BLANCHARD & BEAN
[2018] FamCAFC 219
•16 November 2018
FAMILY COURT OF AUSTRALIA
| BLANCHARD & BEAN | [2018] FamCAFC 219 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – where the mother failed to file a draft index to the appeal books within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – where the mother’s appeal was deemed abandoned by operation of r 22.13(3) – where the mother’s proposed appeal constitutes only challenges as to weight – where the mother’s appeal was so devoid of merit that it would be futile to reinstate it – where the mother sufficiently explained her delay in filing her application – where the father, and indeed the child, would incur prejudice by the reinstatement of an appeal devoid of merit – application dismissed – no order as to costs. |
| Family Law Act 1975 (Cth) ss 60CC(3), 65D(2), 117(2) |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Blanchard |
| RESPONDENT: | Mr Bean | ||||
| FILE NUMBER: | DGC | 2078 | of | 2014 | |
| APPEAL NUMBER: | SOA | 92 | of | 2017 |
| DATE DELIVERED: | 16 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 12 and 15 November 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 November 2017 |
| LOWER COURT MNC: | [2017] FCCA 2632 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Korke |
| SOLICITOR FOR THE RESPONDENT: | Victoria Legal Aid |
Orders
The applicant mother’s Application in an Appeal filed 10 October 2018 be dismissed.
There be no order as to costs.
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 Blanchard & Bean 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 MELBOURNE |
Appeal Number: SOA 92 of 2017
File Number: DGC 2078 of 2014
| MS BLANCHARD |
Applicant
And
| MR BEAN |
Respondent
REASONS FOR JUDGMENT
By Application in an Appeal filed on 10 October 2018, Ms Blanchard (“the mother”) seeks reinstatement of her appeal from parenting orders[1] made by Judge Burchardt in the Federal Circuit Court of Australia on 17 November 2017, following a trial of parenting proceedings between the mother, Mr Bean (“the father”) and the Independent Children’s Lawyer (“ICL”) appointed to independently represent the child the subject of these proceedings.
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Those orders and this application concern the child X born in 2010.
The parties were advised by the Court, via email and by letter posted on 26 October 2018, of the listing of the hearing of this application on Monday last, 12 November 2018. In response to the Court correspondence, the ICL advised the Registry to the effect that the ICL, having been discharged from that role, would not be participating in this application, but may again become involved in the proceedings if the appeal were to be reinstated. For his part, it became apparent that the father, who participated in the hearing by telephone at the Court’s instigation, had not been served with the application. It was apparent that the father had been operating on an understanding that the proceedings had come to an end with the making of the final orders.
In order for the father to have a reasonable opportunity to consider this application and to be heard in respect of it if he chose to so do, the hearing of the application was adjourned to yesterday, with orders being made for the mother to forthwith serve her application and supporting affidavit upon the father at the address he provided. That occurred and the hearing of the application proceeded with both parents in attendance, the mother representing herself and the father represented by Mr Korke of counsel, funded by Victoria Legal Aid. The father opposed the application. Given that his legal representation was secured on short notice and only on Wednesday last, the father had not had the opportunity to file affidavit evidence by yesterday’s hearing. On behalf of the father, Mr Korke was permitted to outline some (limited) evidence the father would swear to if required, whilst the mother was permitted the opportunity to make submissions in response to anything said by Mr Korke.
The mother’s appeal, filed on 14 December 2017, was deemed abandoned after she failed to file a draft index to the appeal book within the timeframe prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) which, in this case, required that document to be filed by 8 February 2018. The Appeals Registrar wrote to the parties on 13 February 2018 and confirmed that the appeal was deemed abandoned pursuant to r 22.13(3) of the Rules. As noted, this application was not filed until 10 October 2018.
As will be further discussed, the mother attributes to her then lawyers all responsibility for failure to comply with the requirements of the rules to preserve her appeal. She deposes in her affidavit in support of this application to the effect that she did not learn until 30 August 2018, when she contacted her solicitors, that the appeal had been abandoned.
