FINCH & SHIBO
[2016] FamCAFC 33
•26 February 2016
FAMILY COURT OF AUSTRALIA
| FINCH & SHIBO | [2016] FamCAFC 33 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application to file proposed Notice of Appeal out of time – Where the orders the subject of the application were made over two years ago – Where the applicant has previously filed Notices of Appeal against those orders and subsequently discontinued those appeals – Where there is no explanation for the delay and no merit in the proposed Notice of Appeal – Application dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Application to consolidate and expedite the hearing of two appeals – Where one of the appeals is already listed for the next available sittings – The two appeals will be consolidated and heard together in the next available sittings – Application dismissed. |
| Gallo v Dawson (1990) 93 ALR 479 Grantham & Maid [2011] FamCAFC 218 |
House v The King (1936) 55 CLR 499
| Family Law Act 1975 (Cth) s 94(2D)(a), 118(1)(c) Family Law Rules 2004 (Cth) r 1.14, 22.03 |
| APPLICANT: | Mr Finch |
| RESPONDENT: | Ms Shibo | |||||
| INDEPENDENT CHILDREN’S LAWYER: | Mr Scott | |||||
| FILE NUMBER: | BRC | 2788 | of | 2009 | ||
| APPEAL NUMBER: | NA | 56 | of | 2015 |
| NA | 75 | of | 2015 | |
| NA | 85 | of | 2015 |
| DATE DELIVERED: | 26 February 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 26 February 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 March 2013 21 August 2015 |
| LOWER COURT MNC: | [2013] FamCA 135 [2015] FamCA 690 [2015] FamCA 1059 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Finch (in person) |
| COUNSEL FOR THE RESPONDENT: | Mr White (by telephone) |
| SOLICITOR FOR THE RESPONDENT: | Suncoast Community Legal Service |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Parker Family Law |
Orders
The applications to expedite Appeal NA 56 of 2015 and NA 85 of 2015 are dismissed.
Appeals NA 56 of 2015 and NA 85 of 2015 be consolidated and heard in the sitting in Brisbane commencing 6 June 2016.
The Application in an Appeal NA 75 of 2015 filed 26 October 2015 is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo 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: NA 65, 75 & 85 of 2015
File Number: BRC 2788 of 2009
| Mr Finch |
Applicant
And
| Ms Shibo |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
There are three applications before this Court today, filed by Mr Finch (“the father”):
a)An Application in an Appeal NA 75 of 2015 filed 26 October 2015 seeking an extension of time to appeal against orders made pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”) by Forrest J on 7 March 2013; and
b)An Application in an Appeal filed 23 November 2015 seeking an expedited hearing of the following two appeals:
i)Notice of Appeal NA 56 of 2015 filed 16 October 2015 against parenting orders of Forrest J made on 21 August 2015; and
ii)Notice of Appeal NA 85 of 2015 filed 23 November 2015 against orders of Forrest J made on 16 November 2015;
The father and Ms Shibo (“the mother”) have one child together, born in 2007 (“the child”). The parents have been litigating the parenting arrangements for the child since 2009, in both the Federal Circuit Court of Australia and the Family Court of Australia. The Independent Children’s Lawyer advised it would not appear during the hearing of these applications.
A central issue in dispute appears to be the travel and handover arrangements for the father to spend time with the child. It is necessary to explain some background to this matter.
Background
Consent orders were made between the parties on 19 May 2009, which provided that they have equal shared parental responsibility for the child, with the child to spend time with the father as described in the orders and no requirement for supervision.
On 21 August 2009, the consent orders were varied by Wilson FM (as he then was), after a number of applications were filed by the father. Among other things, the father submitted that because of illness and mental health issues, he could not travel to see the child and instead tried to make telephone contact – which the mother resisted due to his behaviour during these calls. The orders were varied to change the location for the father to spend time with the child, and utilised a contact centre to effect the new arrangements. These orders also stipulated the frequency of which the father could call the child.
Vexatious Proceedings – 7 March 2013
In 2011, the parties were progressing towards a trial before Forrest J when they were able to finalise the matter by consent. On 22 November 2011, Forrest J made orders by consent providing for the child to spend time with the father each second weekend, requiring the father to collect her from childcare and return the child to a contact centre. The orders for equal shared parental responsibility were still in effect at this time.
The father filed a number of contravention applications in 2012 against the mother, and the matter ultimately was listed for trial before Forrest J on 26 September 2012. During the trial, the father explained that he only pressed the part of his application dealing with a change in the handover point for the child. The mother opposed this change, and sought to have his application dismissed as frivolous or vexatious.
