Christian and Donald - [2009] FamCAFC 231

FAMILY COURT OF AUSTRALIA

CHRISTIAN & DONALD

[2009] FamCAFC 231

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Leave sought to file appeal out of time – Delay of five and a half years – Delay not adequately explained – Justice of the matter does not require extension of time – Application dismissed – Applicant to pay the respondents costs

Family Law Act (1975) (Cth), 117(2A)

APPLICANT:

Mr CHRISTIAN

RESPONDENT:

Ms DONALD

APPEAL NUMBER:

117

2009

FILE NUMBER:

CAF

564

2000

DATE DELIVERED:

1 December 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Warnick J

HEARING DATE:

1 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Eley

SOLICITOR FOR THE RESPONDENT:

Watts McCray McGuinness Eley

Orders

That the father’s Application in an Appeal filed 30 September 2009 is dismissed.
That the applicant father pay the respondent mother’s costs of and incidental to the application as agreed and failing agreement as assessed

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

IN THE APELLATE JURSIDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: EA117 of 2009
FILE NUMBER: CAF 564 of 2000

Mr CHRISTIAN

Applicant

And

Ms DONALD

Respondent

REASONS FOR JUDGMENT

On 14 May 2004, his Honour Coleman J made orders after a hearing, which is described by Mr Christian as being one at which full evidence from both parents on the issues in respect of shared payment of school fees was considered by the court. The application is further described as being one for departure in form 63 under the Child Support Assessment Act in which the order that the father sought was that the mother, Ms Donald, pay one half of the education costs for four children, J, B, A and E, which includes school, college or apprenticeship fees.
His Honour made two orders in relation to school fees in particular, being order 5, that the parties each pay one half of arrears of school fees payable to T School and order 6, that the parties each pay one half of school fees for the children, B, A and E at T School pending further order of the Family Court. I observe that no order expressly indicates that an issue determined by his Honour Coleman J was the period in the future for which any or all of the three children named would continue to attend T School. In the passages of the father’s affidavit to which I have referred, he does not say that such an issue was before the judge.
I have referred to the order for then future school fees being expressed as being pending further order, a fairly plain indication that some further consideration of the issue was anticipated and this interpretation is perhaps assisted by the final order, which was that costs be reserved.
In any event, the parties were again before the court, this time before his Honour Faulks J, on 2 June 2004, when, by consent orders were made in accordance with terms of settlement, but some other orders were made in addition. Order 2 is that each of the parents will be responsible for such amount as the T School shall determine is that parent’s share, of both arrears and future school fees of such of the children that the parents agree should attend that school. A notation related to that order, was to this effect. “This will mean that [Mr Christian] will receive either a credit for past amounts paid by him or a refund of some of those sums because of arrangements that [Ms Donald] has made with the school about the amount that the school claims from her”.
The application before me seeks an extension of time within which to appeal order 2 made on 2 June 2004, that is nearly five and a half years ago. There is no material before me, in particular, no transcript of proceedings on that day, 2 June 2004, to show how the issue which led to the order which it is now sought to appeal arose and was dealt with.
The father deposes that the parties were before the court that day on a separate formal application in respect of residence of the children and that at the conclusion of proceedings, at the invitation of the court, he requested from the bar table, additional orders be made following Coleman J’s orders of 14 May 2004, to ensure that the parties could not take advantage unfairly of T School through the misuse of school fee concessions. In other words, the first part of order 2, that each of the parents be responsible for such amount as T School determines is that parent’s share, would have been responsive to what the father says he raised. But, as my setting out of the order previously makes apparent, the order went on to qualify the obligation in relation to school fees, to operate in relation to such of the children that the parents agree should attend that school.
The father’s complaint, to which ultimately his appeal or the appeal which he seeks be allowed to bring relates, really focuses on this final clause that related to the parents’ agreement about the children attending T School, being the trigger upon which the provision for equal sharing subject to discount of school fees, arose.
The father now seeks to say that the issue of the future schooling of the children was determined by the orders of his Honour Coleman J. I am not satisfied that that is so on the material before me.
He seeks to say also that he did not raise that issue about agreement on the future schooling or determination as to the future schooling of the children, before his Honour Faulks J. If that be so, then he ought have been immediately acutely aware of the terms of the order pronounced by his Honour and one would expect a compelling and cogent explanation of delay before – after this effluxion of time and extension of time, an extension of time be granted. There is no such explanation.
