CHABORNE & CHABORNE
[2019] FamCAFC 125
•29 July 2019
FAMILY COURT OF AUSTRALIA
| CHABORNE & CHABORNE | [2019] FamCAFC 125 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME TO FILE NOTICE OF APPEAL – Where the applicant’s forensic decision not to appeal and await the outcome of the trial does not provide a satisfactory explanation for his failure to file an appeal within time – Where the trial Magistrate considered r 15.49 of the Family Law Rules 2004 (Cth) – Where there is no merit in the ground of appeal – Where there is prejudice to both parties dependent upon the result but on balance the greater prejudice will be visited on the mother – Application dismissed. FAMILY LAW – COSTS – Where neither party sought an order for costs – Where the Family Law Rules 2004 (Cth) provide that such an application can be made within 28 days of an order being made – Left to the parties to consider whether such an application will be filed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 15.49 |
| Gallo v Dawson (1990) 93 ALR 479 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 |
| APPLICANT: | Mr Chaborne |
| RESPONDENT: | Ms Chaborne |
| INDEPENDENT CHILDREN’S LAWYER | Legal Aid Western Australia |
| APPEAL NUMBER: | WEA | 3L | of | 2019 |
| FILE NUMBER: | PTW | 2846 | of | 2017 |
| DATE DELIVERED: | 29 July 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 15 April 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Anderson |
| SOLICITOR FOR THE APPLICANT: | Kerr Fels Divorce & Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms McShera |
| SOLICITOR FOR THE RESPONDENT: | Anthony R Clarke & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Martin |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Legal Aid Western Australia |
Orders
The Application in an Appeal filed on 10 January 2019 be dismissed.
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 Chaborne & Chaborne and ICL 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WEA 3L of 2019
File Number: PTW 2846 of 2017
| Mr Chaborne |
Applicant
And
| Ms Chaborne |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
This is an Application in an Appeal filed by Mr Chaborne (“the father”) on 10 January 2019 seeking an extension of time to file an appeal against one of the interlocutory orders made by Magistrate Tyson (as her Honour then was) on 28 August 2018.
The order sought to be appealed is an order dismissing the father’s Form 2 Application filed on 22 August 2018, seeking to rely upon the adversarial expert report of a psychologist dated 20 August 2018, pursuant to r 15.49 of the Family Law Rules 2004 (Cth) (“the Rules”).
The second order sought in the application, is that that report be adduced as further evidence in the appeal in these proceedings, or in any rehearing of these proceedings. As I explained to the counsel for the father at the hearing, that application is an application that would normally be dealt with by the Full Court in the event that an extension of time is granted, and the appeal proceeds. However, it is an unnecessary application. If the appeal proceeds, then that report will of necessity be before the Full Court, and if the proceedings are remitted for rehearing, that report will also, of necessity, be before the Magistrate undertaking the rehearing. Thus, that application should be dismissed.
The application is opposed by Ms Chaborne (“the mother”) and counsel for the Independent Children’s Lawyer (“ICL”).
The application is supported by an affidavit of the father also filed on 10 January 2019, and a Draft Notice of Appeal, being the Notice of Appeal that the father would want to pursue in the event that an extension of time is granted.
The Rules provide for a Notice of Appeal to be filed within 28 days of the orders the subject of the appeal being made. Plainly, here, the father failed to do that; hence the application for an extension of time.
The relevant principles
The principles to be applied in considering this application are conveniently set out in the oft-quoted decision of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480. There his Honour said this:
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.
As can be seen, the central issue is whether the strict application of the time limit in the Rules works an injustice, and in determining that, a number of factors can be looked at. The most common factors are whether there is a satisfactory explanation for the failure to file the Notice of Appeal within time and any subsequent delay in filing an application seeking an extension of time, the merits of the proposed appeal, and the prejudice to the parties depending on the result of the application. Each of these factors needs to be considered here.
The explanation for the failure to file within time and for the delay in filing the Application in an Appeal
The father says that the order he wishes to challenge needs to be viewed in the context of the following chronology.