Applicable Principles
Rule 22.44 of the Rules contains provision for the Court to reinstate an appeal that has been deemed to be abandoned. The following statement of principle by McHugh J in Gallo v Dawson,[2] is frequently applied on these applications:
…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: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. 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: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. 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.
[2] (1990) 93 ALR 479, 480 – 481 (“Gallo”).
In Joshua v Joshua[3] Lindenmayer J emphasised, again with reference to McHugh J’s decision in Gallo, 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.
[3] (1997) FLC 92-767, 84,440 (“Joshua”).
It is important to bear in mind that both Gallo and Joshua were cases involving applications for the grant of an extension of time under relevant rules of court for a party to file an appeal. Here, the mother’s appeal was filed within time, but was deemed abandoned, by operation of the Rules.
In Jackamarra v Krakouer[4] the High Court considered the rules governing appeals in the Supreme Court of Western Australia. The relevant rule required an appeal to be entered for hearing before the expiration of 12 weeks from the institution of the appeal unless the Full Court or a judge otherwise ordered. The High Court drew a distinction between applications where an appeal has been lodged within time, and the application is for an extension of time for taking a step in prosecuting the appeal, on the one hand, and applications to extend the time for the filing of an appeal on the other. Brennan CJ and McHugh J held that once an appeal has been lodged, its merits are not a relevant consideration in an application for an extension of time for taking a step in prosecuting the appeal, unless the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time. Each of Brennan CJ, McHugh and Kirby JJ expressed reservations about the court’s ability to make a conclusion that the appeal had no prospects of success when the court was not in a position to examine all of the evidence advanced at trial.
[4] (1998) 195 CLR 516 (“Jackamarra”).
The obvious point of distinction between the rule of court considered by the High Court in Jackamarra and the relevant family law rule here, is that whilst the subject rule in Jackamarra prescribed a requirement for the entry of the appeal within a timeframe, the rule did not further provide for the appeal to be deemed abandoned in the event of non-compliance. That is, non-compliance with the relevant rule in Jackamarra may well have invited the respondent to the appeal to move the court to dismiss the appeal for want to prosecution, but the operation of the rule itself did not extend to termination of the appeal. Here, the subject rule, r 22.13(3), specifically provides that if an appellant fails to comply with the requirement “the appeal is taken to be abandoned”. Therefore, it might be seen that under this rule the respondent accrues “a vested right to retain the judgment” upon the operation of the rule having the effect that the appeal is deemed to be abandoned. In that respect then, an application to reinstate an appeal deemed abandoned may be analogous to an application to extend time to file an appeal, with the consequence that the principles in Gallo ought be applied.
In any event, it has been determined by Full Court authority that the principles to be applied, and the considerations thus relevant in the determination of an application to reinstate an appeal which has been deemed abandoned, are the principles identified by McHugh J in Gallo.[5]
[5] See, for example, Rand & Rand [2009] FamCAFC 88 at [16] although it is acknowledged that the Full Court in this case did not refer to Jackamarra.
It will be seen that in the circumstances of this case, including the limited scope of the grounds of appeal, and the absence of any specific challenge to any finding recorded in the trial judge’s reasons, it is unnecessary to an assessment of the merits of this appeal to have regard to the complete trial record.
It can be seen on the authorities[6] that the fundamental question on an application such as this is the remedying or preventing of injustice. An applicant must show that to refuse the application would constitute an injustice. It can be seen from the authorities, including those relating to the extension of time in which to appeal, that the relevant considerations taken into account when determining applications of this kind include the following:
·Is there an adequate explanation of the delay?
·Do the proposed grounds have some merit?
·The prejudice to the respondent; whether any prejudice can be compensated by an order for costs and any consequences otherwise for the parties;
·The conduct of the parties; and
·The nature of the order appealed.
[6] See, for example, Callas & Callas [2018] FamCAFC 124; Harrison & Ward [2018] FamCAFC 136; Sellink & Sellink [2017] FamCAFC 30; Tormsen & Tormsen (1993) FLC 92-392.
Relevant to assessing one or more of the relevant considerations, including the merits of the appeal, is consideration of the orders made by the trial judge; the central findings informing those orders; and the grounds of appeal advanced by the mother in her Notice of Appeal.
