Beckham and Desprez
[2019] FamCAFC 110
•27 June 2019
FAMILY COURT OF AUSTRALIA
| BECKHAM & DESPREZ | [2019] FamCAFC 110 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the primary judge found the mother had contravened, without reasonable excuse, final parenting orders by failing to facilitate the child’s time with the father – Where the father sought an extension of time pursuant to r 1.14 of the Family Law Rules 2004 (Cth) to file a Notice of Appeal – Where neither the mother nor the independent children’s lawyer sought to participate in this application – Where there is no prejudice to either the mother or the independent children’s lawyer – Where the delay in bringing the application was not overly lengthy and the father offers at least some explanation for it – Where it cannot be said that Ground 2 of the draft Notice of Appeal is devoid of merit – Where an extension of time is required to prevent an injustice upon the father – Application granted. |
| Family Law Act 1975 (Cth) ss 94(2D)(a), 70NAE(5), 94AAA(5) Family Law Rules 204 (Cth) rr 1.14, 22.03 |
| Halford & Halford [2019] FamCAFC 43 Pendleton & Pendleton [2018] FamCAFC 203 |
| APPLICANT: | Mr Beckham |
| RESPONDENT: | Ms Desprez |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Damien Carter, Carter Farquar Mediation & Family Law |
| FILE NUMBER: | BRC | 9516 | of | 2010 |
| APPEAL NUMBER: | NOA | 29 | of | 2019 |
| DATE DELIVERED: | 27 June 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 27 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3889 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hartwell |
| SOLICITOR FOR THE APPLICANT: | C Lawyers |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
That the time for the applicant father to file a Notice of Appeal from the orders made in the Federal Circuit Court of Australia on 20 November 2018 in accordance with his draft Notice of Appeal be extended until 4.00 pm on 4 July 2019.
Each party’s costs of and incidental to this application be reserved to the Full Court hearing the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beckham & Desprez has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 29 of 2019
File Number: BRC 9516 of 2010
| Mr Beckham |
Applicant
And
| Ms Desprez |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
On 20 November 2018, a Judge in the Federal Circuit Court of Australia (“the FCC”) found that Ms Desprez (“the mother”) contravened, without reasonable excuse, parenting orders made on 17 April 2015 in that the mother failed to make available the child, X (“the child”), for time with Mr Beckham (“the father”) on some 10 occasions.
Section 94AAA(5) of the Family Law Act 1975 (Cth) (“the Act”) and r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) combine to prescribe a 28 day time period, from the date of orders, for the filing of a Notice of Appeal from those orders. That period expired on 18 December 2018.
However, it was not until 2 April 2019, some three and a half months after the expiration of that appeal period, that the father filed an Application in an Appeal seeking an extension of time in which to appeal from those orders.
Pursuant to s 94(2D)(a) of the Act, an application to extend time to appeal may be heard and determined by a single judge of the Appeal Division and the application comes before me today.
Notably, both the mother and the Independent Children’s Lawyer (“the ICL”), appointed to independently represent the child’s interests in the proceedings, have communicated to the Court to the effect that they do not oppose the granting of an extension of time for the father to file a Notice of Appeal. Both of those parties sought and obtained from the Court the grant of a release from attending the hearing, which was communicated to those parties. For the record, neither of those parties appeared on this application nor did either of them file any submissions.
It seems to me that it may reasonably be inferred as a consequence that neither the mother nor the ICL claim any prejudice or that the grant of an extension of time will work any injustice upon them.
Principles to be applied
In Pendleton & Pendleton[1] I set out a summary of my understanding of the principles that apply on applications of this type. I repeat that summary as follows:
[1] [2018] FamCAFC 203 at [6]-[9].
6.The power to extend time is provided in r 1.14 of the Rules. The principles governing the discretion to exercise that power are well established in many decisions of the Full Court. Some recent examples include Bant & Clayton [2014] FamCAFC 108; Chong & Chong [2016] FamCAFC 211; Manotis & Manotis (No 2) [2016] FamCAFC 232; Harrison & Ward [2017] FamCAFC 99; McMillan & McMillan [2017] FamCAFC 88 and Harrison & Ward [2018] FamCAFC 136.
7.Each of those decisions place emphasis upon the well-known judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 (“Gallo v Dawson”) in which his Honour said of an equivalent rule of court:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties … This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine 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 the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal … It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted … It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
8.It can be seen that in Joshua v Joshua (1997) FLC 92-767 at 84,440 that Lindenmayer J emphasised, again with reference to McHugh J’s decision in Gallo v Dawson, the significance of the consideration as to whether the applicant establishes a substantial issue to be raised on appeal. There, his Honour observed:
…the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation…
9.The determinative question then, on this application, is whether an extension of time is necessary to enable the Court to do justice between the parties and to prevent injustice – in this connection the Court must weigh the prima facie entitlement of the respondent to retain the benefit of the judgment and the desirability of finality of litigation (see Tormsen and Tormsen (1993) FLC 92-392).
