DAUTRY & WEMPLE
[2015] FamCAFC 45
•27 March 2015
FAMILY COURT OF AUSTRALIA
| DAUTRY & WEMPLE | [2015] FamCAFC 45 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where the mother seeks leave to appeal against an interim order regarding where the child attends school – Where the issue of the child’s schooling was canvassed at the final hearing – Where the final orders granted the father sole parental responsibility – Where the mother appeals against the final orders in separate proceedings – Whether refusal to extend time would result in an injustice to the applicant – Whether there is merit in the substantive appeal – Whether the issue of the child’s schooling was determined on a final basis – Where the mother has provided an adequate explanation for the delay in appealing against the interim orders – Where no prejudice would be suffered by the father if leave granted – Application allowed – Mother to pay the father’s costs of the application. |
| Family Law Act 1975 (Cth) ss 117, 117(2A) |
Family Law Rules 2004 (Cth) r 22.03
| Gallo v Dawson (1990) 93 ALR 479 McMahon and McMahon (1976) FLC 90-038 Rice v Asplund (1979) FLC 90-725 |
| APPLICANT: | Ms Dautry |
| RESPONDENT: | Mr Wemple |
| FILE NUMBER: | CAC | 1472 | of | 2013 |
| APPEAL NUMBER: | EA | 11 | of | 2015 |
| DATE DELIVERED: | 27 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 10 March 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2013 |
| LOWER COURT MNC: | [2013] FCCA 2376 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lawrence having been instructed directly by the applicant |
| COUNSEL FOR THE RESPONDENT: | Mr Stanley |
| SOLICITOR FOR THE RESPONDENT: | Farrar Gesini Dunn |
Orders
The time for filing an appeal against the orders of Judge Neville made on
20 December 2013 be extended to 4 pm Tuesday 7 April 2015.
The appeal against the orders of Judge Neville made on 20 December 2013 be consolidated with and heard at the same time as appeal EA 7 of 2015 being the appeal against the orders of Judge Neville made on 18 December 2014.
Applicant mother to pay the respondent father’s costs of and incidental to the application, such costs to be assessed or agreed. The costs to be paid 42 days from assessment or agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dautry & Wemple has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 11 of 2015
File Number: CAC 1472 of 2013
| Ms Dautry |
Applicant
and
| Mr Wemple |
Respondent
REASONS FOR JUDGMENT
Introduction
By Application in an Appeal filed on 20 January 2015, Ms Dautry (“the mother”) seeks leave to appeal against parenting orders made on
20 December 2013 following an interim hearing by Judge Neville in relation to the parties’ child X, born in 2008 (“the child”). The orders provided, amongst other matters, for the child to commence attending kindergarten at S School in 2014. It is specifically the order as to the child’s schooling that the mother seeks leave to appeal.
Leave is required because the mother’s appeal was not filed within the time prescribed by r 22.03 of the Family Law Rules 2014 (Cth) (“the Rules).
The final hearing of the substantive parenting proceedings for parenting orders commenced on 24 July 2014 and on 18 December 2014, his Honour made final orders in relation to parental responsibility for the child and as to the time spent by the child with each parent. His Honour declined to make a further order in relation to the child’s school as had been sought by the mother.
By Notice of Appeal filed on 14 January 2015, the mother appeals from
his Honour’s orders. That appeal is yet to be heard. The thrust of the application before the court is to seek an extension of time by which to appeal the parenting order made on 20 December 2013 and, if leave be granted, that the appeal against that order be heard at the same time as the appeal against the orders made on 18 December 2014.
The application for extension of time in which to appeal is opposed by the father.
Background
It is necessary to set out some matters of background to give context to the present application. Further, the mother filed an affidavit in support of the application for extension of time in which to appeal and the contents of that affidavit were not the subject of challenge as to the facts asserted in it.
The mother and Mr Wemple (“the father”) commenced living together in 2007. The child was born in 2008. The parties separated in 2010. Following separation the child lived with the mother and spent regular time with the father though this time was somewhat “ad hoc”.
