Coles and Brookes

[2007] FamCA 351

FAMILY COURT OF AUSTRALIA

COLES & BROOKES [2007] FamCA 351

FAMILY LAW - APPEAL – Application to extend time to appeal – Consideration of application having regard to principles enunciated in Gallo v Dawson (1990) 93 ALR 479
- Lack of reasonable prospects of success – This outweighs all other relevant matters to be considered in exercise of discretion - Application dismissed.

Family Law Act 1975 (Cth) – Division 13A of Part VII, ss 94, 100B
Family Law Rules 2004 – Ch 22

CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
Gallo v Dawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT: Coles

RESPONDENT: Brookes

INDEPENDENT CHILDREN’S LAWYER: Lucette Collett

FILE NUMBER: CAF 943 of 2000

APPEAL NUMBER: EA 107 of 2006

DATE DELIVERED: 18 April 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 28 February 2007

REPRESENTATION

ADVOCATE FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Saunders

INDEPENDENT CHILDREN’S LAWYER: No appearance

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Coles v Brookes.

Orders

1. That the father’s Application in a Case filed 16 October 2006 be dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 107 of 2006
File Number: CAF 943 of 2000

Coles

Applicant

And

Brookes

Respondent

REASONS FOR JUDGMENT

Introduction

1. The application before me is an application to extend time in which to bring an appeal against orders made by the Honourable Justice Cohen on 31 January 2006.  

The Application

1. The formal application before me is an Application in a Case filed by the father on 16 October 2006.  In that application the father, who is self represented, seeks the following order:

   1. To make a [sic] appeal out off [sic] time, of the order made on the date 9^th Feb 2006 [sic].

2. The application is supported by an affidavit of the father sworn 16 October 2006.

3. No response has been filed to the application, but before me an oral application was made on behalf of the mother to dismiss the application.

4. On the first return date of the application, the father sought an adjournment because he had applied to the Legal Aid Commission of New South Wales for legal aid in respect of this application and his proposed appeal.  The mother, through her counsel, opposed the adjournment. I granted the adjournment, and gave ex tempore reasons for my orders made on 23 January 2007. Those orders provided that the father’s application was adjourned for hearing on 28 February 2007, and provided for the father to file any further affidavit material on which he sought to rely by 20 February 2007.

5. On 28 February 2007 the father made a second oral application for adjournment which was opposed by counsel appearing on behalf of the mother.  I refused a second adjournment, and gave ex tempore reasons for dismissing the oral application.  The father had the benefit of a consultation with the duty legal aid solicitor, who kindly appeared on his behalf in respect of the adjournment application.

6. These are my reasons in respect of the application to extend time to appeal Cohen J’s orders dated 31 January 2006 but pronounced on 2 December 2005.

Background relevant to this Application

1. I have already recorded that the father’s application first came before me on 23 January 2007.  On that day the father made an oral application for adjournment which was granted.

2. On 7 February 2007 EHT & Sons, solicitors, filed a Notice of Address for Service on behalf of the father. However on 23 February 2007 the same solicitors filed a Notice of Ceasing to Act.  No further affidavit material was filed by the father in support of his application.  There is little by way of background of the parties in the father’s material which is before the Court.

3. The trial Judge’s reasons disclose that the parties have three children, namely C born in 1991, P born in 1994 and N born in 1997.  It appears that the parties entered into consent orders on 2 June 2003 which provided for living arrangements for the children. 

4. Proceedings were heard by the trial Judge on 2 December 2005 and ex tempore reasons were delivered by Cohen J on that day.  The trial Judge noted that the proceedings before him involved a contravention application filed on 3 October 2005.  The trial Judge noted:

   The allegation against the father is that he failed to return the children to the mother at the end of a contact period in accordance with the orders, specifically that he failed to return the children at 9.00 a.m. on Monday, 26 September 2005. 

5. The trial Judge further noted:

   It is secondly said that he refused to return them to the mother until they were in fact returned, which the mother alleges was at some time on 29 September 2005. 

