DUKE-RANDALL & RANDALL
[2013] FamCAFC 206
•18 December 2013
FAMILY COURT OF AUSTRALIA
| DUKE-RANDALL & RANDALL | [2013] FamCAFC 206 |
| FAMILY LAW – APPEAL – application for extension of time. |
| Family Law Act 1975 (Cth) |
|
| APPELLANT: | Ms Duke-Randall |
| RESPONDENT: | Mr Randall |
| INDEPENDENT CHILDREN’S LAWYER: | Katherine Crawford |
| FILE NUMBER: | PAC | 2327 | of | 2011 |
| APPEAL NUMBER: | EA | 183 | of | 2013 |
| DATE DELIVERED:: | 18 December 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 18 December 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 July 2013 |
| LOWER COURT MNC: | [2013] FamCA 559 |
REPRESENTATION
| THE APPELLANT: | Ms Duke-Randall in person |
| THE RESPONDENT: | Mr Randall in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Katherine Crawford |
Orders
The application in an appeal filed 17 December 2013 will be taken to be an application for extension of time in which to appeal orders made by Collier J on 18 July 2013
Dismiss the application for extension of time to appeal the orders of Collier J of 18 July 2013.
Make no order as to costs
IT IS NOTED that publication of this judgment by this Court under the pseudonym Duke-Randall & Randall has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 183 of 2013
File Number: PAC 2327 of 2011
| Ms Duke-Randall |
Appellant
and
| Mr Randall |
Respondent
and
Katherine Crawford
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ms Duke-Randall (the mother) and Mr Randall (the father) are engaged in parenting proceedings in this court in relation to their two children, the child J and the child P. A principal issue between them is whether the children should be vaccinated.
The hearing of the substantive proceedings has not taken place. It was listed for hearing commencing 11 December 2013 for several days. The hearing dates have been vacated to allow the mother to appeal against a refusal to grant her legal aid. It seems that when the matter was last before the court, Hannam J determined that the issue of whether the children are vaccinated is to be heard as a separate issue on 29 January 2014.
On 18 July 2013 Collier J made procedural and interlocutory orders in the matter, plainly with the intention of preparing the matter for trial.
By application in an appeal filed on 17 December 2013 the mother seeks leave to appeal against those orders notwithstanding that the time for filing the appeal has passed.
The mother’s application as filed does not seek an order extending time for the filing of the appeal. However for expedience and with the consent of both the mother and father, I determined to treat her application as an application for extension of time to file the appeal.
The mother also filed an affidavit in support of her application and a draft notice of appeal which she proposes to file if an extension of time is granted.
Both the mother and father represented themselves on the application. An Independent Children's Lawyer has been appointed in the proceedings and she appeared but did not seek to be heard on the mother’s application. The father opposed the application.
This application was brought on urgently. The mother agrees that until this issue is determined, neither the hearing of the separate issue of vaccination or the substantive issues between her and the father can proceed.
When the matter was called on, the mother sought an adjournment of the application because, she said, she had had insufficient time to research the law relevant to her application.
I pause here to note that not only has the mother filed her application for leave to bring the appeal out of time, she has, as is usual in these applications filed a notice of appeal which she would file if leave be given. Further, the grounds of appeal in that notice are both extensive and while somewhat discursive make her arguments in relation to each, quite clear. Further, it is seems that the mother is aware that, even if leave is granted to permit the filing of the appeal out of time, because the orders appealed from are interlocutory in nature, leave is required from the full court to bring the appeal.
In all of the circumstances I determined that the application should proceed.
To assist the mother and the father, both of whom represented themselves, I provided copies of the well-known authorities relevant to this application, namely Adam P Brown Male Fashions Pty. Limited v Phillip Morris Inc [1981] 148 CLR 170 as to an appeal against an interlocutory decision and Gallo v Dawson (1990) 93 ALR 479 as to extensions of time generally. An Independent Children's Lawyer has been appointed in the matter but was given leave to withdraw from the hearing. The Independent Children's Lawyer’s submission was that to urge the court to the view that the matter should hasten to a final hearing in the children’s interests.
The orders of Collier J
His Honour ordered:
1. That so far as leave is necessary, I grant leave to the father’s solicitor Ms Schrale and counsel Mr Sansom to appear for the father in these proceedings today.
2. That I grant leave to the mother to rely upon her affidavit sworn and filed 17 June 2013 which was filed late in respect of trial directions made previously in these proceedings.
3. That I am satisfied that this is not a case to which the special medical procedure Rules of this court apply
4. That Dr [K] shall remain as the Chapter 15 expert in these proceedings
5. That Dr [L] be entitled to file an affidavit, on the mother’s assurance that he will be available for cross examination.
