Dickens and Carey
[2020] FamCAFC 100
•29 April 2020
FAMILY COURT OF AUSTRALIA
| DICKENS & CAREY | [2020] FamCAFC 100 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file a Notice of Appeal – Where there is an adequate explanation for the delay – Where the appeal is not wholly without merit – Application allowed – Order extending time to file a Notice of Appeal – Order for the father to pay the mother’s costs. |
| Family Law Act 1975 (Cth) s 60CC and s 117 Family Law Rules 2004 (Cth) r 1.14 |
| Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 House v The King (1936) 55 CLR 499; [1936] HCA 40 |
| APPLICANT: | Mr Dickens |
| RESPONDENT: | Ms Carey |
| FILE NUMBER: | BRC | 8345 | of | 2013 |
| APPEAL NUMBER: | NOA | 6 | of | 2020 |
| DATE DELIVERED: | 29 April 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 25 March 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 October 2019 |
| LOWER COURT MNC: | [2019] FCCA 3001 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms McLennan |
| SOLICITOR FOR THE APPLICANT: | Whitehead Crowther Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Crowley Greenhalgh Solicitors |
Orders
The father’s Application in an Appeal filed 10 January 2020 be allowed.
The time for filing a Notice of Appeal from the orders of the primary judge made 23 October 2019 be extended to 4.00 pm on 6 May 2020.
Within one-hundred-and-eighty (180) days, the father pay the mother’s costs in the sum of $4,619.07.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Carey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS |
Appeal Number: NOA 6 of 2020
File Number: BRC 8345 of 2013
| Mr Dickens |
Applicant
And
| Ms Carey |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 23 October 2019, the primary judge made final parenting orders under which the parties’ then 12 year old only child, X (“the child”), was to live with Ms Carey (“the mother”) who would also have sole parental responsibility for her. Although there was a moratorium imposed on Mr Dickens (“the father”) from spending time with the child until 31 December 2019, thereafter he would spend alternate weekends and half school holiday time with her, together with time on special days. There were also a number of orders as to specific issues, for instance, in relation to the child attending a particular school, and not allowing the child to receive counselling or therapy from a named treater.
Although instructed to appeal from those orders, the father’s solicitor failed to do so within the 28 days in which it could be done as of right, a matter which was brought to his attention when he sought to file the appeal on 22 November 2019.
In consequence, on 10 January 2020, the father filed an Application in an Appeal seeking to extend time in which to file the Notice of Appeal. The mother opposes that application. However for reasons which follow, the application ought succeed.
BACKGROUND
The mother is an allied health professional in her early 40’s. The father is a retired member of the armed forces in his mid-40’s. The parties commenced cohabitation in 2005, and separated in 2012, when the child was five years of age.
A trial of parenting proceedings between the parties in 2015 resulted in orders being made for equal shared parental responsibility, and for the child to live with the mother, but spend progressively increasing time with the father, culminating in six nights per fortnight, together with school holiday time, and time on special days.
By then the father had re-partnered, to which relationship a child was born in November 2015. At that time both parties were residing in Brisbane, however in June 2017 the father moved to the F Region, although his time with the child continued unchanged under the 2015 orders.
In February 2018 the father retained the child in his care, and subsequently changed her school. The mother then commenced these proceedings, and on 22 June 2018, interim orders were made returning the child to the primary care of the mother, and for the father’s time with the child to resume in accordance with the 2015 orders.
As at the time of the hearing before the primary judge, pursuant to the 2015 orders, the child was spending eight nights per fortnight with the mother, and six nights a fortnight with the father, which required her to travel from the F Region to her school in Brisbane on the school days when she was with the father.
The hearing of the trial before the primary judge spanned three days, and the primary judge’s reserved written reasons ran to 107 pages. Importantly, the primary judge formed the view that the child’s expression of her wishes, and indeed her articulation of her concerns when she was in the mother’s care, were largely the product of, and instigated by, the father. Ultimately at [190] her Honour said:
In accordance with previous findings, I find that little to no weight can be placed on [the child’s] views, with the evidence supporting that the father is still influencing [the child] to create false beliefs for the child.
Further, at [208], her Honour said “I find that the parties have no ability to co-parent and this has made the shared care arrangement so difficult for [the child].” Additionally, her Honour found at [215] that it was likely that the father would be further non-compliant with court orders in the future.
At [222]–[224] her Honour continued:
222. I find that [the child] is not at risk of harm of abuse, either physical or psychological, from the mother.
223. I find that given the father’s actions, his deceptions and mistruths as identified in previous findings that the child is at risk of harm of emotional abuse from the father.