Orders made by the trial judge
The final parenting orders provided for:
a)the father to have sole parental responsibility for the child (Order 2);
b)the child to live with the father and spend time with the mother, as agreed between the parents (Orders 3 and 4);
c)the child to communicate with the mother via telephone, Skype and exchange of cards, gifts and letters (Order 5(a) and (b));
d)the father to be at liberty to monitor the child’s communication with the mother (Orders 6 and 7);
e)the parents to keep each other advised of their current residential addresses and telephone numbers and notify the other of any changes (Order 8); and
f)the ICL appointed on 23 November 2014 to be discharged (Order 9).
The final orders were entirely consistent with the orders proposed by the ICL in the final written submissions filed on 17 October 2017. Those proposed orders and submissions were adopted by the father in his written submissions filed on 24 October 2017. The mother did not file any written submissions as provided for by orders made on 12 October 2017.
Grounds of appeal
The mother was represented by solicitors and counsel at the trial. Her Notice of Appeal was drawn and settled by the lawyers who represented her at trial.
The mother’s Notice of Appeal filed on her behalf by her lawyers on 14 December 2017 seeks leave to appeal (which is not required) and sets out two stated grounds of appeal.
Those grounds are as follows:
1.The Orders made by His Honour were against the weight of evidence.
2. The Orders made effectively deny [X] born … 2010 having any meaningful relationship with his mother or either of his brothers, with whom he had resided for the majority of his life.
Relevant facts and central findings of the trial judge
Not by way of, in any manner, criticism of the mother for her unfortunate mental health issues, but simply as a statement of relevant fact, in May 2015 the mother was incarcerated for a period of time after attacking a friend’s car with a baseball bat in November 2014. On 17 May 2015 the father was contacted to collect the child from Suburb G Police Station following the mother’s arrest earlier that day for this conduct. The child has lived with the father since that time.
The mother’s two children from a previous relationship, C and D, who were aged 12 and 11 respectively at the time of the trial, moved to live with their maternal grandmother following the mother’s incarceration. The children C and D returned to the mother’s care by 3 December 2016. Since then, the mother confirmed that she has severed their relationship with the maternal grandmother.
The mother also spent over two weeks following her arrest in May 2015 hospitalised under the Mental Health Act 2014 (Vic).
Taken from the reasons for judgment, it can be seen that the following findings, not sought to be challenged by the mother if her appeal were to be reinstated, are central to the parenting orders the trial judge made.
First, the trial judge made adverse credit findings in relation to the mother and her evidence (at [57]). The trial judge found the father to be a “careful and honest witness” (at [56]) and that the family report writer’s “observations about the mother’s behaviour [to be] entirely consistent with the mother’s behaviour in Court” (at [58]). The trial judge confirmed his acceptance of the family report writer’s evidence.
The trial judge found that the mother on her own evidence “continues to be a heavy user of cannabis and has driven while under the influence of cannabis effectively for all her adult life. This is so whether children are in the car with her or not” (at [6]).
The trial judge referred to the feature that the mother’s two older children, C and D, were removed from her care upon her incarceration in 2015 but were also removed from her care for a period of two years on an earlier occasion, with there being very extensive Department of Health and Human Services involvement with the mother’s family (at [8]).
The trial judge referred extensively to, and accepted, the expert evidence of the family report writer, Ms A. There are detailed references to the written evidence of this expert as appearing in the expert’s report, throughout the reasons of the trial judge. Without being exhaustive, those references include these:
11. Having noted at paragraph 6 that the mother had been diagnosed as having “exhibited manic/psychotic/no insight/refuses medication/grandiose beliefs” while she was in [the hospital] as earlier indicated, [Ms A] noted that the mother had been diagnosed with Bipolar Disorder. [Ms A] noted that the hospital itself had noted that the mother would not adhere to prescribed medication and will continue to use marijuana. The report noted “a history of illicit drug use and violence in [Ms Blanchard’s] house to which [X] has been exposed” (paragraph 7). [Ms A] noted that while the father admitted historical marijuana use his drug screens have been clear since July 2015. [Ms A] noted at paragraph 9 that [C] and [D] had ceased seeing their grandmother, [Ms J], since they were returned to their mother.