On 25 September 2013 the father filed an Initiating Application seeking to formalise the time that the child spent with him. The matter was adjourned and re-listed several times before consent orders were made on 14 October 2013 for the father to spend time with the child twice per week. The orders did not provide for the child to spend time with the father overnight.
On 28 November 2013 the father filed an Application in a Case seeking further orders in relation to the child’s time with him and in relation to the school at which the child would be enrolled. The child had not at this time commenced school although she was attending a pre-school associated with G School.
The father’s application was heard by his Honour on 10 December 2013.
Two issues were agitated before his Honour, namely the amount of and nature of time that the child would spend with the father and the school that she would attend in 2014.
At the hearing, the mother contended that the child had progressed very well at her current pre-school, which is conducted by G School. It was her wish that the child commence kindergarten at G School. The father contended that he could not afford to pay the fees for G School. He further asserted that the mother could not afford those school fees. The father’s position before
his Honour was that the child should commence at S School in 2014. Further, he wished for the child to have a Catholic school education which would be provided by S School.
His Honour delivered his orders orally on 20 December 2013 and in written form on 3 February 2014 as follows:
On an interim basis, the Court orders that:
(1)The parties shall have equal shared parental responsibility for the child [X WEMPLE] (born … 2008) (“the child”).
(2)The child shall spend time with the Father as follows:
(a) Each alternate weekend from after school on Friday until before school on Monday; and
(b) One overnight in the off-week (absent agreement), that night shall be on Thursday, from after school to before school Friday.
(3)In the absence of written agreement this regime shall apply through the school holidays.
(4)Whenever the child is in the care of her Father she should be able to telephone her Mother at any reasonable time
SCHOOLING
On a final basis, the Court orders that:
(5)The child shall attend [S] School in [P] commencing in Kindergarten in 2014.
The mother filed a Notice of Appeal against these orders on 17 January 2014 and filed an application for a stay of the orders on 21 January 2014.
His Honour declined to grant a stay. By the time the stay application was heard, however, the mother had become aware that there was no longer a place available for the child to attend G School in 2014. The mother subsequently abandoned the appeal in relation to the child’s school. She said that she understood that the school issue would be re-agitated at the final hearing of the substantive proceedings, which at that point had not yet occurred. Her reasoning was that no purpose would be served by disrupting the child’s attendance at S School prior to the final hearing.
The substantive proceedings
The final hearing took place on 24 - 25 July 2014 and 10 September 2014. The issue was raised at the hearing as to whether order five made on
20 December 2013, that is, the order as to the school at which the child would attend, was a final order and whether it could be re-litigated having regard to the principle in Rice v Asplund (1979) FLC 90-725.
The issue of the child’s schooling was canvassed throughout the final hearing, as were the issues of parental responsibility more generally and the time that the child should spend with each parent. Ultimately, his Honour found that equal shared parental responsibility would not be in the best interests of the child by reason of:
·The mother’s inability to effectively co-parent with the father by including him in significant decisions relating to the child [265];
·The mother’s lack of insight into the effects of her hostility towards the father on the child [273];
·A concern about the mother’s ability to provide for the child’s psychological needs [271]; and
·A concern that the mother had given dishonest evidence in apprehended violence proceedings against the father and continued to make apparently unfounded allegations that he was stalking her and the child [277].
His Honour therefore determined that it would be in the best interests of the child for the father to have sole parental responsibility and for the child to live with the father and spend time with the mother and he made orders accordingly.
Having determined that the father ought to have sole parental responsibility for the child, his Honour considered it “unnecessary” to address the submissions on Rice & Asplund and the issue of the child’s schooling [281]. It appears from his Honour’s reasons that because he ordered that the father have sole parental responsibility, the issue of schooling could properly be determined by the father alone. On this basis, it seems, his Honour declined to consider further the mother’s submission that the child ought to be transferred from S School to G School. In his final orders made on 18 December 2014, no reference was made to the issue of the child’s schooling.
