Edsall and Rabkin

[2016] FamCAFC 81

FAMILY COURT OF AUSTRALIA

EDSALL & RABKIN [2016] FamCAFC 81

FAMILY LAW – APPLICATION IN AN APPEAL – Application by the mother seeking an extension of time to file a Notice of Appeal for cross appeal – Where the Notice of Appeal filed by the father (“NA67 of 2015”) and Notice of Appeal for cross appeal (“NA9 of 2016”) raise similar issues and there is possible merit in both appeals – Where the delay is adequately explained – Where the grant of an extension of time would not result in injustice as between the parties – Where father does not oppose leave being granted in circumstances where he can file an Application to Adduce Further Evidence – Application allowed – No order as to costs.

Gallo v Dawson (1990) 93 ALR 479

Family Law Act 1975 (Cth) s 94(2D)
Family Law Rules 2004 (Cth) rr 1.14. 22.08

APPLICANT: Ms Edsall

RESPONDENT: Mr Rabkin

FILE NUMBER: BRC 5702 of 2013

APPEAL NUMBER:	NA	9	of	2016
NA	67	of	2015

DATE DELIVERED: 17 May 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 17 May 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 27 August 2015

LOWER COURT MNC: [2015] FCCA 2325

REPRESENTATION

FOR THE APPELLANT: Ms Edsall (in person)

FOR THE RESPONDENT: Mr Rabkin (in person)

Orders

1. The Application in an Appeal NA9 of 2016 be allowed.

2. Appeals NA9 of 2016 and NA67 of 2015 be consolidated and heard together in the sitting in Brisbane commencing 1 August 2016.

3. No order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Edsall & Rabkin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA9 of 2016, NA67 of 2015
File Number: BRC5702 of 2013

Ms Edsall

Applicant

And

Mr Rabkin

Respondent

REASONS FOR JUDGMENT

1. By Application in an Appeal filed 8 February 2016, Ms Edsall (“the mother”) seeks to file a Notice of Appeal to cross-appeal out of time against parenting orders made by Judge Howard in the Federal Circuit Court of Australia. The mother also seeks that her appeal and the one filed by the father (discussed below), should be consolidated and heard together.

2. After lengthy reasons were provided by the judge on 27 August 2015, the mother and Mr Rabkin (“the father”) were ordered to provide submissions on the wording and arrangements of the final parenting orders. The father filed a Notice of Appeal from these procedural orders on 24 September 2015 (“NA67 of 2015”).

3. On 18 December 2015 final parenting orders were made with the parents to have equal shared parental responsibility for the child, the child to live with the mother and spend time with the father. Those orders were further amended on 21 December 2015 to correct the child’s name. 

4. On 18 March 2016 the father filed an Amended Notice of Appeal to reflect the correct date of the final parenting orders appealed from, being 21 December 2015.  

Background and Reasons of the Primary Judge

1. The child was born in 2010. The parents separated in 2013 and the child thereafter lived primarily with the father, spending time with the mother for approximately three days and one night per week.

2. The final parenting orders provided for equal shared parental responsibility, the child to live with the mother and spend time with the father. Commencing this year the time with the father included alternate weekends and half of the school holidays. The orders included the following provisions:

   7.That the child shall have reasonable telephone contact with the non-resident parent with whom he is living at the time.

   8.That the mother and father shall do all necessary things to ensure the child is not brought into contact with dogs.   

Principles for an Extension of Time

1. Rule 22.08 of the Family Law Rules 2004 (Cth) (“the Rules”) provides:

   A Notice of Appeal for a cross-appeal must be filed within the later of:

   (a)14 days after the Notice of Appeal for the appeal is served on the cross-appellant; or

   (b)28 days after the date the order appealed from was made.

   …

2. The final parenting orders were made on 18 December 2015 and amended 21 December 2015. The mother had 28 days from this date to file her Notice of Appeal to cross-appeal. When the mother filed her Application on 8 February 2016, she was almost one month out of time. Rule 1.14 of the Rules enables a party to apply to the court to extend the time fixed under the Rules, and such application may be heard by a single judge or by a Full Court (s 94(2D) of the Family Law Act 1975 (Cth) (“the Act”)).

3. In determining applications for extensions of time to file an appeal, reference is often made to the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480-481, the principles of which can be distilled to a central consideration of whether the grant or refusal of an extension of time would result in some injustice. In such consideration, regard is also had to the following factors:

   ·Whether there was an adequate explanation for the delay;

   ·The proposed grounds of appeal having some merit; and

   ·That any prejudice to the respondent can be compensated by an order for costs.