6. The trial Judge noted the factual background to the contravention application as follows:

   5.…The mother says that she arrived at the changeover point on 26 September 2005 at 9.00 a.m. - this was a Monday -  and the children were not there.  She saw no sign of them and saw no sign of the father.  She claims that although they were not returned to her until some time on the 29th, the father behaved in a way which was deliberately intended to prevent the children from being returned to her.

   6.What she says happened is that she remained at the car park between 9.00 am and 9.20 am.  She was not contacted by the father to suggest that he was delayed, and he did not attempt to contact her during the day.  She later telephoned her solicitor, who promised to contact the father’s solicitor, the father then being represented by a Mr [H].  Out of precaution, she went again to the [A] Hotel - that is the contact changeover point - on Tuesday at the same time, just in case they were returned a day late.  They were not. 

   7.She then telephoned her solicitor and she was advised that he had spoken to the father’s solicitor who told him he had spoken to the father who said that he had given the children to the mother at the proper changeover time.  This is completely consistent with the father’s case before me.  This left only two possibilities; either the father was not telling the truth, or the children were missing.  According to the father, of course, there is a third possibility, and it is the father’s case that the mother is lying; that she had had the children as the father alleged.  The mother says that, on hearing from her solicitor, she then tried to telephone the father, but although the phone was answered when she spoke he hung up.  She then contacted the police. 

   8.A police officer, Senior Constable [T], was called by the mother.  His evidence is that he had spoken to the mother on 27 September, as the mother said.  She said she had contacted the police.  She had told him that the children had not been returned on the Monday and she was concerned about whether she should report them as being missing.

   9.Constable [T] tried to contact the father, but failed to do so.  On the 28th he went to the father’s home between 2.00 and 3.00 p.m.  He spoke to the father and he saw some of the children.  He says that the father originally told him that he had not returned the children because he was not obliged to pursuant to the orders because the orders did not apply to school holidays.  The school holidays commenced on 26 September.  In fact, he said this twice to Senior Constable [T]. 

   10.Senior Constable [T] asked the father whether the father would like him to return the children and, I think, quite sensibly the father said the children should not go in the police truck, that it would be better if they waited for their mother to collect them.  The children seemed to reflect that attitude, or at least some of them did.  They said they wanted to wait for their mother.  When the Constable tried to ascertain whether the children were really saying that to appease the father, the father would not let the police officer speak to the children alone.  I am not satisfied that there was anything untoward in him taking that attitude.

   11.However, according to Senior Constable [T], the father then changed his story. What he said then was that he did not leave the children in the car park because, when he brought the children there, the mother was not there and that he could not just leave them in the park in case she did not arrive.  Ultimately, in evidence, the father suggested that what he said about it being inappropriate to leave them in the car park if the mother did not appear was just general conversation about what parents should do if that happened rather than any reference to the incident about which the complaint is now made.

7. The trial Judge noted that the father’s case was he had returned the children at the prescribed time and that the mother had returned the children to his place on 28 September 2005 “by just dropping them off without telling him and without him expecting it”.  The trial Judge rejected the father’s evidence.  His Honour found that the father had deliberately breached the orders and made an order for compensatory contact and for costs.  Notwithstanding that the trial Judge’s orders were pronounced on 2 December 2005 it appears that the orders were not perfected and a sealed copy thereof taken out until 31 January 2006.  The relevant part of those orders is in the following terms:

   IT IS ORDERED:

   3.That immediately following the end of the first contact period in the 2005 – 2006 Christmas school holidays between the children and the mother provided for by the Orders of 2 June 1991 there shall be 3 further days of compensatory contact between the children and the mother and the father’s immediately following contact shall be thereby reduced by 3 days from that which would ordinarily be provided by the 2 June 1991 Orders.

   4.That within 14 days the father shall pay the mother’s costs of and incidental to the proceedings before me as agreed or taxed.

Relevant statute law and rules

1. Section 94 of the Family Law Act 1975 (Cth) (“the Act”) provides for appeals to the Family Court from courts other than the Federal Magistrates Court. Section 94(1A) provides as follows:

   An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.