6. That Dr [B] be entitled to file an affidavit, on the basis that she be available in a manner approved by the husband’s legal representatives to give evidence.
7. That Dr [S] be entitled to file an affidavit, on the basis that he be available in a manner approved by the husband’s legal representatives to give evidence.
8. That the mother’s witnesses shall be called at her expense, and the testing that the mother seeks be carried out upon the children shall be conducted during the mother’s time with the children.
9. That Dr [C] shall be permitted to carry out on the children the following tests:- Biocreen Faecal Microbial Analysis, DAN SNPS, Serology Blood Test T cell subsets and two tests involving the analysis of urine. Doctor shall not be permitted to carry out food testing on the children.
10. That Dr [C] carry out and complete the testing that I have specified by no later than Friday 13 September 2013.
11. That by no later than close of business on Friday 22 October 2013, Dr [C] provide to the legal representatives of the parties, such as they are, and the Independent Children's Lawyer a report setting out the results of her testing.
12. That by no later than close of business on Friday 8 November 2013, Doctors [K] and [C] shall confer and thereafter shall prepare a joint statement setting out areas in which they are in agreement, the areas in which they cannot agree and the reasons for such disagreement.
13. That each party shall pay on half of the costs of Doctors [K] and [C] in respect of the preparation of their joint report or statement, such payment to be made to the Independent Children's Lawyer no less than seven (7) days prior to the date contemplated for any conference of experts.
14. That in respect of the costs of the witnesses in the United States, the costs of the testing to be carried out by Dr [C] and any costs of any subsequent report by Dr C shall be borne by the mother in the first instance.
15. That I reserve the final issue of whether the father should make any contribution in respect of those costs to be determined by the trial judge.
16. That I list the matter for hearing for seven (7) days commencing on Monday 2 December 2013 before her Honour justice Hannam.
17. That I list the matter for mention before the trial judge justice Hannam on Thursday 14 November 2013 at 10 am to ascertain that the matter is ready and able to proceed in all respects on 2 December 2013.
18. That I grant liberty to either party or the Independent Children's Lawyer to relist matter upon giving seventy two hours (72) to the other party and to the Independent Children's Lawyer.
I observe that orders 16 and 17 relate to the listing of the matter and the days to which the orders refer have now passed. It would seem that and any appeal against these orders would be moot. However, the mother argued that the orders nonetheless should remain the subject of an appeal if leave is given.
Of the orders made by Collier J, only orders 3, 4, 6, 9, 11, 16 and 17 are sought to be appealed.
Reasons of Justice Collier
His Honour delivered brief reasons to support the orders made on 18 July 2013.
He said:
2.The mother is vehemently opposed to vaccination, at least until she says she has the comfort of certain tests that she wishes be carried out on the children by a Dr [C]. ... In this case, the mother is firmly of the view that the evidence of Dr [C], having completed the tests that she posits, will be essential for a determination of this matter.
His Honour considered the mother’s submission that two further witnesses,
Dr B and Professor S had relevant evidence to give. Both of these witnesses live in the United States of America. He observed that counsel for the father had submitted that his Honour would only allow the calling of further witnesses if his Honour was of the view that the witnesses would assist the court in determining the issues before it.It is clear that at the time of the judgment, his Honour had not seen proofs of evidence of either of those people. [3] His Honour said that it was difficult to know whether their evidence would be of assistance without knowing what it is that they would say.
As to the manner in which these overseas witnesses would give their evidence, his Honour observed at [4] that the father’s position was that he did not object to the witnesses giving evidence but asserted that each should be available personally to do so. The father’s counsel submitted that neither should be permitted to give evidence by telephone.
His Honour said [5]:
… To my mind, in a case such as this, unless they are in agreement, there is much to be said for not having that evidence given by telephone. One has regard to the fact that documents might need to be produced.
However his Honour determined that each witness should prepare an affidavit of the evidence each would give in the proceedings.
His Honour said at [6].
At this stage, I am of the view that I ought allow Professor and Doctor to each file an affidavit in proper form. However, if those affidavits are to be relied upon, the witnesses will have to be available in a manner acceptable to the father’s legal representatives, to give evidence as required at the final hearing. …
His Honour then turned to the tests which the mother argued were vital to be performed before there could be any determination of the principal issue. He said at [8]:
... I am concerned that these tests are both invasive and possibly unnecessary. However I am satisfied that in all the circumstances of this particular case, the mother should have the opportunity to carry out some of those tests. …
He continued and said that he would not order food testing to be carried out but indicated that he would order the other tests sought be done.
His Honour said at [9] in relation to the tests to be conducted by Dr C:
… I will order that Doctor thereafter provide a report, for the assistance of the Court, but as an adversarial expert. I order that Dr [C] and
Dr [K], as experts, confer in relation to the evidence of each of them, and produce a document setting out, firstly the areas in which they are in agreement and secondly, the areas in which they are in disagreement, and the reasons why.His Honour reserved the question of contribution to the costs of the tests and the experts in the United States to the trial “when the efficacy of the evidence is known”.