On 7 March 2013 Forrest J made the following orders:
(1)The Amended Initiating Application filed by the father on 13 August 2012 is dismissed.
(2)The father […] must not without the leave of a Court having jurisdiction under the Family Law Act 1975 commence any proceedings seeking orders pursuant to Part VII of the Family Law Act 1975 in any court, either State or Federal, in respect of the child, […] who was born [in] 2007.
(3)Any application the father files in which he seeks leave to commence any proceedings pursuant to Part VII of the Family Law Act 1975 shall not be served on the mother of the said child and shall be heard, at first instance, on an ex-parte basis.
The reasons of the trial judge making final orders are contained in the following paragraphs:
25.I am quite satisfied, particularly from the way in which the father has litigated against the mother from the start of parenting proceedings in this Court, and, in particular, from the way in which he conducted proceedings in the wake of the November 2011 consent orders finalising the original parenting proceedings, that this application, particularly in its final form that went to trial before this Court, was a frivolous one as well as a vexatious one. I am quite satisfied that the father continued with proceedings that became untenable both in law and in fact, out of anger, vindictiveness, and spite, with a view to annoying and trying somehow to get even with the mother for what he perceives to be past wrongs she has perpetrated against him. He was insistent on cross-examining the mother and her sister, attacking their honesty and simply raking over very old ground that had nothing to do with the issue that he was purporting to have this Court determine. In doing so, he did more damage to his own position than he did to their credibility.
…
28.Whilst I have observed that involvement in the court’s process on the one hand does not seem to trouble the father, on the other hand, it does appear to have been taking an enormous emotional toll on the mother. I am satisfied, having regard to the personality of the father and the manner in which he speaks, communicates, relates and litigates, that even the most resilient of characters placed in the mother’s position would struggle to maintain a semblance of emotional balance in the face of such an onslaught. The parties’ little girl needs her mother to maintain good emotional health so that she can concentrate on providing sound parenting for her. It is not in the child’s best interests to allow her mother to be subject to constant harassment through the father shooting off frivolous and vexatious court applications against her at his whim.
29.Furthermore, as the mother has been drawing on legal aid funding each time the father has brought her to Court so far, there is a broader public interest in ensuring that the precious funds made available for those who need and deserve publicly funded legal assistance are not being used up by people continually having to meet frivolous and vexatious applications.
Parenting Proceedings – 21 August 2015
Despite these orders, the father then made repeated applications to the Court to commence further proceedings for a variation of the existing orders – again a central issue being the location for handovers. Forrest J ultimately gave the father leave to file and serve an application, which became the subject of the reasons published 21 August 2015 and the orders, the subject of Appeal NA 56 of 2015.
Forrest J confined the father to three issues during that hearing:
6.…
(1)the location of handovers of the child between the parents at the commencement and conclusion of the child’s time with the father;
(2)the father’s telephone communication with the child; and
(3)whether the mother should continue to be permitted to travel with the child to her country of origin […] as she had been pursuant to the 2011 Order made by consent.
The mother in response sought that the equal shared parental responsibility order be discharged (made by consent in 2011) and instead she would have sole parental responsibility.
In his reasons, Forrest J spent some time explaining the father’s illnesses and mental health issues, with reference to a report prepared by a psychiatrist for the purpose of the hearing. His Honour found the presumption for shared parental responsibility was rebutted in this matter.
As to the issue of the handover location, the father ultimately changed his position on the frequency of handovers, and instead elected to only spend holiday time with the child. Forrest J made orders reflecting that position.
Dismissal of Application – 16 November 2015
The husband filed two further Applications in a Case seeking leave, pursuant to the Order 3 of the orders made on 7 March 2013, relating to the parenting proceedings with the mother.
The father did not appear in person on the day of hearing those applications before Forrest J on 16 November 2015. The father made repeated requests to appear by telephone, which were denied.
The transcript of the hearing reveals a discussion between Forrest J and the Independent Children’s Lawyer that the material filed was inadequate and also contained grossly offensive material and abusive allegations.
Forrest J made orders dismissing the father’s Application in a Case. Those orders are the subject of Appeal NA 85 of 2015.
In both appeals the fathers focus is on the conduct of the proceedings by the primary judge. He seeks that the order be set aside and there be a re-hearing.
Principles for an Extension of Time
It is convenient to deal first with the father’s application in an appeal NA 75 of 2015, which seeks an extension of time to appeal the orders of Forrest J on 7 March 2013 – the vexatious proceeding order. This order was made pursuant to s 118(1)(c) of the Act, which has now been amended.