2. Sections 94(2D)(a), (2E) and (2F) are also relevant. They provide:

   (2D)    Applications of a procedural nature, including applications:

   (a)for an extension of time within which to institute an appeal under subsection (1) or (1AA); or

   …

   may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

   (2E)The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.

   (2F)No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

3. Chapter 22 of the Family Law Rules 2004 (“the rules”) deals with appeals.

4. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).

5. Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made.  Rule 22.12 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.

6. Rule 22.42 provides for an application to be made in respect of an appeal including an application for permission to appeal an order. 

Relevant legal principles – application for leave to appeal out of time

1. The relevant principles to be applied by a trial judge in deciding whether it is appropriate to extend time for lodging an appeal and/or review are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave.

2. The exercise of discretion also involves an assessment of prospects of a successful appeal or review. 

3. The principles which relate to an application for an extension of time in which to institute an appeal have been referred to in a number of cases, including McMahon and McMahon (1976) FLC 90-038 at 75,144, Tormsen and Tormsen (1993) FLC 92-392 at 80,017 and Gallo v Dawson (1990) 93 ALR 479 at 480 where McHugh J said:

   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 the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

   “Rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

4. His Honour’s observations, although made in the context of an application to extend the time in which to file a Notice of Appeal against an order dismissing an action brought in the original jurisdiction of the High Court, are apposite to the present application.

Evidence in support of the father’s application

1. As I have already noted the father relies on an affidavit sworn by him on 16 October 2006 and a draft Notice of Appeal.  The grounds of appeal as set out in the draft Notice of Appeal are as follows:

   1. There was a withness [sic] not aloud [sic] to give her evidence.

   2.There is new evidence from a [sic] other court case.

2. The father tendered in this application a Family Report dated 21 July 2006, that is, a report which post-dated the contravention application. He also tendered an affidavit of the mother sworn 30 September 2005 and an affidavit of Mr L sworn 28 September 2005.  The father sought to annex to his affidavit a document headed “Affidavit of [Ms J] – 14 September 2006”.  The proceedings to which the affidavit is said to relate are proceedings between the police and the father.  Objection was taken to that annexure and was upheld by me.  

3. The father also annexed to his affidavit a letter from the Local Court addressed to himself dated 8 September 2006 which noted:

   P v Yourself

   False representations resulting in police investolgations [sic]

   CC. 5 at [ ] Local Court on 8 September, 2006

   (H.25714738)

   On 8 September, 2006 the Presiding Magistrate marked the papers in the above matter as follows:

   “C.A.N. Withdrawn”.

4. Before me the father asserted that the witness whose oral evidence the trial Judge had rejected was the parties’ eldest child C.  This assertion was disputed by the mother’s counsel who appeared before the trial Judge.  There was no evidence before me by way of transcript which would establish the truth of the assertion made by the father.  

Discussion

1. I find it appropriate to consider the father’s application having regard to the principles enunciated in Gallo v Dawson (supra).

(a)    History of the proceedings

1. The father’s affidavit evidence before me in his application is brief.  Because of the limited evidence given by him I set out his affidavit material in full:

   1.I am the Applicant [father] of [B].

   2.This information that I am giving to you sounld [sic] be looked at so I can make appeal on the orders made 31^st Jan 06.  Marked “A”. Becauces [sic] the statement by [C] which is marked “B” was not alouded [sic] too [sic] be heard on the day, the add information of a police officer was withdraw in a case in [the] Local Court Marked “C”, that evidence was used to conviced [sic] me of a breach of the orders.

   3.I refer to my Affidavit date the 30^th Sept o5 [sic] to be the true and with [C]’s statement being the true of the day.

2. The admission of Annexure A to the father’s affidavit was rejected by me on a number of bases. The only other admissible evidence before me of the history of the proceedings is that set out in the trial Judge’s reasons for judgment, in the two Family Reports dated respectively 4 March 2005 and 21 July 2006, and in the affidavit material which was before the trial Judge. 

