DICKENS & DICKENS
[2015] FamCAFC 54
•14 April 2015
FAMILY COURT OF AUSTRALIA
| DICKENS & DICKENS | [2015] FamCAFC 54 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Application to adduce fresh evidence – Whether a refusal to extend time would act as an injustice to the applicant father – Whether the appeal is so devoid of merit that it would be futile to make the order sought – Where there is no satisfactory explanation of the applicant’s delay in appealing the orders – Where there are no merits in the proposed appeal – Where there would be prejudice to the respondent mother if the applications were allowed – Applications dismissed. |
| Family Law Act 1975 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479 McMahon and McMahon (1976) FLC 90-038 University of Wollongong v Metwally ( No 2) (1985) 59 ALJR 481 |
| APPLICANT: | Mr Dickens |
| RESPONDENT: | Ms Dickens |
| FILE NUMBER: | SYC | 739 | of | 2010 |
| APPEAL NUMBERS: | EA | 33 | of | 2015 |
| EA | 38 | of | 2015 |
| DATE DELIVERED: | 14 April 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 31 March 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | Not applicable |
| LOWER COURT MNC: | Not applicable |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Ms Adams of Hamish Cumming Family Lawyers |
Orders
The Application in Appeal EA 33 of 2015 filed by the applicant on 9 March 2015 to extend the time in which to file a Notice of Appeal against the orders of Rees J made on 7 June 2013 be dismissed.
The Application in Appeal EA 38 of 2015 filed by the applicant on 16 March 2015 to extend the time in which to file a Notice of Appeal against the orders of Johnston J made on 16 September 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens 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 Numbers: EA 33 of 2015
EA 38 of 2015
File Number: SYC 739 of 2010
| Mr Dickens |
Applicant
and
| Ms Dickens |
Respondent
REASONS FOR JUDGMENT
Mr Dickens (“the father”) brings two applications; in each case, he seeks an extension of time in which to appeal decisions of the Family Court.
The father and Ms Dickens (“the mother”) are parties to parenting proceedings relating to their two children, C, who was born in 2003 and B, who was born in 2001.
The parenting proceedings have been on foot for some time and there have been numerous applications filed and consequent court appearances. The children live with the mother and it is the time that the father spends with the children that has been contentious.
Relevantly, the father proposes, if leave be given, to appeal against orders made by Rees J on 7 June 2013 and against orders made by Johnston J on
16 September 2014.
It is necessary to provide some detail of the history of the proceedings to understand the context of the father’s application. Little assistance in understanding the background to the matter is given in the father’s affidavits in support of his applications. Such background as is necessary to understand the applications has been taken from the first instance file.
Background
After a contested hearing conducted over five days in August and October 2011, Federal Magistrate Sexton (as she then was) made parenting orders on
20 December 2011.
Relevantly to these applications, in order 5, her Honour ordered that the father engage in counselling with a clinical psychologist or psychiatrist of his choice for a minimum period of 12 months “… to address issues concerning his emotional health raised in the expert report of Dr [Q] and in these Reasons for Judgment”.
Her Honour further ordered that the father provide the Independent Children's Lawyer with the name and contact details of the chosen therapist and directed the Independent Children's Lawyer to provide certain documents to the chosen therapist (order 6) and by order 7 required both the father and mother to attend a Parenting after Separation course.
Until the father complied with the requirements of orders 5 to 7, her Honour by order 8 provided for the children to spend time with the father on alternate weekends, school holidays, birthdays and other important days.
By order 9, her Honour provided for the children to communicate by phone with either party at any reasonable time.
Order 10 provided for further time to be spent by the children with the father upon him demonstrating compliance with order 5.
The proceedings before Rees J on 7 June 2013
It seems that the orders providing for the children to spend time with the father were implemented for a time but then problems occurred. Further, the father filed a contravention application on 17 May 2013.
In any event, the proceedings before Rees J were, it seems, precipitated by an application brought by the mother which sought to suspend orders 8 and 10 made on 20 December 2011. The father filed an application which sought that the mother’s application be dismissed and further sought orders that the parties arrange to attend Mr R for family therapy. The orders contemplated the attendance of the children on Mr R if required.