4. In the mother’s affidavit also filed 8 February 2016 she explains the delay in filing. The mother submits that she is self-represented, and as a result did not appreciate that the 28 day timeframe did not mean 28 “business days”. The mother therefore did not take into account the public holidays over the Christmas break. The mother submits that an extension would not cause prejudice to the father, as his appeal is already on foot and expected to be heard in the August 2016 sittings. If leave is granted it would not affect the hearing of the father’s appeal.

5. The mother’s draft Notice of Appeal for cross appeal, annexed to her affidavit, contains six grounds of appeal:

   1.The Judge erred in determining that the mother and father have equal shared parental responsibility for the child…

   2.The Judge erred in failing to provide Orders sought by either of the parties in their respective proposals:

   a.Whether a Passport should issue for the child and the issue of overseas travel

   b.That either parent may communicate with [the child] by telephone at all reasonable times but not less than each Monday and Thursday between the hours of 6.00pm and 6.30pm with the mother initiating such call to telephone the other parent’s landline number in the first instance and the other parent’s mobile number in the second instance.

   c.Both parents shall ensure that [the child] is given privacy during the time he communicates with the other parent via telephone, including but not limited to ensuring that the telephone is not switched onto speaker phone during such call.

   d.Each parent shall adequately supervise [the child] at all times and will ensure that they are not left unattended without appropriate adult supervision at all times.

   [3].The Judge erred in determining that the dogs amount to an unacceptable risk to [the child].

   [4].The Judge erred in failing to admit fresh evidence on 14 December 2015 obtained since the making of the Judgement [sic] 27 August 2015 obtained by both the mother and father which showed, or tended to show, that the dogs were not an unacceptable risk.

   [5].I seek leave to bring in fresh evidence since Trial, including Recovery Application filed 7 October 2015 and the lack of medical evidence to support that [the child] is allergic to dogs.

   [6].The Judge erred in failing to provide Orders sought by the mother, to exclude […], the paternal grandmother, in being at liberty to facilitate changeover.

6. The father’s Amended Notice of Appeal filed 18 March 2016, NA67 of 2015, has 16 grounds of appeal which include similar complaints. It is useful to also set them out in full:

   1.The learned Judge failed to consider or give any reasons in his Reasons for Judgment about any of the following classes of Orders sought by either of the parties in their respective proposals:

   a.Time between the child and the parties during school holidays,

   b.Time between the child and the parties on special days,

   c.Telephone communication between the child and the parties,

   d.Where the changeover should take place,

   e.Whether a Passport should issue for the child and the issue of overseas travel

   And in his failure to do so erred in law.

   2.Having found, as he did at paragraph 108 of the Reasons that the parties should have equal shared parental responsibility for the child and having found that it was reasonably practical for the child to spend equal time with the parties pursuant to Section 65DAA, the learned Judge was required to consider whether equal time was in the child’s best interest with reference to the factors contained in Section 60CC of the Act and his findings in relation to those factors. His Honour failed to do that and therefore erred in law.

   3.In addition to Appeal Ground 2, the learned Judge, having determined as he did that equal time was ‘not in the child’s best interest’ gave no explanation and otherwise insufficient reasons as to why he found that ‘something less than that is appropriate’ (paragraph 110 of the Reasons) and therefore erred in law.

   4.In making findings about Section 60CC(3)(d) of the Act the learned Judge failed to make any findings about the likely effect of the Orders he proposed on the child and erred in his application of the facts to the principles in Section 60CC(3)(d) in the findings that he did make pursuant to Section 60CC(3)(d) and therefore erred in law.

   5.The findings of the learned Judge in his Reasons are internally inconsistent in relation to the issue of whether the parties’ communication will improve post Orders being made in relation to the child and in addition such findings:

   a.Underpin the findings of the learned Judge in relation to the issue of parental responsibility,

   b.Underpin the findings of the learned Judge in relation to the issue of equal time and his application of Section 65DAA of the Act.

   The inconsistent findings of the learned Judge lead him into error as to the issue of his application of Section 65DAA of the Act.

   6.In addition to Ground 5, the learned Judge was wrong in law in his determination of what was meant and the findings he had to make to determine what was reasonably practicable and conflated and confused the issue of reasonable practicality and the parties ability to communicate. The learned Judge’s findings in that regard affected his consideration of both equal time and significant and substantial time.