The application for leave to appeal
The principles to be applied in considering an application for leave to appeal out of time are well known and derive from Gallo v Dawson (1990) 93 ALR 479 and, in particular the statement of McHugh J about the operation of rules which provide time limits, at 480:
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. 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. 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. 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. 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.
(Citations omitted)
The Full Court of the Family Court as early as 1976 set out the principles to be applied in determining such applications (see McMahon and McMahon (1976) FLC 90-038). Those principles are in conformity with those articulated in Gallo v Dawson.
In determining then whether to refuse to extend time would act as an injustice to the applicant, it is necessary to consider the history of the proceedings, the conduct of the parties, the nature of the litigation, the consequences for the parties of a grant or refusal of the application, the prospect of success or otherwise in the appeal together with the explanation for the delay in bringing the appeal.
Merits of the appeal
Further, an important matter to be determined is whether the making of the order sought would create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that it must be clearly shown that the appeal would fail before an applicant is denied the right to have his or her appeal heard.
This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the court on the application.
In this case, a consideration of the merit of the appeal extends, in my view, to the prospect of success in the principal appeal because, even if the appeal against the interim orders has merit, if there is no merit in the mother’s appeal against his Honour’s principal orders, it would be futile to make an order extending time in which to appeal the order about the child’s school.
Interim hearing
It is relevant to observe that the mother, while represented by counsel for some of the time before his Honour on the interim hearing and at the final hearing, had no solicitor and it seems that she prepared the necessary documents herself.
It was the mother’s position that she could, with the assistance of the Child Support payments that the father was liable to pay, meet the child’s school fees.
This position was not without its difficulties, it being apparently uncontentious that the mother was in some arrears of fees to the pre-school.
It was argued for the mother that his Honour’s reasons make it clear that the basis for the order was driven by the parties’ capacity to meet the school fees at G School. Clear too from his Honour’s reasons was his view that the evidence on this, and indeed other topics, was sparse.
It is to be remembered that his Honour was dealing with two applications on an interim basis and, as such dealt with them “on the papers”. The papers as it turns out were, so far as the mother’s case was concerned, deficient in detail.
During the hearing, counsel for the mother submitted that his Honour ought not decide the school issue on an interim basis but that it should await the final hearing when, it was said there would be further, more complete evidence and a report from a Family Consultant. His Honour declined to defer consideration of the issue and found at [142(e)] that to leave the issue to be determined at a later time would leave the parties with the prospect of having to change the child’s school later in the year after she had started which would be disruptive.
His Honour was conscious that the start of the school year was imminent.
His Honour, after commenting to counsel then appearing for the mother that the decision as to the child’s school needed to be resolved quickly, said at [143]:
His Honour: … But I thought that really amongst other things that the schooling issue really is to be dealt with, effectively, on a final basis, is it not?
Counsel agreed. It was argued for the father that by this agreement, the mother had effectively conceded to a final hearing of the school issue. I do not accept that this was the effect of counsel’s concession. The context of the hearing was marked, as I have said, by his Honour’s expressed concern as to the adequacy of the mother’s evidence regarding her capacity to pay the school fees against her assertion that she was able to pay, and counsel’s submissions that the mother would be in a position to adduce further evidence at a final hearing. Further, his Honour himself used the term “effectively” in relation to the issue of schooling.
Final hearing
As has been indicated, his Honour after the final hearing determined that the father should have parental responsibility, that the child should live with him and spend limited time with the mother. It is uncontentious that, up until the final orders, the child had lived with the mother as her primary carer.
As to the merits of the mother’s appeal against the principal orders, it was contended on her behalf that the orders effect a significant change in the life of the child, the mother having been up to the time of the orders the child’s primary carer. Further it was submitted that his Honour placed significant weight on findings adverse to the mother’s credit in coming to his determination of the parenting issues. The Notice of Appeal against these orders asserts errors in the judge’s assessment of the mother’s credit and the weight his Honour attached to those findings. Further, the grounds assert errors in the judge’s exercise of discretion in the matter.