On 11 May 2017 the mother commenced parenting and property settlement proceedings, and the father filed his Response on 25 August 2017.
The father was imprisoned in 2014 for child related sex offences, and he was released from prison in mid-2017, on parole.
When the proceedings were initiated in May 2017, the father was no longer having any time with the child the subject of the proceedings, and he had not seen or spoken with the child since November 2016.
On 2 January 2018 orders were made for the appointment of a single expert witness.
The father filed his trial material on 19 February 2018.
On 25 April 2018 the single expert witness provided her report, and it was distributed to the parties on 17 May 2018.
The mother filed her trial material on 28 May 2018.
On 27 June 2018 the proceedings were listed for trial in September 2018.
On 29 June 2018 the mother filed her amended final orders sought.
On 4 July 2018 the father sought a report from a different expert in relation to the parenting proceedings. That expert interviewed the father, but neither the mother nor the child the subject of the proceedings, and produced her report on 20 August 2018.
On 20 August 2018 the existence of the further report was disclosed to the mother’s legal representatives, and notice was given that the father sought to adduce that report at trial.
On 24 August 2018 the father filed an Application (Form 2) seeking leave to adduce that report pursuant to r 15.49(2) of the Rules.
On 28 August 2018 that application was dismissed, and the trial commenced on 12 September 2018, with the report of the single expert witness as the only expert report before the court.
The trial concluded on 20 September 2018, and orders were made on 12 November 2018.
On 10 December 2018 the father filed a Notice of Appeal against those orders. In that Notice of Appeal the father also sought to appeal against the interlocutory order made on 28 August 2018, but he was advised that that was not possible, given an appeal against that order was out of time. The father then filed his Application in an Appeal seeking an extension of time on 10 January 2019.
Given that context, the father says that the explanation for the failure to file within time, and for the subsequent delay, is that he chose not to appeal the order of 28 August 2018 because that would have meant an adjournment of the trial, and that following the final orders being made, he determined to not only appeal those orders, but also the interlocutory order.
The obvious difficulty with that submission is, that although it explains the failure to file within time and the subsequent delay, it does not provide a satisfactory explanation. All it tells this Court is that the father made a forensic decision not to appeal, and having let the trial run and not been successful in the orders that he sought, he now wants to appeal the interlocutory order. Plainly that provides no basis for an extension of time.
In making that submission the father relies on the High Court decision of Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, but that decision does not assist. That case confirmed the principle that in an appeal against substantive orders, it is possible to challenge an interlocutory order made before, or in the course of the trial, if that order affected the final result. It does not though provide a basis for an extension of time to file a Notice of Appeal against that interlocutory order; the High Court plainly recognised that that would be the alternative to the approach of challenging the interlocutory order in the appeal against the substantive orders.
Thus, the father had a choice, either to make the application for an extension of time, or leave the challenge to the interlocutory order as a matter to be considered in the appeal against the substantive orders. As can be seen, the father has chosen the former.
In any event, and to repeat, to have made a forensic decision not to appeal and to await the outcome of the trial, does not provide a satisfactory reason for the failure to file within time, and the subsequent delay, in the context of seeking the indulgence of this Court to grant an extension of time to file a Notice of Appeal.
The merits of the appeal
The first point to note is that there is an issue as to whether leave to appeal is required, because the order is a procedural order. Leave of course would not be required if it is a child welfare matter. My preliminary view is that it is the latter, and thus leave is not required, but whatever the position, it is still the prospects of success of the appeal that need to be addressed.
The principal question to be addressed here is whether there is a substantial issue to be raised on appeal.
It is not for this Court to determine whether the appeal will be successful or not, rather whether this Court can be satisfied that the father raises an issue, or issues, of sufficient substance that they should, as a matter of justice, be ventilated in an appeal.