3. The first Family Report noted that in June 2003 the parties entered into consent orders which provided for a “week about” shared parenting arrangement for the children. The father was noted to “be anxious for the children to live with him on a full time basis” whilst the mother was noted to be content to accept the status quo.  The report noted that the mother lives on the south coast of New South Wales with her de facto partner, Mr W, and that the father also lives on the south coast of New South Wales.  The report writer Mr P noted:

   This is a matter in which violence has been a feature of the relationship prior to separation and while the mother claims the father was the major perpetrator of violence the father maintains that both parties behaved in a violent and abusive fashion towards each other.  The parents have no communication with each other concerning the children and lack respect and trust for each other.  The children have learned to maintain a clear demarcation between their parents’ respective households and during interviews for this report each child demonstrated extreme caution in discussing their home life with either parent or stating a strong preference for either household. 

4. In his summation of the interviews with the children Mr P said:

   None of the children were spontaneous in their discussion and were quite circumspect in their conversations being careful not to release too much information about their experiences in either their mother’s home or their father’s home.  On the whole they each presented as more favourably disposed towards their father’s home than they were towards their mother’s home although they appeared to show more ease in discussing any negative aspects of the mother’s home by comparison with their talk about their father’s home. 

1. The second report, whilst disclosing ongoing proceedings between the parties and their continuing “acrimonious relationship”, does not reveal anything of relevance to this application.

2. The parties’ affidavit material before the trial Judge sets out their competing versions of events which led to the contravention application. The father deposed to returning the children to the car park of the A Hotel at 9.00 am on 26 September 2005 and that he saw the children get into the mother’s car.  He further deposed to receiving a telephone call from a Mr H, his solicitor, on 27 September 2005 requesting he return the children to the mother. The father asserted that on 28 September 2005 he found the children at his front door. He deposed to the children having told him they had been dropped off by the mother. He further deposed to a police officer attending at his home during the afternoon and speaking with the children.  The father said he agreed that the children should be returned to the mother, and that he called the mother’s home to make arrangements for the children’s return, but as the mother was not at home he left a message for her.  The father says the mother was unable to collect the children on 28 September 2005 and arrangements were made for her to collect the children from the hotel car park the next morning at 9.00 am.

3. The mother’s affidavit evidence before the trial Judge disclosed that she attended to collect the children on 26 September 2005, but the children were not made available for collection.  The mother says she telephoned her solicitor who advised he would contact the father’s solicitor.  The mother says she rang the father as a result of advice from her solicitor, but he hung up on her.  She says she then rang the police.  The mother deposed to receiving a telephone call from the police at approximately 10.00 pm advising they had attended the father’s home, but were unable to locate him.  The mother further deposed:

   11.On Wednesday 28 September 2005, I received a telephone call from Senior Constable [T].  He advised me that he had been to [the father]’s home, had spoken to him and had seen my children.  [The father] refused to let Senior Constable [T] return the children to me.

   12.Senior Constable [T] then said to me, words to the effect of “When I first spoke to [the father], he told me that he had not breached the Court Orders, because they did not apply during the school holidays.  However, during the course of speaking to him, he changed his mind.  He then said that he had gone to the [A] Hotel on Monday, but that [the mother] was not there, so he had brought the children back to his place”. 

   13.I told Senior Constable [T], words to the effect of “Well that’s not what he told his solicitor.  According to his solicitor, he said that he saw the children get into my car.  My solicitor has received a letter from his solicitor saying so.”

4. The mother’s solicitor’s, Mr L’s affidavit, which was before the trial Judge was also in evidence before me.  He deposed, inter alia, that on 30 September 2005 he faxed to the police officer correspondence from the father’s solicitor.  There is an inconsistency in Mr L’s affidavit as to relevant dates.  Whilst the solicitor deposed to having a telephone conversation with the mother on 30 September 2005 (paragraph 1) as a result of which conversation he telephoned the police and subsequently forwarded documents to them,  Annexure B to his affidavit discloses a fax header sheet addressed to the police bearing the date 28 September 2005.  The solicitor deposed:

   6.A few minutes later, I received a telephone call from Senior Constable [T].  He thanked me for sending the documents and informed me that he intended to charge [the father] with causing a public nuisance.