Both the father and mother were represented before her Honour.
At the outset, it was conceded on behalf of the father that there were difficulties in the children spending time with him, although the source of the difficulties was in dispute. The father contended that it was the mother who encouraged the children not to spend time with him. In any event, it was conceded before her Honour that the appropriate course would be for the parties and C to attend Mr R for counselling.
The father’s solicitor informed her Honour that the father did not press for B to spend time with him, “…pending the recommendations of Mr [R]. However he seeks a reinstatement of the orders in respect of the youngest child, [C].” (Transcript 7 June 2013, page 2 lines 14-15).
During this hearing, her Honour was told that the mother had engaged a therapist, Dr F, to work with both children. Dr F was recommended by the single expert in the hearing before Federal Magistrate Sexton. At that time, the children had been attending Dr F approximately monthly for more than twelve months.
Dr F had prepared a short note of her work with the children that counsel for the mother sought to tender before her Honour. The tender was objected to by the father’s solicitor who, while conceding that the children “may be having difficulties” said that neither has a “diagnosable mental illness”. (Transcript
7 June 2013, page 7 lines 43-44). The father’s solicitor further objected because the father had not been involved in the therapeutic process with the children. That document was admitted over those objections.
On the basis of the agreement by the parties that they and the children would attend on Mr R for counselling, her Honour made the following orders:
1. That orders 8 and 10 of the orders made 20 December 2011 be suspended.
2. That the father spend time and communicate with [B Dickens], born … 2001 (“[B]”) as agreed between the parents.
3. That the mother use her best endeavours to encourage [B] to spend time with and communicate with the father.
4. That the father spend time with [C Dickens], born … 2003 (“[C]”) as follows:
a.Each Wednesday from after school or 3.15 pm until 7.30 pm with the father to collect [C] from school at the commencement of time and return [C] to the mother’s residence at the conclusion of time;
b.Each Saturday from 9.00 am to 8.00 pm with the mother to deliver [C] to the father’s residence at the commencement of time and the father to return [C] to the mother’s residence at the conclusion of time;
c.That when [C] is returned to the mother’s residence he is to be delivered by the father to the front entrance of the mother’s home and only the parties shall be in attendance.
Her Honour suspended the telephone contact between the father and C which had been provided for in order 9 made by Judge Sexton on
20 December 2011.
Orders 5 and 6 made by Rees J related to ensuring that the child C attended his regular sports training and events.
Her Honour also ordered:
7. That each of the parties forthwith do all acts and things necessary to make arrangements to attend upon Mr [R] of the [Counselling Service] for family counselling.
She further ordered that certain documents be provided to Mr R for the purposes of the counselling sessions.
Her Honour restrained the mother from taking the children for further attendances on Dr F.
It is against these orders that the father seeks an extension of time to appeal.
Orders of Johnston J of 16 September 2014
On 18 March 2014, in an application to Johnston J, ex parte the father, the mother sought and obtained an order for the recovery of C from the father. As part of the orders made on that day, his Honour suspended the operation of order 4 made by her Honour Rees J on 7 June 2013, that is, the order providing for the child C to spend time with the father.
Those proceedings were then adjourned.
The matter was again before Johnston J on 16 September 2014 and he ordered:
1. That pending further order there be no time spent between the child [C Dickens] born … 2003 and his father.
His Honour further made orders that provided for the parties to ensure that both children attend on Mr R for counselling.
His Honour varied orders made on 4 September 2014 to enable C to speak to the father by telephone on the child’s birthday.
The father’s application for leave to appeal is against these orders of
Johnston J.
Principles
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.
As part of a consideration of the application, it is necessary to consider whether the making of the order sought would be futile and thereby 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.
Delay
In this respect, both applications can be considered together. In neither affidavit in support of the application did the father indicate any reason at all for the delay in bringing the appeals against the orders. It is to be observed that in the case of the orders of Rees J, the application is some twenty one months out of time whereas the application in relation to Johnston J’s orders is six months out of time.