Appeal from Interlocutory orders
The orders from which the mother seeks to appeal, if leave be granted are plainly interlocutory and procedural. Thus even if leave to extend the time in which to bring an appeal is given, it would be necessary for her to demonstrate circumstances that warrant the granting of leave to appeal. That is she must demonstrate that Collier J has made an error of principle and/or there is a substantial injustice to one of the parties.
The high court said at [177] in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc and Anor [1981] 148 CLR 170:
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties.
Turning now to the application for leave to extend time in which to file the appeal, the principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 and in the judgment of McHugh J at 480, his Honour 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. 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)
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 what must be clearly shown before an applicant is denied the right to have his or her appeal heard, is that the appeal would fail.
Reason for the delay
The orders sought to be appealed were made on 18 July 2013; some 17 weeks have since passed. The time for filing the appeal expired 28 days after the orders were made.
In explaining the delay in bringing the appeal the mother asserts that she was not informed that she could, with leave appeal against interlocutory and procedural orders. When she became aware that she could, she was then told that the orders could be appealed after the final hearing of the substantive issue.
The mother agreed that between 14 October and 2 December 2012 she was in receipt of a grant of legal aid and had a solicitor acting for her. She further agreed that sometime in late October she understood that she could appeal Collier J’s orders and in late November says that she was advised to wait the outcome of the substantive proceedings.
Quite why she later acted against the advice and sought to bring the appeal was not clear. In her affidavit in support of the application she said that events occurred on 10 December 2013 before Hannam J and, as a result she realised that there were errors or ambiguities in orders 9 and 11 made by Collier J and it was thus necessary for her to appeal against the making of them. Orders 9 and 11 refer to tests to be carried out by Dr C, an expert to be relied on by the mother.
On 10 December 2013, her Honour ordered:
7. I make a finding that the affidavit prepared by Dr [C] dated
13 November 2013 does not comply with the order of Collier J of 18 July 2013
8. Dr [C’s] affidavit dated 13 November 2013 is struck out.
The mother contended that Hannam J concluded that order 11 required Dr C to only provide her test results not prepare a report on those results and thus the evidence could not be relied on by the mother.
I note that there is no appeal from this or any other order made by Hannam J on 10 December but understand from the mother’s submissions that this order perhaps was that the catalyst for seeking an extension of time to appeal against the orders of Collier J.
While not particularly compelling, especially in light of the mother’s concession that she was, at least for a time, in receipt of a grant of legal aid and legal advice, I accept that the mother has provided some explanation for the delay in bringing the appeal.
Merit of the proposed appeal
The 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 and I accept that I have not had the benefit of full argument on the points.
I will therefore to consider the proposed grounds of appeal in relation to the orders of 18 July 2013.
Order 3 The nature of the proposed procedure
In relation to order 3, the mother argued that the order amounted to a declaration by Collier J that the substance matter of the dispute was not a “special medical procedure” as defined by the Family Law Act. She contends that when he made this finding was made in circumstances where his Honour did not have sufficient evidence before him on which to make this finding and, further did not hear from her on the question of whether or not the matter could be so described.
In early April 2013, the mother sought an order from Collier J that the father’s proposal that the children be vaccinated be treated as if it was a special medical procedure. The trial judge ordered that the mother serve her submissions on that issue on the Human Rights Commission and the Department of Human Services within three weeks and to enquire of those bodies whether either or both wished to appear on the matter and be heard. The mother says that because of the extensive nature of the submissions, she could not have them prepared and sent to the relevant bodies within the time ordered and it was not done until 16 July 2013. When the trial judge enquired on 18 July 2013 whether the organisations wished to appear or take part in the proceedings, the mother was not in a position to tell him.
She submitted:
His Honour then concluded, based on the applicant’s said reply, that the HRC had decided to not support the applicant’s application.
I first observe that there is nothing to support this submission in his Honour’s reasons or his orders.
Further, the context in which his Honour made the order provides compelling evidence that he had not formed a concluded view about the nature of the proceedings but was concerned with making procedural directions to have the matter prepared for trial. He had in his reasons, expressed concern at the delays which had already occurred in bringing the matter on for hearing.
Not only the context in which his Honour’s order was made but its terms clearly refer to the rules of court.
Whether or not, in the result it is found to be a special medical procedure is a matter to be determined and argued before the trial judge.