It also needs to be said that there are certain practical limitations on this Court in addressing that question. For example, this Court does not have the benefit of the full range of documentation that would be before a Full Court hearing the appeal, such as all of the relevant court documents, or the summaries of argument of each party.
A final comment though as to what this Court is to consider, and that is, if it can be seen that the appeal has no chance of success, then plainly it would be futile to extend the time and allow such an appeal to proceed. As a corollary though, even if there is the remotest chance of success, then the appeal should be allowed to proceed.
Here the proposed ground of appeal is as follows:
Ground 1 – Dismissal of Application to Adduce Further Expert Report
1.The determination by the Learned Trial Magistrate to dismiss the Appellant’s Form 2 Application filed 22 August 2018 to adduce evidence from another expert in relation to parenting matters, was against the evidence and the weight of evidence and was wrong in law.
As can immediately be seen, no detail is provided as to why the order was “against the evidence and the weight of the evidence and was wrong in law”. However, the father’s counsel provided written submissions setting out the father’s contentions as follows:
…
26. The [father] contends that:-
a)in proceedings in which there are significant child related matters being determined (namely whether a child is to have any meaningful relationship with a parent whom they wish to see), there is a desirability in ensuring the Court has all relevant evidence which will enable a proper testing of the evidence to occur at trial;
b)questions such as whether a person who has been convicted of child sex offences (or any offence at all), demonstrates insight and remorse into their offending following a period of imprisonment is a matter which must, by its very nature, be the subject of a substantial body of opinion. By way of example, a Parole Board contains a panel of participants, all with requisite knowledge, due to the very nature of the matters which they are considering and the range of views available about same;
c)the [Learned Trial Magistrate] gave too much weight to concerns about delay and cost which were not, on the balance of the competing factors, of such weight as to necessitate a dismissal of the proceedings and a refusal to enable the tender of the further expert report;
d)the decision before the [Learned Trial Magistrate] was not about the weight to be attributed to the Report, which would be a matter for the [Learned Trial Magistrate] following a testing and cross examination of both the [single expert witness] and the further expert proposed by the [father] to be adduced. The decision was about whether to tender or adduce the report into evidence as a further expert;
e)in relation to the consideration by the [Learned Trial Magistrate] of the delay and prejudice caused to the mother, the [father] suggests that the [Learned Trial Magistrate] erred in her consideration of same given the facts at the time were:-
i.the mother was unlikely to face any prejudice or hardship if the Report was adduced and a delay in the trial occurred because it was the father who had not seen [the child], and had not seen [the child] for 21 months; and
ii.the father sought to adduce (sic) further expert which presented a contrary opinion to the Court about:-
A.his insight and remorse, including an explanation for comments made by him in his 1.5 hour interview with [the single expert witness], and which were considered by the [single expert witness] to represent cognitive distortions; and
B.having regard for the [father’s] rehabilitation, what orders made be appropriate in the circumstances for all members of the family.
iii.The focus by the [Learned Trial Magistrate] on the delay which may be caused to the mother and the proceedings generally disregarded the nature of the proceedings, and the importance of ensuring all relevant matters were before the Court for trial, particularly in circumstances where the [single expert witness] report substantially supported the mother’s case.
…
As can be seen those contentions do not easily match up with the ground of appeal, in that it is still unclear what evidence is being referred to, but they provide a basis for discussion.
What the father had to satisfy the trial Magistrate of, was that r 15.49 applied. That rule provides as follows:
15.49(1) If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
15.49(2) The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
(b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c) there is another special reason for adducing evidence from another expert witness.
The trial Magistrate found that (a) was not satisfied, and it is put that her Honour erred in that regard. For my part I am not persuaded that there is any merit in that claim. All that the further report did was provide the author’s contrary opinion and recommendations, and that is not enough. Indeed, the introduction into evidence of such a further report is precisely what the Rules seek to prevent, by providing for the appointment of a single expert witness.