   7. The learned Judge having found in relation to Section 61DA as he did at paragraph 107 of the Reasons for Judgment that as to the question of parental responsibility ‘the presumption has probably been displaced by reason of the fact that there has been family violence’ failed to give sufficient reasons as to why there then should be an Order for equal shared parental responsibility and therefore erred in law.

   8.Further to Appeal Ground 7, the learned Judge’s findings with respect to the reason for the parties having equal shared parental responsibility (paragraph 108 of the Reasons) is internally inconsistent with the Reasons given by the learned Judge for finding that the Court should not ‘vary significantly from the stated opinion of Mr [J]’ (paragraph 101 of the Reasons).

   9.The learned Judge gave nor reasons as to why the opinions of Mr [J] were inconsistent with the rest of the body of evidence before him and therefore erred in law (Hall and Hall (1979) FLC 90-713).

   10.Having made findings in respect to the issues concerning the Respondent’s attitude towards the child’s health, the learned Judge failed to consider the Appellant’s alternate proposal that he have sole parental responsibility for the child’s health and therefore erred in law.

   11.The learned Judge did not consider the oral evidence of Mr [J] at [sic] Hearing and did not set out how that evidence differed from the opinions given by Mr [J] in his written reports and erred therefore in fact and consequently in law.

   12.Further to Appeal Ground 11, the learned Judge gave insufficient Reasons (at paragraph 106 of the Reasons) in relation to why an arrangement whereby the child lived with the Mother predominantly was ‘within the scope of the opinion evidence of stated by Mr [J] read in conjunction with his oral testimony’ and therefore erred in law.

   13.The learned Judge failed to consider the evidence in relation to how the child came to be seen by a psychologist or a speech therapist. The findings in relation to the issues underpinned the learned Judge’s findings with respect to where the child should live. In failing to consider the evidence in relation [sic] that issue the learned Judge erred in fact and therefore in law.

   14.The learned Judge gave insufficient reasons (at paragraph 101) as to why the findings he had made in relation to the issue of the anal fissure and the findings in relation to the issue of Asthma was not ‘a sufficient reason for the Court to vary significantly from the stated opinions of Mr [J’s] and the learned Judge therefore erred in law.

   15.Despite the evidence and the findings of the learned Judge at paragraph 109 of the Reasons that clear Orders in the nature of guidelines were needed in relation to medical advice, the learned Judge failed to make Orders about this issue at all and therefore erred in law.

   16.The Reasons for Judgement [sic] are otherwise inadequate and insufficient.

7. The father asks should his appeal succeed, the application and response be listed for re-hearing before another judge.

8. On 13 May 2016 the mother filed written submissions simply restating her request for an extension of time to file a Notice of Appeal for cross-appeal and consolidate the two appeals. In relation to this application, the father filed no written submissions, but made oral submissions.

9. The father explained that he would have no objection to leave being granted if he is afforded the opportunity to adduce further evidence. He said that the parties will appear before Judge Howard on 24 May 2016 as a result of a further application filed by him. It was explained to both parties that if they wish to adduce further evidence in the appeal, a separate Application to adduce that evidence would need to be filed. No doubt suitable directions will be made by the Appeals Registrar.  

10. The appeal grounds canvass largely similar complaints. Should leave be granted, it would be convenient to consolidate the appeals and have the two appeals listed together, preferably in the August 2016 Brisbane sittings. 

11. There being an adequate explanation for the delay and apparent merit in the cross appeal, the central question is whether to grant such leave would cause prejudice to the father.

12. The procedural orders made by Registrar Kane in the father’s appeal NA67 of 2015 on 16 November 2015 have been complied with by the father. All the material for that appeal has been filed. Granting an extension of time to the mother’s appeal would cause no prejudice to the father, as all that is required are some further directions setting parameters for the filing of submissions by the mother and those in response by the father.

13. The parties will return before the Appeals Registrar, at a date to be advised, for a procedural hearing setting dates for any supplementary appeal books to be filed, Applications to Adduce Further Evidence on Appeal and written submissions. It is difficult to see how the mother would need to rely on any different material other than that which has already been prepared in the father’s appeal. Any Application for Further Evidence on Appeal will be heard by the Full Court at the same time as the hearing of the appeal.

costs

1. There being no prejudice caused to the father, each party appearing for themselves and no application for costs, no order for costs will be made.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 17 May 2016.

Associate:

Date: 17 May 2016