   7.Senior Constable [T] also said to me, words to the effect of “When I first spoke to [the father], he told me that the Court Orders do not apply during the school holidays.  He said that he did not have to return the children.  However, when I told him that [the mother] and her solicitor had said otherwise, he then changed his story and said that he had in fact attended on Monday morning, but that [the mother] was not there”.

   8.I note that [the father]’s statement to the police contradicts his statement to his solicitor.  [The father] told the police that [the mother] was not in attendance. However he told his solicitor that he had seen the children get into her car.  I say, however, that neither statement is true.

5. It is clear from the trial Judge’s reasons that the father conceded he understood the orders made on 2 June 2003, and that he had been properly served with the contravention application. His Honour recorded the allegations made against the father, namely, that he failed to return the children to the mother on 26 September 2005 and failed to return the children until 29 September 2005.

6. The trial Judge recorded evidence which I have set out earlier in these reasons but which I repeat for ease of understanding, given by the relevant police officer Constable T as follows:

   9.Constable [T] tried to contact the father, but failed to do so.  On the 28th he went to the father’s home between 2.00 and 3.00 p.m.  He spoke to the father and he saw some of the children.  He says that the father originally told him that he had not returned the children because he was not obliged to pursuant to the orders because the orders did not apply to school holidays.  The school holidays commenced on 26 September.  In fact, he said this twice to Senior Constable [T]. 

   10.Senior Constable [T] asked the father whether the father would like him to return the children and, I think, quite sensibly the father said the children should not go in the police truck, that it would be better if they waited for their mother to collect them.  The children seemed to reflect that attitude, or at least some of them did.  They said they wanted to wait for their mother.  When the Constable tried to ascertain whether the children were really saying that to appease the father, the father would not let the police officer speak to the children alone.  I am not satisfied that there was anything untoward in him taking that attitude.

   11.However, according to Senior Constable [T], the father then changed his story. What he said then was that he did not leave the children in the car park because, when he brought the children there, the mother was not there and that he could not just leave them in the park in case she did not arrive.  Ultimately, in evidence, the father suggested that what he said about it being inappropriate to leave them in the car park if the mother did not appear was just general conversation about what parents should do if that happened rather than any reference to the incident about which the complaint is now made.

7. At the conclusion of his reasons, the trial Judge recorded he found the contravention proved, and that he proposed to make orders for compensatory contact.  He subsequently made an order that the father pay the mother’s costs as agreed or taxed (in fact as assessed under Chapter 19 of the rules).  There was no evidence before me as to whether the father had paid the costs as ordered, but it appears that the costs order has been stayed pending determination of this application.  

(b)     The conduct of the parties

1. There is nothing in respect of the parties’ conduct which is relevant to this application.  Whilst the father did seek and was granted an adjournment, he did not file any further material to support his application.  I do not find that conduct relevant as it appears from the notices filed by EHT & Sons he did seek to obtain legal representation for the application, but no affidavit material was filed by the solicitors in accordance with my order of 23 January 2007. 

(c)     The nature of the litigation

1. The primary proceedings are contravention proceedings under Division 13A of Part VII of the Act. Thus, any further contravention by the father proved to the requisite standard under the Act, may have adverse consequence to him by way of penalty particularly if the Court finds he had serious disregard for his obligations under the primary order. If an extension of time is granted, and the father’s appeal allowed, the consequence would be the necessity for a rehearing of the contravention application, and subsequent costs application.

2. In his submissions before me, the father did not raise any issue about the trial Judge’s order for compensatory contact, but rather expressed his concern about the costs orders.

3. I also take into account the adverse impact ongoing litigation is likely to have on the parties’ children.  In this regard I place significant weight on Mr P’s two reports.

(d)     Consequence for the parties of the grant or refusal of the application for extension of time

1. I accept a failure to extend time would deprive the father of the ability to challenge the trial Judge’s recording of a contravention of orders, and seek to set aside the costs orders which were clearly made because of the finding the orders had been contravened.

(e)    The prospects of success of the appeal

1. It appears to me that this factor is the most compelling matter requiring consideration in determining whether or not to extend time in which to file an appeal.