As Murphy J has recently stated in Halford & Halford:[2]
10.While the discretion is at large, the applicant establishing a substantial issue to be raised on an appeal and satisfactorily explaining the default and any subsequent delay have typically been emphasised as central to the exercise of the discretion.
(Footnotes omitted)
Context of the Application
[2][2019] FamCAFC 43 at [10].
History of the proceedings
The child was born in 2009 and the parties separated in May 2010. The first iteration of parenting proceedings, commenced in October 2010, were settled in June 2013. Final orders were then made for the parties to have equal shared parental responsibility and for them to have equal time with the child. The second iteration of parenting proceedings, commenced by the mother in May 2014, involved both parties seeking that the June 2013 orders be set aside and that the child live with that respective party and spend alternate weekend time with the other. Those proceedings proceeded to a trial in January 2015 and an FCC Judge made orders, after a part-heard trial, that, inter alia, vacated the June 2013 orders, that the parties have equal shared parental responsibility and that the child spend half school holidays with each parent.
On 17 April 2015, after the conclusion of the part-heard trial, the FCC Judge made orders, explicitly stated to be read in conjunction with the January 2015 orders, which relevantly provided:
a)The child live with the mother; and
b)The child spend time with the father during school terms each alternate weekend commencing 24 April 2015, from after school Friday until 4.30 pm on Sunday (or Monday if it was a public holiday).
During the time of these orders being made, the father shared accommodation with a woman named Ms L (although I note the father contends that they were not in a de facto relationship). In May 2017, those living arrangements ceased and Ms L, on the mother’s case, then contacted the mother. In short, that contact resulted in the mother instructing her solicitors to send a letter to the father dated 13 June 2017, which levelled allegations of domestic violence as between the father and Ms L occurring in the presence of the child and asserted substantial alcohol abuse on the part of the father. That letter informed the father that the mother was intending to suspend the child’s time with the father and requested that the father undertake, on a voluntary basis, random CDT tests.
The mother then ceased the child’s time with the father and he filed an application for that time to be reinstated. That application was heard on 5 February 2018 and on 26 February 2018, orders were made for the child to recommence spending time with the father. The mother complied with those orders. A family report was also ordered and I note that this matter, together with another matter in which the father and Ms L are involved, are listed for a final hearing together over a four day trial in the FCC beginning shortly, on 8 July 2019.
The father filed the subject Contravention Application on 9 February 2018 and amended it on 6 August 2018. In that application, the father alleged that the mother contravened, without reasonable excuse, the orders earlier referred to by failing to facilitate the child’s time with the father on each alternate weekend between 13 June 2017 and 26 February 2018. Those allegations also included ordered holiday time in the September and Christmas periods.
At the hearing of the contravention proceedings, the mother, through her counsel, admitted to contravening the orders, but maintained that she had a reasonable excuse for so doing within the meaning of s 70NAE(5). The primary judge found that the mother had a reasonable excuse for doing so but only on 16 June 2017 and 1 July 2017 due to, on the mother’s stated belief, the contact with Ms L confirming what the child had said in a family report regarding the father being intoxicated frequently.
However, after 1 July 2017, the mother was presented with two CDT tests showing the father’s results were contrary to the allegations advanced by Ms L and relied upon by the mother. Therefore, the primary judge found that upon receipt of those results, the mother ought to have recommenced the child’s time. On that basis, his Honour found that the contraventions without reasonable excuse on the following dates were proven:
a)14 and 28 July 2017;
b)11 and 25 August 2017;
c)1, 8 and 23 September 2017;
d)6 and 20 October 2017; and
e)3 November 2017.
On 10 November 2017, the father filed an affidavit which contained personal diary notes evidencing domestic violence he had suffered at the hands of Ms L. The primary judge noted in his reasons at [31]:
That evidence is in total contradiction to the evidence that he had given in the 2015 trial before Her Honour, Judge Turner, that there was no domestic violence that had been perpetrated in the household and that [X] had not been exposed to domestic violence.
The primary judge relied upon that for the conclusion that the mother’s belief that the child was at risk in the father’s care again became reasonable, as that affidavit had shown there was violence in the household despite the father having given sworn evidence in the 2015 trial that there had been no such domestic violence in his household. The primary judge acknowledged the argument advanced by the father’s counsel that the father and Ms L no longer lived together at the time that affidavit was filed and that, therefore, there could be no risk to the child being exposed to domestic violence. The primary judge recorded this about that argument:
32.… I should say that the counsel for the father argued that the domestic violence may have occurred but it was not going to occur any further because Ms [L] had moved out and such violence would not occur again. With the greatest of respect to counsel, that totally misses the point.