He wishes to challenge the order of 2 June 2004 on the basis that it varied the order of his Honour Coleman J without any proper procedural basis for such a variation or qualification being followed on 2 June 2004.
It is very difficult for me to form any opinion about the prospects of an appeal on that basis given that I do not have anything other than his affidavit description of what happened on that day. However, on the face of it, if the court was asked to address an issue from the bar table, then one would not assume that the order resulting from the court’s response to that request followed anything other than a procedure that was acceptable to the parties on that day. If that was not so, as I have already said, one would have expected an appeal, particularly given the history to which I will refer.
The father says that in about July 2004 the mother made a formal election to Trinity School seeking to withdraw one of the children which would result in her not being required to pay school fees for that child the next year. He says he was made aware of the election and understood that that was contrary to the orders of his Honour Coleman J. I have already commented on the exact terms of the orders that his Honour made and whether or not they can be seen to have determined the future schooling of the children.
By way of explanation for delay in appealing the 2 June 2004 order, the father deposes, in effect, that he has been relying upon references to the orders that I have described in subsequent proceedings to somehow support the position that he now takes.
On 21 December 2004, the Full Court heard an appeal by the father which he describes as being in respect of child support orders made by his Honour Coleman J in May 2004. He says no appeal was made by either party in respect of the order for half contribution by each parent to school fees. In its decision the Full Court said and he quotes, “The main effect of those orders of Coleman J was to impose upon the mother a liability to pay both retrospectively and prospectively one half of the arrears of school fees for the children, [B], [A] and [E].”
As I have pointed out, that does not address the question of whether the parents were obliged to have the children attend, or any of them, attend T for the rest of their education, but merely addresses the prospective fees in relation to those children that did attend that college. I am not satisfied that anything said by the Full Court of this court legitimately, from the father’s point of view, lulled him into a position where he thought an interpretation or a position for which he now contends was acknowledged or approved by the Full Court.
The father then refers to the February 2005 application which he made requesting an order that the mother and father continue to contribute equally to the education of the three boys attending T School, including the boys going on to complete years 11 and 12 at the school and further parts that I need not presently read. He then refers to the hearing of that application and certain positions which he says were argued by counsel for the mother and that that argument was ignored by the trial judge, Lawrie J. He then quotes a reference that her Honour Lawrie J made and references that the Full Court made on appeal from the decision of her Honour. Again, I am not satisfied that those matters can be seen to address the contention which the father now seeks to propound or that in some way those pronouncements have encouraged in the father the belief that the position for which he wishes to contend was sound.
He then filed an enforcement summons on 20 February 2009. That summons was heard and dismissed by his Honour Faulks J on 3 September 2009 and the father has filed an appeal against that decision, within time. He is thus in a position to rely upon, in the appeal, any matters that were raised before his Honour Faulks J about the interpretation of the orders of 14 May 2004 and 2 June 2004 or matters of law which, though not raised before his Honour, can be argued and entertained by the Full Court without any prejudice to the mother. Thus he will not be advantaged in arguing against Faulks J’s decision of 3 September 2009 by this court extending the time to appeal the orders of 2 June 2004, except that, if granted leave to appeal the order of 2 June 2004, he would be able to seek to undermine an order upon which the parties have organised their affairs since that time. However, that may constitute a severe prejudice to the position of the mother.
In paragraphs 15 and 22 of his Honour Faulks Js reasons for decision for the orders of 3 September 2009 he said, under the heading “Agreement [about school fees]”:
When I included the word “agree” in my order of 2 June 2004 I possibly did not consider how two parents who fundamentally cannot agree on anything they might subsequently misconstrue or misinterpret my order. I concede that with the benefit of hindsight it might have been more appropriate for me to have made a more prescriptive and precise order. Nevertheless, an order was made and it is that order which I am now obliged to consider on the question of enforcement.
Paragraph 22:
As I said above, I do not believe that I had considered at the relevant time the fact that the parents would not be able to reach agreement about what agreement meant. However, there are a number of factors which would make the interpretation that [Ms Donald] has put upon those words more appropriate. It cannot be the case that parents would be obligated to send a child to a school from where the child had been expelled or which the child did not want to attend or in circumstances where, because of a drastic change in circumstances, a parent could not continue to contribute school fees or pay for associated activities.
His Honour then went on to have some further discussion of the meaning of the term “agree” which he ultimately took to be equivalent to continue to agree. Mr Christian referred me to a part of transcript of the proceedings which led to the order of 3 September 2009 – Mr Eley did not have that transcript - it was not otherwise before me - to support his argument that there was some concern about the part of the order of 2 June 2004 which was contained in the last clause, namely, that the sharing arrangement related to such of the children as the parties agreed continued to attend T School. The passages in paragraphs 15 and 22 first of all, were equivalent in any event, in effect, to the part of transcript that Mr Christian referred to, so that he is not disadvantaged in any material way by not being able to rely upon that transcript. But the passages, in my view, do not support the proposition that his Honour Coleman J had determined that the children would continue to attend T School for any particular period into the future and that his Honour Faulks J varied that by inserting the final clause in order 2.
What the passages in his Honour Faulks J’s reasons of 3 September 2009 amount to is regret at the looseness of the term “that the parents agree should attend that school” in relation to whether the term was confined to the then present or related to the continuation of the agreement into the future. If that term is uncertain, the father may raise the interpretation of that clause before the Full Court on the appeal against the 3 September 2004 orders, an argument that he has been able to raise at any time when those orders were under scrutiny since they were made. I repeat that what he asks for, however, is something of greater significance than that. He wishes to be in a position to ask a court to overturn order 2.
I am, because of the absence of material, showing the issues that were before his Honour Coleman J and the process that was adopted before his Honour Faulks J, unable to form any confident view about the prospects of an appeal based on a failure of, in effect, due process on 2 June 2004. That is a relevant factor in deciding where the justice of the case now lies. There is, in my view, inadequate explanation for delay, as I have described. Moreover, there is the prospect of it being grossly unfair to the mother to be called upon to – or to be put at risk of the assessment of a liability against her by the prospect that a court sets aside an order made five and a half years ago.
I have seriously considered adjourning the father’s application to the Full Court hearing the appeal against the orders of 3 September 2009, to preserve to the father the possibility of presenting his arguments when all of the material was available to a court. I have also seriously considered adjourning the application before me to enable him to put much more material before me, although I have not raised that question with the parties. There are unsatisfactory aspects to either of such adjournments, in short being that the mother would be put in the position of having to meet again the arguments that this application raises and having to prepare to meet an appeal that would follow any extension of time granted. I am satisfied that it would be unfair to the mother to put her in that position.
Accordingly, I deal with the matter today and for the reasons that I have given, I am not satisfied that the interests of justice require an extension of time to appeal the order of 2 June 2004. The father’s application of 30 September 2009 will be dismissed.

RECORDED : NOT TRANSCRIBED

I know little of the parties’ finances. I have an affidavit before me on another application that I described that the mother seeks to have heard today relating to security for costs of the appeal that is on foot and a stay until certain other costs are paid, but I place no reliance upon that. It is not responded to and the mother herself makes the point that she has little specific information about the father’s actual financial affairs. The father simply indicates that he has a number of debts and he makes some comment on the comparative asset position of the mother, but it is all too nebulous for me to take any real account of. Nonetheless, I must determine the application on the basis of the material before me.
The nature of the application was by way of an indulgence sought by the father to extend time which he had allowed to elapse five and a half-odd years ago. He has been unsuccessful for the reasons I have outlined and, in my view, of those circumstances that I ought take account under section 117(2A) of the Family Law Act, having regard to the limited material that I have, the nature of the application and the result lead me to conclude that it is proper to order that the father pay the mother’s costs of and incidental to the application as agreed and in default of agreement as assessed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate:

Date: 22 December 2009