As to (b), it is suggested that the other expert, having worked with child sex offenders like the father, was able to put a different perspective on the position of the father in regard to matters of insight and remorse. However, not only was it not established before her Honour that there were relevant matters known to that expert, which were not known by the single expert witness, but, as the trial Magistrate explained, the Rules provide avenues for matters to be put to the single expert witness, for example, by way of putting questions in relation to the single expert’s report, and by providing the single expert witness with further information.
As was conceded by counsel for the father, there was no attempt to utilise those procedures prior to the hearing on 28 August 2018.
However, and significantly, I observe that paragraph 7 of the orders made that day extended the time for the father to pose any questions to the single expert witness, and I am told that the father took that up. He put certain questions to the single expert witness who responded on 10 September 2018. The trial Magistrate also emphasised that it was open to the father to cross-examine the single expert witness at trial, and put the opinions and recommendations of the other expert to her. I am also told that that was in fact done by the father. Further, also on 28 August 2018, the trial Magistrate ordered that a Sex Offender Medium Completion Report relied on by the other expert be tendered into evidence at the trial, and this too was done.
I observe that all of these options were taken up by the father instead of filing a Notice of Appeal against the order which he only now seeks to do.
Then there is (c), and it is said that the “special reason” is that this is a child-related matter where there are significant issues, and it would have been helpful to the trial Magistrate to have the report of the other expert before the court.
However, that submission did not find favour with the trial Magistrate, and this Court is not persuaded otherwise.
There are good reasons for the strict requirements that have to be satisfied before a further expert report will be admitted, and the nature and significance of the issues, and whether the report will provide assistance or not, are plainly not to the point.
It is also submitted by the father that her Honour gave too much weight to concerns about delay and cost, but those matters are highly relevant to the exercise of her Honour’s discretion.
The report of the single expert witness was distributed to the parties on 17 May 2018, yet it was only on 4 July 2018 that instructions were given to the other expert, and her report only became available on 20 August 2018. As her Honour found, to admit the report at that late stage would be highly prejudicial to the mother. The time in which the parties were to file and serve their material to be relied on at trial had well and truly passed, and the trial was imminent. There was a very real prospect that the trial could not proceed, depending on how the mother wanted to respond to the further report, and even if the trial went ahead, it would need to be extended, with the prospect of further material to be presented, and further witnesses to be called.
Finally, and not to be overlooked, when the order appointing the single expert witness was made, an injunction was imposed restraining the parties from providing copies of the report to any other person without first obtaining leave of the court. The father breached that injunction, and provided a copy of the report to the other expert, without first obtaining the leave of the court.
In my view, there is no merit in the ground of appeal raised by the father. Or put another way, at the very least, there is no issue raised of sufficient substance to require it to be ventilated in an appeal.
The prejudice to the parties depending upon the result of the application
The consequence of dismissing the application is that, realistically, the father will not be able to pursue an appeal against the interlocutory order dismissing his application. The only avenue of appeal from such a decision is to seek special leave to appeal to the High Court of Australia, and that may not be an avenue that the father would want to take up.
Of course, as referred to above, the father did have the option of challenging that order in the substantive appeal, and it may be arguable that, even if the application for an extension of time to appeal is dismissed, he still has that option, but that would be for the Full Court to consider if the father pursued it, and I make no further comment.
On the other hand, there would be clear prejudice to the mother if the application was granted. She would have to deal with the further appeal with all the consequences that flow from that, including cost, time, and resources.
Thus, each party would suffer prejudice depending on the result, although on balance, the greater prejudice will be visited on the mother if the father is still able to challenge the interlocutory order in the substantive appeal.
However, given that there is no satisfactory reason provided for the father’s failure to file within time, and for the subsequent delay in bringing the application for an extension of time, and that there is no merit in the ground of appeal, a strict application of the Rules do not work an injustice to the father, and the application will be dismissed.
Costs
Neither party sought an order for costs at the hearing. However, the Rules provide that an application for costs can be made within 28 days of an order being made. Accordingly, I will leave it to the parties whether such an application will now be filed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 29 July 2019
Associate:
Date: 29 July 2019
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