It is important to note that ultimately it will be a matter for the judge hearing the proceedings to determine not only the nature of the hearing but the sufficiency of the evidence. Trial judges in children’s matters have a very wide discretion and it is open to the judge hearing the matter to consider whether further evidence is required and if so, how is it to be received. Thus, if before the trial commences, either Human Rights Commission or Department of Human Services wish to appear and make submissions, it is open to the trial judge to permit that course. To the extent that any rule of the court might suggest an impediment to that course, the trial judge has the power to dispense with compliance with all or any of those rules.
Order 4 – Dr K as single expert witness
The mother argued that the trial judge was incorrect when he said in his reasons that, at an earlier hearing, Dr K had been appointed as a Chapter 15 expert. Whether or not this is the case, she also conceded that by his orders of 18 July 2013, Collier J either confirmed or made an order appointed
Dr K as the single expert in the matters.The mother’s argument is that Dr K does not have the necessary expertise or qualifications to offer an opinion on the subject matter of the dispute between the parties, further, she asserts that her opinion is tainted by bias and conflict of interest.
These arguments, if they are to be made, are matters for the trial judge either on the basis of submissions or after cross examination of the doctor. Whether
Dr K’ opinion is accepted, and if it is, what weight or importance is placed on it is a matter for the trial judge. No error has been demonstrated in relation to this order.The submissions on this point refer to a cost of calling Dr K as being in the order of $5000. The mother said that was the sum said to be referable to the doctor’s fee in coming to court. The mother readily agreed that this cost had not been imposed on her. What fees are paid to witnesses and how any fees are apportioned are matters for the trial judge.
Orders 6 and 7 relating to the evidence to be given by Dr B and Professor S
The mother does not argue any error attends his Honour’s order that her two proposed witnesses should provide affidavits of their evidence but argues that it was in error to make the filing of the affidavit conditional on the witness being available to give evidence in a form approved by the husband’s legal representatives. She argued that the order effectively precluded her from having the assistance of these witnesses because she did not have the funds necessary to bring them to Australia to give evidence in person.
The mother further argued that the witnesses could reasonably give evidence by electronic means.
It seems that the mother did not seek to relist the matter before Collier J to argue that the order should be amended so as to enable her to provide the evidence without having to bring the witnesses to Australia.
While other judges may not have made an order in those terms, it was an interlocutory order that was open to him to make. I observe that it is open to the mother to make submissions to the trial judge that orders different from those made by Collier should be made so as to enable her to call these witnesses.
Order 9
In the course of argument the mother said that his Honour appears to have omitted to order a particular test to be conducted by Dr C. She submitted that his Honour asked her to read to him the tests which she contended should be conducted on the advice of Dr C. She said that his Honour failed to order certain blood tests be conducted. The tests, which were not included in the order, were not otherwise specifically rejected by his Honour as he did with a food test to which he referred in his reasons.
It is probable, given the particularity of his Honour’s orders and his reasons on the issue that he omitted including the blood test to which the mother refers rather than determining that it should not be conducted.
However, this slip is the very subject matter which could have been brought to his attention pursuant to the leave to relist given in order 18.
Order 11
The mother contends that Collier J made an error on the record in that consistent with his reasons, he ought to have included the word “report” in the terms of the order thereby giving effect to his reasons that Dr C should provide her test results and confer on her report with Dr K.
Again, this is a matter that should properly have been brought to his Honour’s attention through the leave to relist given.
Orders 16 and 17
As I have already indicated, despite the fact that the dates to which these orders relate have passed, the mother maintains that his Honour was wrong in law to make them.
The argument on this point concerns an assertion that in making these orders Collier J “demonstrated bias, failed in his duty of care at law and/or erred in law”
It was said that his Honour applied an “unduly rushed” timetable for the preparation of affidavits and reports.
Neither in her oral argument nor in her written material was the mother able to point to any actual prejudice that occurred because of what she said was a tight timetable. She did say that although Dr C had prepared a report on the test results, she and Dr K had not prepared the joint statement of points of agreement and disagreement before the matter was before to Hannam J. It is clear that as a result of Hannam J’s order, whether a joint report of the doctors was prepared, the issue is now moot because Hannam J has rejected Dr C’s report.
It thus seems that whether or not the time for preparation of the matter ordered by Collier J was “tight” or “rushed” circumstances have intervened and other orders made for preparation of the matter for trial.
I am of the view that the proposed appeal is wholly lacking in merit such that it would be futile to grant an extension of time in which to bring it.
I am further of the view that had an extension of time been granted, leave to appeal would not have been given because none of the proposed grounds or any of the arguments addressed to them demonstrate that in making these interlocutory and procedural orders, his Honour Collier J erred in principle nor has it been established that any substantial injustice would flow to the mother if leave to appeal was not granted.
Neither the mother nor the father was represented. The father sought no order for costs against the mother if the appeal failed. There will thus be no order as to costs.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 19 December 2013.
Associate:
Date: 19 December 2013
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