…
13. Having noted the positions of the parties and that (page 8) the mother “displayed a limited capacity to promote a relationship between [X] and his father”, the report went on to canvass the records of the DHS. At paragraphs 16 and following, the report observed:
In summary, the Department of Health and Human Services assessment dated July 2015 indicated that they have significant concerns about [Ms Blanchard’s] capacity to provide adequate care and a safe environment for [X]. This assessment was based on [Ms Blanchard’s] long child protection history where she has demonstrated the limited capacity to provide positive and non-aggressive relationships with his family, friends, authority figures and community members.
As an example of [Ms Blanchard’s] documented aggressive behaviours, in September 2014 during an altercation between [Ms Blanchard] and her friend, [Ms Blanchard] attacked her friend’s car with a baseball bat. In relation to this incident, [Ms Blanchard] stated to police that she does not smash people’s cars with a baseball bat every day but “only when she needs to”.
Within his mother’s care [X] has been exposed to acts of violence, an unstable routine, unsuitable parenting practices, mental health issues, drug use and cumulative harm. Furthermore, [Ms Blanchard] has been assessed as presenting with limited understanding of the needs of a young child and limited insight into the harm caused by her lifestyle and parenting decisions.
The Department of Health and Human Services suggested that [Mr Bean] can provide stable, safe and appropriate care for [X] and ensure that [X] maintains his ongoing relationship with his half-siblings and his maternal grandmother as well as a positive relationship with the extended paternal family.
…
24. Having noted at paragraph 69 significant behavioural differences in [X] during observation sessions with each parent, the report continued at paragraphs 70 - 73:
[Ms Blanchard] advocated that [X] is returned to her primary care and was critical of the legal systems which she believed wrongly removed him from her care. She advocated there had never been any safety concerns for [X] living primarily with her believing that the Court has discriminated against her due to her mental illness.
During her interview, [Ms Blanchard] demonstrated limited insight into the impact her historical violent and erratic behaviours have had upon [X’s] experiences of trauma and neglect. [Ms Blanchard] presented as highly aroused, agitated and she reported some deluded or grandiose beliefs.
Consistent with the report to the Federal Circuit Court made by the Department of Health and Human Services dated 15th July 2015 this assessment supports [X] living in the primary care of his father where he appears to have settled and is thriving in this emotionally secure environment.
The Court may need to consider the amount of time [X] spends with his mother and half-brothers to maintain his significant relationships and under what conditions. [Ms Blanchard] has a significant history of dependency on illicit substances which is likely to be detrimental upon her existing mental health issues. Notwithstanding this history, she announced that she was not going to comply with orders requiring her to complete supervised drug screens.
The trial judge found that the mother’s life has been marked by significant incidents of family violence, some of which the child has witnessed and remembers (at [60]).
There is no suggestion by the mother on this application, nor is it foreshadowed by her grounds of appeal, that the mother has any basis for challenging on appeal the expert evidence, or the acceptance of that evidence, by the trial judge.
In dealing with the question of parental responsibility the trial judge made the following finding:
67. This is a case in which the presumption in favour of equal shared parental responsibility is clearly rebutted. There is an obvious and significant need to protect [X] from the risk of harm, both physical and psychological, in his mother’s care. Not only that, but the complete breakdown of interparental relations sounds strongly against the imposition of equal shared parental responsibility. The father is making, it would seem, a far better fist of bringing up [X] than his mother is capable of, and it is plain that [X’s] best interests would, in these circumstances, be met by giving the father sole parental responsibility. That is the position also of the Independent Children’s Lawyer, and I agree.
Whilst the trial judge found that it was in the child’s interests to have a meaningful relationship with both of his parents, the trial judge recorded a finding that there was a need to protect the child from a risk of abuse (posed by the mother) in the face of the mother’s “continued and unceasing denigration” (of the father). At [68] the trial judge recorded:
68. Everyone agrees in this case that it is of [X’s] benefit to have a good and meaningful relationship with each of his parents. The father’s concessions in this regard, in the face of the mother’s continued and unceasing denigration, do him great credit. Nonetheless, there is plainly a need to protect [X] from the risk of abuse, and this is a factor that requires greater weight (section 60CC(2A).
