Chase and Thompson - [2010] FamCAFC 223

FAMILY COURT OF AUSTRALIA

CHASE & THOMPSON

[2010] FamCAFC 223

APPLICATION – PARENTING ORDERS – Application for an extension of time to appeal interim parenting orders made by a Federal Magistrate – application dismissed.

Gallo & Dawson (1990) 93 ALR 479

APPLICANT:

Ms Chase

RESPONDENT:

Mr Thompson

FILE NUMBER:

APPEAL NUMBER:

CAC

1929

103

2009

2010

DATE DELIVERED:

27 October 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn J

HEARING DATE:

27 October 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Friesen of Watts McCray McGuinness Eley as agent for McDonnell Schroder (Blacktown)

COUNSEL FOR THE RESPONDENT:

Mr McKeown

SOLICITOR FOR THE RESPONDENT:

Elrington Boardman Allport (Canberra)

Orders

The applicant mother’s application (filed on 10 August 2010) to extend time to appeal against the orders made by Federal Magistrate Neville on 22 June 2010 is dismissed.
IT IS NOTED, that it is recorded in the ex tempore reasons for judgment of the Court delivered today, that the Court is of the view that first instance parenting proceedings in this matter should proceed as expeditiously as possible to a final hearing.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal File Number: EA 103 of 2010
File Number: CAC 1929 of 2009

