a sense, a long time and in particular, if a relationship between a child and a parent is interrupted, that can have particular ramifications for a young child. The orders have not been stayed. It is common ground that the mother has not relocated. She seeks to appeal the orders, however, and on 2 April 2009 an application for an extension of time within which to appeal was filed with this Court and it is with that application that these reasons deal.
The matters commonly considered in relation to such applications include the explanation for any delay, any prejudice arising out of the delay and the prospects of the proposed appeal. As to the delay, there are some matters of puzzlement. Though, as I mentioned, the application was filed on 2 April 2009, it bears a date beside the signature of the mother, of 12 January 2009. Ms Dosanjh for the mother places some reliance upon that, because it is only a week or so after the expiry of the time within which the mother might have appealed as of right and, as is pointed out in the mother's material, the Christmas/New Year break had intervened.
If the explanation of delay was as simple as that, then it might be considered sufficient, although not delivered with very much clarity. However, it is not as simple as that, as a relevant delay, in my view, is also the period between 12 January and 2 April.
Paragraph 3 of Pt (d) in the application, which is described as comprising the orders that the applicant is seeking says:
"To extend the appeal period due to Christmas/New Year break, also due to doing the paperwork without legal help and having the paperwork sent back to me on three separate occasions."
Now, I raised with Ms Dosanjh that on its face that must have related to some problems prior to 12 January. However, she says, and for present purposes I accept, that par 3 was inserted some time after 12 January and relates to difficulties with the paperwork being sent back that arose since that time. The paragraph was inserted after 12 January, but the date of 12 January not changed.
That explanation led me, as I have explained, although belatedly, to examine the Court file. I say only that there is nothing, and I mean nothing, on the Court file and therefore the mother's contentions are certainly not strengthened in that regard. I will, however, not draw any further conclusion against the mother from the absence of any communication with the Court before 2 April 2009. I say only then, that the absence of detail means that the explanation for delay up until the filing of the document is unsatisfactory. Ms Martin, for the father, says, and it has not been said otherwise, that they were not served with the documents, a further unsatisfactory aspect of the mother's position.
Yet another puzzle is that the affidavit in support of the application of the mother is dated, in terms of her signature, 6 March 2009. The mother does not indicate that one of the difficulties with filing of her application was the absence of an affidavit and that she did not realise that she had to file one until 6 March.
One perhaps might consider that as a possible explanation, but there is no strong attachment to it in the circumstances and this is because all that the affidavit says under the heading "Evidence", which is further described by the instruction to the deponent to set out the facts, divided into consecutively numbered paragraphs, is:
"1. To extend the 28 day time limit to lodge an appeal due to the Christmas/New Year break and being unable to contact my solicitor during that time."
Those are matters confined in their terms to events before 12 January 2009, and thus offer no explanation in relation to what I have said of the affidavit.
The second paragraph is:
"Due to the length from Court date to judgment date, exactly one year, I wish to introduce evidence of the father's lack of commitment to seeing his daughter or to interact in any way in that time period."
That may be taken as something to do with a proposed ground of appeal, but I will discuss the grounds of appeal later.
And the final paragraph is:
"I am also awaiting Legal Aid funding."
But there is no connection between that declaration and an explanation for the puzzles to which I have referred. Therefore, in relation to delay, I simply say that it is certainly not satisfactorily explained.
The notice of appeal, unfiled, under the heading "Leave to Appeal" says:
"The Judge made an error of fact due to making the judgment a year after the final Court date and he has not taken into account what has happened between the final Court date and judgment."
Again, whilst I'm not suggesting that is the ground of appeal, it is couched as if it is a ground of appeal and refers to, indirectly perhaps, further evidence. All that we know in relation to what might be further evidence would be to deduce from the mother’s affidavit that it might relate to the contact or lack of contact between the father and daughter.
In that regard I simply say that the orders provided for the father to have very regular contact upon the mother's relocation. If relocation was thought best to advance the relationship, but relocation has not occurred, then one does not automatically accept that a failure of the father to see his daughter since the judgment reflects in some way poorly on him. Paragraph 2 of the entries under the part "Leave to Appeal" is:
"[the father], has not seen the child since 31 May and has only contacted the child on a few occasions since then. [The father] also informed me that he was going to come down to Victoria on 26 December 2008 to collect the child for a week till 2 January 2009, but never called to say that he had arrived."
Again, this is of the same nature as the aspect to which I have just referred and does not advance a consideration of the prospects on appeal.
Turning then to the actual grounds of appeal, there is but one and that is that the Judge made an error of fact due to making the judgment a year after the final Court date and has not taken into account what has happened in between the final Court date and judgment. Thus, doing the best one can, one believes the mother wishes to argue on appeal that the fact of the judgment being delivered a year after hearing amounts to appellable error, because the Judge has not taken into account what has happened in between times. The best one can do as to what has happened in between times is to recognise the wife's contention that the father has in some way, for which he ought be criticised, failed to have contact with the child.
One could not of itself say that the prospects of success of such a ground are of a strength that helps the mother's case in relation to an extension of time, nor is reliance upon such a ground strengthened by the observation that, in response to it, one imagines the father arguing that had there been something of note that happened between trial and judgment, the mother always was at liberty to apply to reopen prior to judgment.
At this stage I summarise my deliberations by saying that the mother's case, for an extension of time on the matters considered so far, is weak.
I turn then to the question of prejudice. No doubt there is a prejudice to the father in delay. However, he has some remedies within his control. Whether the remedies succeed or not is another matter and further litigation is certainly not an attractive prospect in most cases to persons who have already had fulsome trials. However, means of enforcement are available to him and that might mitigate the prejudice arising from delay being a delay, during which the arrangements that were to see him have regular contact with the child have not been put in place by the mother, who on the face of it is in default of the orders.
More significantly though, in my view, is the assumed prejudice to the child. I return to what I said towards the outset of my reasons. The child is young and the continued suspension of the relationship between child and father because of the failure of the opportunities for the child to spend time with the father, must be assumed to be against the child's best interests. Even a short time, for the reasons that I indicated, of continuation of this situation in my view is likely to be prejudicial to the child's best interests.
In the circumstances I, for the reasons given, dismiss the application for an extension of time.
RECORDED : NOT TRANSCRIBED
The only order of the Court then will be that:
ORDER DELIVERED

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate:

Date: 11 May 2009