224. This considerations therefore supports orders whereby the child live with the mother and spend time with the father so as to minimise that risk of harm.
(As per the original)
Finally at [262]–[264] her Honour concluded as follows:
262. The family report writer opines “if the Court comes to a view that [the child’s] negativity and ill-feeling towards the mother is not a realistic estrangement, but instead is an extreme alignment fostered by the father; I recommend the Court quickly returns [the child] to the mother’s care” ([149] first family report).
263. Having made various findings against the father and based on those findings I make the finding that “[the child’s] negativity and ill-feeling towards the mother is not a realistic estrangement, but instead is an extreme alignment fostered by the father”.
264. I therefore find that it is in the child’s best interest to live with the mother.
(Emphasis in original)
RELEVANT LEGAL PRINCIPLES
Rule 1.14(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that “[a] party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.”
Whilst there are no criteria specified either in the Family Law Act 1975 (Cth) (“the Act”) or the Rules relevant to the exercise of that jurisdiction, in Gallo v Dawson (1990) 93 ALR 479 at 480–481, McHugh J said:
[A] notice of appeal against his Honour's judgment had to be lodged within 21 days of the date thereof: O 70, r 3 of the Rules of the High Court (the Rules). 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; 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:
“The 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.”
(As per the original)
The following factors are established by the authorities as being potentially relevant:
·The nature and history of the proceedings;
·The length of the delay, and any explanation for the same;
·The merits of the appeal; and
·Any prejudice or other consequence for the respondent if leave is granted.
NATURE AND HISTORY OF PROCEEDINGS
The proceedings in question were the second contested trial in relation to the appropriate parenting orders for the child. It is apparent that the parties have a long history of acrimony, and have had significant difficulty in co-parenting the child.
LENGTH OF AND EXPLANATION FOR DELAY
In the material before me was an affidavit filed by the father’s solicitor, in which he said that he confused the notion of 28 days in which to appeal as of right, with the notion of a calendar month, and labouring under that misapprehension, he believed that the Notice of Appeal could be filed by Friday 22 November 2019 (Father’s solicitor’s affidavit filed 13 March 2020, paragraph 4).
The delay in seeking to file the Notice of Appeal was only two days. No serious criticism was made of the father’s solicitor’s mistaken belief, which I accept was genuinely held, evidenced by the fact that he did seek to file the Notice of Appeal on the day when he believed time expired.
No real issue was made about the explanation for delay in bringing the Application in an Appeal to extend time to file a Notice of Appeal, largely involving some holiday commitments on the part of the father, and the Christmas break.
I am satisfied that there is a reasonable explanation for the very slight delay which this application involves.
MERITS OF THE APPEAL
The draft grounds of appeal in the Notice of Appeal attached to the father’s affidavit filed 10 January 2020 extend to some 11 grounds, as follows:
1.The trial Judge fell into error as the outcome does not reflect the best interests of the child being the paramount consideration which is required pursuant to section 60CA of the Family Law Act 1975 (“FLA”)
2.The trial Judge erred by placing more weight on section 60CC(2)(a) FLA and the need for the child to have a meaningful relationship with both parents, in circumstances where section 60CC(2)(b) FLA and the evidence of the need to protect the child from harm was not properly considered and should have otherwise prevailed in accordance with section 60CC(2A) FLA.
3.The trial Judge failed to consider section 60CC(2)(b) FLA and the need to protect the child from family violence and exposure to family violence, including whether or not there had been any family violence, involving the child or a member of the child’s family pursuant to section 60CC(3)(J) FLA.
4.The trial judge largely ignored any evidence of the escalating conflict between the mother and the child, particularly as expressed by third party witnesses, including the family consultant, a psychologist and the school counsellor.
5.The trial judge erred in failing to consider/placing no weight on the views of the child as it related to the following:
(a)Concerns expressed by the child in relation to an escalating conflict with the mother, while in the mother’s care.
(b)Concerns expressed by the child to the psychologist and the family report writer about the mother’s physical discipline and aggression.
(c)Concerns expressed by the child to the child protection investigation unit, including about running away and other issues, whereby such concerns were shared by the family consultant and school counsellor.
(d)The child’s wishes to live with the father and her siblings, attending a certain school for high school with her friends and to spend time with the mother.
(e)Views that the child expressed which were contrary to the case of the mother, or otherwise expressed independently or free form any possible influence by either of the parents.
Whereby at all material times the child’s views herein above were admitted into evidence unchallenged.
6.The trial judge failed to consider entirely section 60CC(2)(g) and the maturity of the child in circumstances where the child was 12 years of age, expressing very strong views which were long-standing and conceded by the mother.