From [69] of the reasons the trial judge can be seen to take into account each of the relevant considerations under s 60CC(3) of the Act. In the course of discussing those subsections, without being exhaustive of the relevant findings the trial judge made, those findings included the following:
Section 60CC(3)(d)
73.It seems highly probable that [X’s] more stable regime with his father has been of benefit to him. Were he to be removed from his primary care, the effects are likely to be deleterious. If he goes to his mother, she will prevent him from having any relationship with his paternal grandmother, whom he loves. He would, however, of course, spend more time with [C] and [D]. He would also be spending time with the mother’s partner [Mr R], about whom, to all effects and purposes, little or nothing is known.
Section 60CC(3)(e)
74.There is considerable practical difficulty associated with the expense of supervision. If time cannot be spent with the mother unsupervised, as I find, there will be no time with her at all. This will sunder his relationship with his mother and that with his half-siblings as well.
Section 60CC(3)(f)
75.The father has done very well. He has turned his life around and is now a good and capable carer of [X], well able to provide for his needs. The mother’s florid personality, and her utter lack of insight about the need to promote a relationship with the father, address her marijuana use, and her determination to sunder [X’s] relationship with his grandmother, suggest an insight-less incapacity to provide for the child’s needs, as opposed to prioritising her own. The incidents of violence to which she admits further suggest a real difficulty in providing a safe and controlled environment in which the children can live.
Section 60CC(3)(g)
76.In large part, this replicates the previous criterion. The father, as indicated, has got his act together and has a mature and sensible lifestyle. The mother does not, for the reasons given. It is important to remember the unchallenged evidence in [Professor S’s] report (at paragraphs 95 – 96), referred to in submissions of the Independent Children’s Lawyer at paragraph 12:
In my opinion, based on my assessment of the mother, there is ongoing impairment in the mother’s parental capacity and parenting ability due to the regular use of cannabis underpinned by the mother’s personality and psychological vulnerabilities and possibly psychiatric factors…..
Based on the history obtained, the findings on mental state examination of the mother and review of the supplied documents, the mother’s substance use (cannabis use disorder) and personality factors has limited, and does limit the mother’s parenting ability and long term parental capacity’
(As per original)
The trial judge ultimately concluded that “it is beyond doubt that the child should live with his father” (at [83]). The trial judge accepted that the orders to be made for the child’s time with his mother should be as was submitted by the ICL, such orders being also supported by the father.
As is readily apparent from the grounds of appeal contained in the mother’s Notice of Appeal, the mother’s proposed appeal constitutes only challenges as to weight. That is, within the well-known formulation in House v The King[7] concerning discretionary judgments, the mother does not contend that the trial judge acted on wrong principle; or allowed extraneous or irrelevant matters to affect or guide him; or made any mistake as to the facts; or did not take into account some material consideration.
[7] (1936) 55 CLR 499.
The difficulties of successfully challenging a discretionary judgment by way of challenges directed to weight, are notorious (see Gronow v Gronow[8] per Stephen J). Here, there was ample evidence, including expert evidence, open to be accepted by the trial judge to support the central findings made as to the risks posed to the child by his mother and her household, on the one hand, and the degree of stability achieved for the child since he commenced living with his father on the other. None of those findings are challenged by either of the mother’s stated grounds of appeal.
[8] (1979) 144 CLR 513.
Moreover, I accept the submissions on behalf of the father that, at least in one respect, Ground 2 rests upon a misconception of fact. The mother did not dispute the father’s contention to the effect that soon after the subject parenting orders were made, the father sought to make arrangements for time and communication between the child and his half-siblings, and the child and the mother, but such attempts were rebuffed by the mother. As was pointed out by counsel for the father, the parenting orders made, self-evidently, do not operate to preclude such time and communication. Rather, the orders contain, via the safeguards of the father having sole parental responsibility and the condition of the father’s agreement, no other impediment to arrangements for the maintenance of the child’s relationships. Indeed, and again not disputed by the mother, the father has sought to maintain the child’s relationship with his maternal grandmother and it is the mother herself who has acted to limit the child’s relationship with his maternal grandmother.