33.What has happened is that the father has for the past number of years – both before the trial and after the trial, allowed domestic violence to occur in the presence of his child. That becomes even more serious when it is that he had sworn on oath that this had not happened. For a mother looking to protect the health and safety of her child it, in my view, would be reasonable for her to believe that the father could not be trusted to protect the child given that he had failed to do so in the past and had lied about it.
On that basis, the primary judge concluded that the mother had a reasonable excuse for the contraventions after that date.
Nature of the litigation
Self-evidently, applications for contravention of parenting orders are serious matters and their determination is serious.
Is there a substantial issue to be raised on appeal?
The father’s draft Notice of Appeal annexed to the affidavit filed in support of this application contains four grounds (albeit that the numbering skips number ‘4’). Those are set out verbatim as follows:
1. The primary Judge erred in law and his Honour’s discretion miscarried in, having found contraventions proved, making no order in respect of the contravention as provided for in section 70NEB Family Law Act and abdicating responsibility for determining the penalty for such contraventions to the trial judge.
Particulars
a. At judgment paragraph 35 the primary Judge finds some identified contraventions proved and at paragraph 36 finds those contraventions to be of a less serious nature;
b. At judgment paragraph 37 the primary Judge expresses a belief that the trial judge will be in the best position to make a decision; and
c. At judgment paragraph 38 the primary Judge declines to make any order as contemplated by section 70NEB.
d. The primary Judge did not consider whether making no order/s in respect of the contravention was in the best interests of the child.
2. The learned trial Judge erred in fact and law in finding that the respondent had a reasonable excuse for contravening the parenting orders in respect of the contraventions of 17 November 2017, 1 December 2017; 30 December 2017.
Particulars:
a. The primary Judge had found:
i.The father had over a number of years allowed the child to be exposed to domestic violence;
ii. The father had lied about this in the 2015 trial between the parties;
iii. In those circumstances it ‘would be reasonable for [the mother] to believe that the father could not be trusted to protect the child given that he had failed to do so in the past and had lied about it.’
b. S70NAE(5)(a) requires a finding that the ‘respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child)’.
c. The mother had not asserted that, and the primary Judge made no finding that, she had the belief on which the finding of reasonable excuse was based. (That is, the belief referred to at paragraph 2a.(i) above.)
3. That the learned trial Judge failed to afford procedural fairness to the Appellant by conducting cross examination of the Appellant and in particular:
a. Taking over the cross examination of the Appellant;
b. Asking questions in impermissible and leading form;
c. Asking questions in a belligerent manner with a raised voice
d. Asking questions that were calculated to attack the Appellant’s case and to advance the case of the Respondent; and
d. Asking questions that demonstrated a disbelief of the Appellant’s case.
5. The primary judge failed to provide adequate reasons for his decision.
(As per the original)
Having had the advantage of exchanges with counsel for the father today with respect to the grounds of appeal, albeit, with the disadvantage that there is no contradictor appearing on this application, as it seems to me I cannot conclude that there is no substance in Ground 2 of the proposed grounds in particular.
In summary, the father contends on appeal that the mother had not satisfied the test contained in s 70NAE(5) so far as concerns the further contraventions asserted by the father but which were not found by the primary judge. In short, it is contended in the appeal that there is nothing to support the primary judge’s conclusion that the mother’s stated belief was by reference to the matters or grounds which the primary judge identified. As it seems to me, the consequence of that is that it cannot be said that Ground 2 is devoid of any merit.
Given that conclusion, it seems to me unnecessary to deal specifically with any of the other grounds of appeal. As it seems to me, given that Ground 2 raises a substantial issue it potentially works an injustice upon the father to strictly apply the Rules so far as time for the filing of a Notice of Appeal.
As to the discretionary consideration, that is explanation for delay, I am not fully satisfied that that entirety of the period is completely explained. My reservations concern the father’s explanation relying, as it does, upon delay of his legal representatives. The father would have it that the delay was produced outside of his control because of the delay effectively by his legal representatives. However, as it seems to me, the father whom I note is a qualified legal practitioner, had the obligation personally to comply with relevant rules and requirements. That noted, the delay is not overly lengthy and the father offers at least some explanation for it.
Importantly, neither of the other parties, namely the mother and the ICL offer anything by way of prejudice being occasioned to either of them by reference to the delay referred to or the grant to the father of an extension of time to appeal.
For these reasons, I propose to order that the time for the applicant father to file a Notice of Appeal from the orders made in the FCC on 20 November 2018 be extended until 4.00 pm on 4 July 2019, that is seven days hence.
Given that the other parties were obviously served with the application and associated documents, they may wish to have something to say about costs of the application ultimately. Likewise, the father may wish to agitate matters about costs before the Full Court hearing the appeal.
I will, therefore, further order that each party’s costs of and incidental to this application be reserved to the Full Court hearing the appeal.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 27 June 2019, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 27 June 2019
0
8
2