2. The father appears to be relying on an assertion that the trial Judge improperly refused to admit relevant and admissible material.  However, in his submissions before me the father asserted that the trial Judge had refused to admit oral evidence from C, or would have refused such evidence if he had sought to have it admitted.

3. It is very difficult to consider whether this ground has any prospect of success.  It is far from clear that the trial Judge did in fact reject admissible evidence.  The father was unable to take me to any affidavit he had sought to file before the trial Judge which was improperly rejected. Nor do I  have the benefit of the transcript of the proceedings before the trial Judge to show what, if any, documents the father sought to tender and the basis for their rejection.

4. I have had due regard to the fact the father is a litigant in person, and the difficulties in addressing issues of evidence.  From the father’s submissions it appears to me that what he was really asserting was that if leave was granted, he wished to adduce further evidence before the Full Court, being evidence of C of her recollection of the events of 26 September 2005. I have therefore considered the principles applicable to the reception of further evidence as discussed in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 on the basis that the evidence proposed would be an affidavit sworn by C. I propose therefore to firstly consider the admissibility of such an affidavit and the relevant principles espoused in CDJ v VAJ (supra).

5. Section 100B deals with the swearing of affidavits by children,  the calling of children as witnesses and the presence of children in Court. It is in the following terms:

   SECT 100B

   Children swearing affidavits, being called as witnesses or being present in court

   (1)A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings, unless the court makes an order allowing the child to do so.

   (2)A child must not be called as a witness in, or be present during, proceedings in the Family Court, or in another court when exercising jurisdiction under this Act, unless the court makes an order allowing the child to be called as a witness or to be present (as the case may be).

   (3)In this section:

   "child" means a child under 18 years of age.

6. It appears to me having regard to the evidence contained in the Family Reports tendered in this application, that it would be inappropriate for C to be required to swear an affidavit in these proceedings, and to be called as a witness and subject to cross-examination.  The evidence which would seem to me to be the relevant objective evidence would be that of the police officer who attended the father’s residence and perhaps his notes.  It appears that the police officer did give evidence before the trial Judge and that his evidence did not support the father’s case.

7. In CDJ v VAJ  (supra) the High Court noted the limitations on the adducing of further evidence to show the decision of the trial Judge was erroneous:

   109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

8. Further and significantly, the High Court said at paragraph 111:

   111.… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

9. Also relevant in this case in consideration of the proposed further evidence are paragraphs 113 to 116.  They provide as follows:

   113. In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).

   114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.

   115. Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.

   116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.

10. In respect of paragraph 115, I accept that these proceedings are not parenting proceedings, but proceedings for contravention of a parenting order.

11. I am not satisfied if the father sought to adduce an affidavit from C that it would be appropriate to admit the affidavit into evidence. Further such evidence would be likely to be controversial and require cross-examination. I do not accept it would be in this young person’s best interests to be embroiled in her parents’ dispute, the central nub of which, from the father’s point of view, is principally in respect of costs. 

12. The only other evidence which the father advances in support of his proposed grounds of appeal is the letter from the Local Court.  That does not substantially advance his application for an extension of time on the basis of disclosing any merit to the proposed grounds of appeal, but rather may have some relevance to the time delay which has occurred in filing this application.  

(f)     Can hardship or injustice to the respondent be compensated by an order for costs

1. There is little information before me about either party’s financial position other than that set out in the trial Judge’s reasons which were delivered over 12 months ago.

2. From that information it would appear the father has some capital, but otherwise little capacity to meet any substantial costs order at the conclusion of an unsuccessful appeal.  I do not find this factor to be one disentitling the father’s application, if it otherwise had merit.

(g)    Delay by the father and explanation for the delay

1. I have referred to the letter from the Local Court and the father’s submissions on this topic.  I accept there is some basis for the father’s delay in bringing the application.

Conclusions

1. In Gallo v Dawson (supra) McHugh J noted:

   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…

2. Having regard to the matters discussed above, I find the lack of reasonable prospects of success of the proposed appeal to outweigh all other relevant matters to be considered in the exercise of my discretion, and I do not find it appropriate to extend time in which to appeal the trial Judge’s orders.

I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate: 

Date:  18 April 2007