In his oral submissions, the father said that he was unfamiliar with the appeal process and was not advised by his then solicitor about the possibility of appealing against Rees J’s orders. He said that he was not thereafter represented by a lawyer and did not consider an appeal against Johnston J’s orders. Further, he said that he brought contravention applications against the mother for asserted breaches of the orders believing that if successful the consequential orders would bring the litigation to an end. It is difficult to understand how he thought that contravention applications could be effective as he hoped.
However, these circumstances were proffered in explanation for the delay in bringing the appeals within the time provided by the rules.
It is entirely clear that the father is no stranger to litigation in this court. Further, as his submissions on the application before the Full Court demonstrate, he is capable of researching authority. I do not regard his explanation for the delay as being in any way satisfactory and, coupled with the magnitude of the delay, on this basis alone would reject the applications.
Merits of the appeal
Rees J
The father’s affidavit in relation to the proposed appeal against the orders of Rees J contend that the mother’s securing of the assistance of Dr F to see the children was “a trap” using the “tainted” evidence of Dr F. Developing the theme that Dr F’s report (tendered to her Honour in the hearing) was tainted, the father contended that the purpose was to alienate him from his children. Despite the florid language, it seems that the thrust of this part of the proposed appeal is that Dr F’s report ought not to have been accepted into evidence by her Honour. The bases asserted for the error are misconceived and confuse the rules relating to an adversarial expert with those relating to a report from a treating therapist.
The balance of the affidavit contains unsupported assertions and accusations.
The proposed grounds of appeal challenge her Honour admitting the report from Dr F; contend that her Honour’s orders were made in reliance on the report; challenge her Honour’s decision to suspend the orders made in December 2011; assert that her Honour failed to attribute weight to a report of a psychological assessment of him attached to his affidavit filed before her Honour; failed to give proper weight to orders made by Le Poer Trench J in September 2012; failed to give weight to other matters contained in his affidavit filed in the proceedings and failed to give weight to reports produced on dates after the hearing.
While the determination of merit for these purposes is that the appeal is arguable, none of the grounds demonstrates any merit. The matters of challenge raised by the father were not raised before her Honour by his legal representative and thus the father ought not be permitted to raise the matters on appeal (see University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481).
However, potently, her Honour’s orders as to the time to be spent by C with the father have been overtaken by the orders of Johnston J on 16 September 2014 which suspended her Honour’s orders for time between the child and the father. This point was raised in oral argument by the solicitor for the mother and the father contended that while that might be the case, her Honour’s orders in relation to the counselling by Mr R remain on foot and the father sought to challenge them, contending in his affidavit that the order for that counselling was “based on lies”. It is to be noted that the order for counselling was made with the consent of the father and it was his application before her Honour.
Thus there is no merit in the father’s proposed appeal against her Honour’s orders.
Johnston J
Turning then to the proposed appeal against Johnston J’s orders of
16 September 2014, it must be first noted that the orders made on that day as relate to the suspension of the time spent between C and the father was a continuation of his Honour’s order made on 18 March 2014 in respect of which no appeal has been brought.
The affidavit in support of the application asserts that the orders made on
16 September 2014 were based on an assertion of the mother that the children required psychological support. In particular, the father contends that
his Honour was told that C’s school had raised concerns about his psychological welfare when that was not the case. Although the mother’s solicitor conceded that the concern was expressed about B not C, the father argues that his Honour’s orders made on that day for the continuation of Mr R as the children’s therapist rested on deliberate misinformation.
Neither the proposed grounds nor the matters contained in the father’s affidavit persuade me that there is any merit at all in the appeal.
For this reason the applications should be dismissed.
Prejudice
It was argued for the mother that there would be considerable prejudice to the mother if the applications were granted in that it would involve further proceedings before the court. It was submitted that there had been some seventeen applications brought in as many months. It is to be expected too that further litigation adds to the stress and anxiety in what is already a difficult situation between the parents of these children.
The father submitted that if the appeals were not allowed he and the children would be prejudiced because their relationship has been severed by the orders. There is no doubt that the father is not seeing either B or C. An appeal, even a successful appeal, against either set of orders will not alter that situation.
Thus I am satisfied that strict compliance with the rules will not work an injustice on the father.
The applications will be dismissed.
No costs were sought, and none will be ordered.
I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
14 April 2015.
Associate:
Date: 14 April 2015
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