Ms Chase

Applicant

and

Mr Thompson

Respondent

REASONS FOR JUDGMENT

I have before me today an application by Ms Chase, to whom I will refer as “the mother”, seeking to extend time for her to appeal orders made by Neville FM on 22 June this year (2010) in proceedings between the mother and Mr Thompson, to whom I will refer as “the father”.
Briefly by way of background – and I here rely on what I have been told in submissions today, principally by Mr Friesen, who appears as agent for the mother’s principal solicitors – that the parents were living together at the time when the child X was born in July 2006. The parties then separated in August 2007. At that stage they had been living at B in southern New South Wales, and on separation the mother went to H, which is in the south-eastern suburbs of Sydney, and the father stayed at B. There was little or no contact between the father and the child until November 2009 when the father filed an application in the Federal Magistrates Court seeking some time with the child.
Orders were made (presumably on an interim basis) on 16 December 2009 for the child to live with the mother and for there to be supervised contact with the father. Thereafter, there were a series of adjournments of the matter, and on 17 February this year the mother filed a response seeking permission to relocate, presumably with the child, from H to O, which is in the Northern Rivers area of New South Wales. Following the filing of that response, the matter seems to have come before either the Federal Magistrate or a Registrar of the Court and been subject to a number of further adjournments.
Significantly, however, on 4 May 2010, some interim consent orders were entered into which provided that the mother should not relocate, and also provided for paternity testing – in relation, presumably, to the father and the child. Those consent orders were signed by solicitors for both parties, but there is apparently some contest coming from the mother as to her consent in relation to the orders. But notwithstanding those orders or whatever attitude the mother might take to them, on 20 May she did in fact relocate with the child and her own parents to O and I am told today that at about that time her parents’ home in H was sold.
On 3 June the father filed an application for the child to reside with him. That application was adjourned till 21 June, and on that date there was some form of directions hearing before Neville FM. His Honour apparently determined that the matter was urgent and he adjourned the matter to the following day. Again I am told that on that next day, while the mother was represented by a solicitor appearing as agent, the mother herself and her own mother, even though they had been in Canberra the day before, did not attend the Court. However that may be, his Honour proceeded to make orders for which, it seems, he gave some reasons on the day, but ultimately published settled reasons. The published judgment does not bear the date of publication on the Associate’s endorsement but I am told it was in September this year.
What then apparently happened was – and I will return to this in another context shortly – the mother changed solicitors and her new solicitors endeavoured, on 29 or 30 July, to file a notice of appeal and were apparently informed by the Appeal Registry that they were out of time - the time to file an appeal having expired on 20 July. Again, I am told that on 30 July the matter was mentioned before his Honour when a stay of orders of 22 June was sought because of the impending appeal. His Honour apparently refused a stay of the orders for the reason that an appeal had not then been filed.
Ultimately, what happened was that the solicitors – the new solicitors for the mother – then, on 10 August, filed an application in an appeal in which they sought an order permitting an appeal to be filed out of time. By that time the appeal would have been probably some 20 days out of time, but some might argue that the solicitors attempt on 29 or 30 July to file the appeal is the time from which one should judge the period of delay. In support of the appeal the solicitor for the mother filed an affidavit.
It is that application that has come before me today.
At the outset today I expressed grave concerns that this was yet another peculiarly Canberra type of appeal where the appeal is filed (or sought to be filed) against interim parenting orders made in the Federal Magistrates Court when that Court has provided in its orders for the matter to come back before it within a month or so. Indeed, in some instances before the appeal can be processed, because of the work involved in that process, we are finding that the matter has come back two or three times before the Federal Magistrates, and in some cases even been set for final hearing.
In this case, there have been a number of further mentions in the Federal Magistrates Court since the making of the orders (which are sought to be appealed). Certainly on 10 September there was at least a mention and an order made, and that order, I think, informs us that there was to be a further mention on 7 October, and I understand that on that occasion the matter was further put over to 12 November.
Importantly though, both the solicitor for the mother and counsel for the father appearing before me today concede that what has emerged at those further mentions of the matter is that the matter will not proceed at first instance to a final hearing until the appeal is heard; that is an important consideration that I will return to.
Coming back to the application that is before me. As I have said, it is an application to extend time to appeal. The principles that relate to, or to which the Court should have regard in considering, an application to extend time beyond the time period provided in the rules are contained in the decision of McHugh J in Gallo & Dawson (1990) 93 ALR 479, where his Honour said at 480:
… Thus, the present application was made over 16 months out of time. However, the applicant relied on the provisions of O.60, r.6 to support her application. That rule provides that the Court or a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. 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 and 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 194-195. 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 263-264; 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 p 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 …
There are, one might say, some general principles arising out of Gallo & Dawson, including the one on which Mr McKeown, appearing for the father here today relies, and that is, that the Court has to consider whether strict compliance with the rules, in other words, not extending the time provided in the rules to do something, in this case, to appeal, will work an injustice.
Even before the decision in Gallo & Dawson, there were decisions of this Court, and subsequent to that decision there have been decisions of this Court, which extract some practical matters that the Court should look at. Basically, they are the reasons and explanation for the delay and the period of the delay; whether the appeal is likely to have merit; and the third matter is prejudice to either party - and as I have said here this afternoon, that prejudice issue relates in some way to the injustice principle that Mr McKeown has relied on.
As to the time of the delay, I have said before it could be 10 days, it might be 20, but it is not a large delay. As for the reasons for the delay, one would have to say they do not emerge in very express terms from the supporting affidavit to the application, but one can infer from what is put there that the mother after the hearing on 22 June chose, for whatever reason, to change solicitors. Her new solicitors had some difficulty in, and in fact, they did not obtain the file from the previous solicitors until 26 July. They then set about trying to draft a notice of appeal and that is when they ran into the time difficulties. In my view, it is a reasonable excuse which in the normal course of events, would be given some weight. However, it has to be weighed against other considerations.
The merits of the appeal are always a difficult matter to adjudicate upon, particularly when one does not have the benefit of a transcript or other material relating to the making of the orders. I do have the reasons for judgment but nothing else. The three grounds of appeal are as follows:
1.There is no evidence, legal principle or fact which requires the person the subject of order 1 to be joined as a party. It was not an Order sought by the applicant father.
2.There is no reasonable capacity for the Respondent to comply to Orders 2, 4, 5 or 7. The location stated in order 2 is not proximate to any party and the appellant has no connection to the location.
3.The Appellant was denied natural justice in that the Appellant was not provided an opportunity to file a Response or adduce evidence in reply before the Magistrate determined the application in the case filed the [sic] [by] the father.
They are, with respect, not completely enlightening. If anything, they give rise to the consideration that I expressed on a number of occasions early in this hearing today, and that is, that they carry with them a flavour which suggests that it might be better to go back at first instance to have the complaints sorted out there. Where people think they were not properly heard (and indeed one of the problems in this case seems to be the consent orders made in May, to which I earlier referred, where the mother takes issue with her consent), that is something that ought to be explored at first instance. But all I can say with the limited material available and the limited knowledge I have of the case, that so far as the merits of the appeal are concerned, the grounds of appeal suggest that this might be a case better determined, or the complaints by the mother sought to be ventilated in the appeal, might be better determined at first instance.
Importantly, though, it is recognised in the mother’s notice of appeal that the matter should be remitted (should the appeal succeed). I do not comment on the Court, or the venue to which it should be remitted as a complex matter.
That leads me then to the third matter which is prejudice to either party and this, as I have said, ties in with the injustice principle that Mr McKeown has relied on. As I said earlier, it is common ground before me today that this matter is not going to proceed at first instance until the issue of the proposed appeal is disposed of. Again, as I have said today, if this appeal was to be permitted to proceed, it would be some time before it could be heard, simply because of the other people in the queue, particularly in the New South Wales and the Canberra region, waiting to have their appeals heard. But leaving that to one side, even if we expedited the appeal, it could not be heard for a couple of months. Even on that basis, what would the Full Court or the Appeal Court, if it is a single judge, do? The Court, and as I have said, the notice of appeal recognises this, would have to remit the matter for a further interim hearing.
So what I am faced with is a situation whereby I am told that the Federal Magistrates Court will not progress this matter, either at an interim or final stage, until the appeal is dealt with. When the appeal is dealt with, it will either be dismissed, in which case no progress has been made, or it will be allowed, in which case it will be sent back for another interim hearing. I will try to put this as politely as I can, and that is, that this situation is not much use to anybody, particularly the child in question, who is only, it would seem, seeing her father in the most limited way.
I do not say she should see the father. That is for someone else to determine at some stage, but a child’s interests, as counsel for the father has stressed today, are at issue here, and there needs to be progress below. There is not going to be progress below if this appeal is permitted to proceed, and even if it proceeds successfully for the mother, she will be back where she started in the Federal Magistrates Court having another interim hearing. Bringing all these matters together, I consider, having regard to the words of McHugh J in Gallo & Dawson that the interests of justice do not require, indeed, they would seem to positively dictate, that I refuse the application to extend time to appeal and that the matter then be permitted to proceed below. It is listed to come back before the Federal Magistrates Court on 12 November.
In my orders, which I now make dismissing the application to extend time to appeal, I add a notation that as my ex tempore reason when published will reveal – I am of the view, that the first instance proceedings should proceed as quickly as possible to a final hearing of all parenting issues between these parties.
Now, I cannot direct the Federal Magistrates Court; if it were a case in my own Court, I would do more, but that request will be there in my orders. The orders will be sent to the Principal Registrar of the Federal Magistrates Court. If I did not make it clear in my reasons, I add to those published reasons that on what I have been told about this case, having regard to a relatively long period of separation, the number of issues that have arisen in that time, the number of applications that have been made, the complexity of the issues, including questions about paternity, it is obviously in everybody’s interests, particularly the child’s interests, that there be a final hearing of this matter as quickly as possible.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Finn delivered on 27 October 2010.

Associate:

Date: 5 November 2010