For the father, it was contended that the mother’s appeal against the principal orders has no prospect of success and, while contending that his Honour’s decision is correct, argues that the grounds either individually or collectively do not demonstrate merit in the appeal.
As I have indicated, the inquiry is whether there is an arguable case for appeal. The bar to demonstrating merit is set low. Notwithstanding the submissions of the father, I am not persuaded that the mother’s appeal against the principal orders has no prospects of success. I am persuaded that in relation to the appeal against the interim orders and the principal appeal, the mother has demonstrated merit such that to grant leave would not be futile.
Delay
It was argued for the mother that, in the first instance, she appealed the interim orders although that appeal was lodged on 20 January 2014 and was out of time but by a matter of days. She further sought a stay of the orders which was refused. However, the appeal was not pressed for the reasons given by the mother in her affidavit, that is because she believed that she could raise the issue of the child’s schooling at the final hearing and at that time there was no place for the child at G School.
It was argued for the father that the mother’s reason for the delay was unable to be sustained. Support for this argument was said to be found in his Honour’s reasons about determining the school issue quickly and, in particular, in
his Honour’s comments to counsel extracted above where his Honour spoke of “effectively” determining the matter finally. Thus it was contended that the mother could not have understood the issue to be still “live”.
On their face, his Honour’s comments in context are ambiguous. Further, the school issue was argued before him at the final hearing and, far from being truncated because the issue had already been determined by him on a final basis it was his Honour’s determination that the father should have sole parental responsibility that concluded the issue of schooling.
I am satisfied that the mother has provided an adequate explanation for the delay.
Prejudice
Clearly the issue of prejudice to both parties must be considered. Counsel for the father conceded that no prejudice would be suffered by the father if the leave be granted.
If the leave is not granted, I am of the view that there would be prejudice to the mother. If she is successful in the appeal against the final orders, whatever other final orders were made, she would remain bound by the December 2013 order requiring the child to attend S School.
I observe in passing that if the mother is unsuccessful in the appeal and the orders for sole parental responsibility in the father remain, he too remains bound by the school order, a position which was not accepted by counsel then appearing for the father.
I am thus satisfied that to refuse to extend the time in which to appeal the orders made in December 2013 would work an injustice on the mother and I will grant leave.
Further submissions
At the hearing of the mother’s application, neither counsel then appearing was in a position to address the merits of the mother’s appeal against the principal orders. Thus each was given leave to make submissions on that point. The submissions for the mother adverted to matters of evidence not before
his Honour and it was noted that the mother may wish to make an application to adduce further evidence on the appeal. The reference to the matters of evidence prompted a reply in submissions from the father. Whether or not the mother seeks to adduce further evidence on appeal is a matter for her, and ultimately the court hearing the appeal. I have not had regard to the matters asserted because they are irrelevant to the issue being decided.
Costs
The respondent argued that no matter what the outcome of the mother’s application, the father should have an order for costs because the mother either seeks an indulgence from the court or her application has been wholly unsuccessful.
Any order for costs in these circumstances must be considered in the light of
s 117 of the Family Law Act 1975 (Cth) (“the Act”). That section provides that subject to the application of other sections, each party to proceedings under the Act shall bear his or her own costs. Where the circumstances justify a departure from that general rule, the court may make a costs order. Section 117(2A) provides the matters which must be considered in determining what order, if any be made.
The matters relevant to the issue of costs in this case and to which s 117(2A) refers are the financial positions of the parties. It is abundantly clear from
his Honour’s reasons in both the interim and final hearings, that neither party has abundant financial resources, indeed, even on the mother’s case, her capacity to pay the child’s school fees if an order was made that she attend G School was tenuous. The father said he could not afford to pay those costs.
The outcome of the proceedings is a relevant matter. As is reflected in the father’s submissions on costs, the conduct of the mother in not pressing the appeal against the interim orders has warranted the application for extension of time.
I am of the view that the mother should pay the father’s costs of the application because, as I have said, her conduct brought about the application, which while successful has necessitated an appearance.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
27 March 2015.
Associate:
Date: 27 March 2015
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