7.The trial judge fell into error by placing insufficient weight on section 60CC (3) (a) & (b)(ii) and the nature of the child’s relationship with the father’s family, including siblings and other extended family members and the consequences of the separation.
8.The trial judge incorrectly applied the “Friendly Parent” principle in deciding the child should live with the mother because the mother was more likely to encourage and facilitate a relationship between the child and the father.
9.The trial judge otherwise erred in exercising the discretion by acting upon a wrong principal; allowing extraneous or irrelevant matters to guide or affect the decision; and by not taking into account some material considerations relevant to section 60CC (2)(b) and 60CC (3).
10.The findings that the child’s mental health concerns were only escalating while in the exclusive care of the care of the father were not supported by the evidence and not reasonably open on the evidence;
11.The trial judge otherwise made multiple errors of fact and law, regarding key issues and refashioned or ignored the evidence including whereby the evidence was uncontroversial and/or unchallenged.
(As per the original)
Given that this is an appeal from a discretionary judgment, the principles espoused in House v The King (1936) 55 CLR 499 at 504–5 are engaged. There the Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Whilst that suggests that many of the grounds of appeal, especially those which challenge the weight given to aspects of the evidence, have little chance of success, others are couched in a different way. For example, Ground 10 asserts an erroneous finding of fact, said not to be reasonably open on the evidence (as to which, see Fox v Percy (2003) 214 CLR 118 at 125–8 and 146–7), Ground 6 asserts a failure to have any regard at all to an additional consideration (s 60CC(3)(g) of the Act) and Ground 3 asserts a failure to consider s 60CC(2)(b) of the Act (and inferentially, therefore, properly apply s 60CC(2A) of the Act).
Further, whilst some grounds challenge that the primary judge did not sufficiently engage with the evidence relevant to the risk to the child when in the mother’s care, as ultimately pressed by counsel for the father before me, it was said Ground 4 claims that the primary judge failed to adequately consider some of the more extreme actions of the child (for instance, isolating herself at her school), when assessing the risk of harm which the mother’s household posed to her.
Whilst the several difficulties which the father’s appeal would undoubtedly encounter cast significant doubt as to the likelihood of it succeeding, I cannot conclude that it is wholly without merit. In my view, it enjoys some, albeit limited, prospects of success.
PREJUDICE OR CONSEQUENCE FOR MOTHER IF EXTENSION GRANTED
It is unfortunate that these parties have been engaged in litigation relating to the child for many years. Inevitably, allowing the appeal to be instituted will further protract that conflict, at least until the appeal is determined, and if it is successful, then until any re-hearing is concluded, and any appeal therefrom also determined.
EVALUATION AND OUTCOME
There is an adequate explanation for the slight delay in seeking to file the Notice of Appeal. The appeal, although problematic, cannot be said to be wholly devoid of merit. That said, the parties have been in protracted litigation in relation to the appropriate parenting orders for the child for many years, and allowing the appeal to be instituted out of time will inevitably extend that even further.
Although with some reluctance, I conclude that weighing all of those matters in the balance tells slightly in favour of granting an extension of time in which the father may bring his appeal. I will therefore extend the time in which the appeal may be brought to seven days from the date of these orders.
COSTS
In the event that his application succeeded, the father sought that the question of costs be reserved to the Full Court of the Family Court of Australia hearing the appeal, whereas counsel for the mother sought an order that the father pay her costs in the sum of $4,619.07. The father opposed such an order, and whilst repeating his suggestion that that costs should be reserved to the Full Court of this Court hearing the appeal, said that his income was limited to a pension derived from his former service as a soldier, of about $800 or $900 per week.
I am not persuaded that the question of costs should be reserved. This application is quite a separate event, and it is unlikely that the court ultimately hearing the appeal will be in any better position to determine the question of costs than I presently am.
Turning then to the considerations under s 117 of the Act, it appears as though the mother is likely in a somewhat better financial position than the father, given that she is in full time employment, and the father is on a military pension.
The father has been successful in his Application in an Appeal, but that application was necessitated by virtue of his failure to comply with the rules. He has sought an indulgence from the court, albeit ultimately successfully. It is counterintuitive for the costs of the mother occasioned by his error, not to be met by him.
Weighing those factors in the balance to my mind tells in favour of an order for costs against the father. It was not contended that the Schedule of Costs filed by the mother on 16 March 2020 was excessive, and in any event I note that it was nearly $1,000 less than the Schedule of Costs filed 20 March 2020 provided by the father’s solicitors.
I will therefore order that the father pay the mother’s costs in the sum of $4,619.07. Given his restricted income, I propose to permit the father six months to pay.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 April 2020.
Associate:
Date: 29 April 2020
0
7
2