As those parts of the reasons quoted reflect, the trial judge was well aware of the potential adverse impacts upon the child’s capacity or opportunity to engage with his mother and half-siblings if he was living with the father. However, the overwhelming preponderance of relevant considerations (potential risk to the child being at the forefront) drove the conclusion reached as reflected in the orders.
In my judgment, in the circumstances of this case, in particular having regard to the grounds of appeal, it can readily be concluded that this appeal is so devoid of merit that it would be futile to reinstate it.
Is there an adequate explanation for delay?
In her affidavit in support of her application the mother asserts that the lawyer previously representing her “abandoned my file while still applying for legal aid assistance”. The effect of the mother’s evidence is that she received no notification that the lawyers had not prosecuted her appeal on her behalf until she was informed of that on 30 August 2018.
As was pointed out by counsel for the father, the mother acknowledged contacting her lawyers prior to 30 August 2018 about questions concerning legal aid assistance, for example, yet the mother says she was not told that her appeal had been deemed abandoned.
The mother asserts that having found out on 30 August 2018 that her appeal had been deemed abandoned, she first attempted to file this application in September 2018. For want of form, her application and supporting affidavit was not in fact filed until 10 October 2018.
The mother offers no corroborating evidence from the solicitors who acted for her. In circumstances where significant adverse credit findings have been made against the mother as earlier referred to, there is an obvious concern in accepting without question the evidence she advances.
However, the outcome of this application does not rest, for the reasons already explained, upon whether the mother has or has not adequately explained the delay. For the purposes of the application or consideration of the discretion, I proceed on the basis that the mother has sufficiently explained her delay for this not to be a discretionary consideration counting against the application.
Prejudice to the respondent – nature of the order appealed
As counsel for the father pointed out, the subject parenting orders have been in place since their making on 17 November 2017. As earlier noted, the father has been proceeding on the basis that the subject orders brought the relevant litigation to an end and finally regularised the position that has been obtained with the child living in the primary care of the father since coming into his care in mid-2015.
The obvious prejudice to the father that would be incurred by reinstatement of this appeal relates to the conclusion that the appeal is devoid of merit. That is, in terms of justice to both parties, the risk of injustice to the father (and indeed to the child) of being subjected to a meritless appeal is obvious. In comparison, there can be no injustice to the mother of being denied the opportunity of advancing an appeal that is without merit.
To this may be added the observation that the nature of the subject orders are parenting orders. As is made clear by s 65D(2) of the Act, a court exercising jurisdiction under the Act always retains jurisdiction and power to discharge or vary an earlier parenting order.
In oral argument the mother was at some pains to characterise the events leading to her incarceration in mid-2015 as a reflection of mental health issues or a “mental breakdown” the effects of which, the mother says, she has now overcome. If that is so, then obviously an appeal is an unsuitable vehicle to mount a case for discharge or variation of the subject orders given the limited capacity to adduce further evidence on appeal which may be contentious. Obviously enough, if the mother can demonstrate by evidence a material change in her circumstances then the obvious avenue to pursue different parenting orders is via an application under s 65D(2) of the Act.
Conclusion
In my judgment the justice of this case dictates that the mother’s application for reinstatement of her appeal be dismissed.
Whilst counsel for the father sought an order for costs against the mother in the event that the application was to be dismissed, in a fixed sum of approximately $1,500, I am not satisfied that an order for costs would be justified in the circumstances of this case within the meaning of s 117(2) of the Act. The mother submitted as to her financial circumstances that she has no significant property and she does not earn sufficient income to require the filing of a taxation return.
Whilst for his part the father is effectively a sole parent, and it is not suggested he has significant financial resources, he had the advantage of legal assistance via the provision of Legal Aid for the purpose of this application.
For these reasons the application will be dismissed and I will make no order as to costs of the application.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 November 2018.
Associate:
Date: 16 November 2018
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