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provide that a notice of appeal must be filed within 28 days after the date the order appealed from was made. The father filed his Application on 26 October 2015, over two and a half years out of time.
The father has previously filed two Notices of Appeal from these orders, both out of time. On 17 April 2013 the father filed a Notice of Appeal, but then later filed a Notice of Discontinuance. The father filed a further Notice of Appeal on 4 October 2013, which was ultimately listed in preparation for Full Court sittings that year but the father again filed a Notice of Discontinuance.
Rule 1.14 allows a party to apply to the court to extend the time fixed under the Rules, such application may be heard by a single judge or by a Full Court (per s 94(2D)(a) of the Act.
While there is no further guidance in the Rules or the Act, reference is often made to the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480-481:
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 & 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 194-5; 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.
The central consideration is whether the grant or refusal of an extension of time would result in some injustice, by reference particularly 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.
Reason for the delay
In his affidavit filed 26 October 2015 the father provides no explanation for the delay and instead merely repeats inflammatory statements about the primary judge, the mother and the Independent Children’s Lawyer. Similar words have been used in previous affidavits of the father at trial and the hearing of his applications for leave to institute proceedings.
In oral submissions, the father made reference to his health issues as explanation for the delay, although no medical evidence was supplied in relation to the relevant period. It was also contended that the delay was occasioned by “false and misleading advice” from the court and that it was only in August 2015 that he received advice from a Registrar that he could appeal.
The delay is not explained.
Merits of the Appeal
The father’s draft Notice of Appeal, annexed to his affidavit, sets out some 34 grounds of appeal. Some are not grounds at all, and are mostly incomprehensible. While making allowance for the father being a litigant in person, he is an experienced litigant in this court.
An example of the grounds is as follows:
1:Abuse of power to cause deliberate detriment by Colin Forrest J. This Judicial officers have allowed the Family Court to become a cesspool of lies and manipulation. Anyone can say anything without any evidence and get away with it. The liars and manipulators are seen as being rewarded by the legal service community themselves, prompting solicitors to resort to the same tactics. The judges and magistrates involved within the Family Court system have very little respect for themselves or the court they represent.
2:The Family Court is not a court. It is a corporation. It has a CEO and executive directors, including those in charge of Finance and Operations. It also operates under a formal Corporate Governance, and by definition, Corporate Governance: “…involves balancing the interests of the many stakeholders in a company – these include its shareholders, management, customers, suppliers, financiers, government and the community. Since corporate governance also provides the framework for attaining a company’s objectives, it encompasses practically ever sphere of management, from action plans and internal controls to performance measurement and corporate disclosure”.
3:In 2006, the Howard government introduced Shared Care Amendments to the Family Law legislation in an attempt to reduce Parental Alienation. The legislation was a step forward in eliminating Parental Alienation and allowing for a smooth transition for families goes through separation and divorce. The amendments ensured that children were cared for by both parents and that children would never again be alienated from one, or both parents or used as a weapon against each parent. The legislation had a small flaw in that the presumption of shared care was subject to domestic violence “concerns”, where a parent could withhold a child is they believed they were being subjected to abuse. These legal clause actually encouraged false domestic violence and child abuse allegations, although not to the extend we have seen since 2012. However, it was a step forward for children and families going through separation. Now families would be assured that no matter what happened, they would always have each other.
(some errors corrected)
It is difficult to assess the merit of the appeal based on the draft Notice of Appeal. It bears repeating that the father has twice initiated an appeal of these orders, out of time, which were then discontinued.
In oral submissions the father emphasised that he was a litigant in person with mental health issues. He referred to the United Nations Convention on the Rights of Persons with Disabilities, to which Australia was a signatory on 30 March 2007.
When reference is had to the well-known passage from House v The King (1936) 55 CLR 499 at 504-505, it is impossible to decipher from the grounds any possible proper grounds of appeal:
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.
It would also be necessary to convince the court that leave should be given to hear the appeal. The basis for leave is set out in the proposed Notice of Appeal NA 75 of 2015:
1.Colin James Forrest J, Malfeasance of Public Office and Administrative errors
2:Colin James Forrest J, Major Miscarriage of Justice and Questionable Corruption
3:Colin James Forrest, Perverting the course of Justice
(errors corrected)
If the appeal succeeded, the father seeks the following orders:
1.Leave be granted to appeal, orders made by Forrest J, 7 March 2013 and the appeal be heard as a joint appeal with NA56/2015 FCFCoA sitting
2:The orders made by Forrest J, 7 March 2013 be Immediately Stayed upon leave being granted to Appeal
3:That the Chief Justice direct and recommend that Colin James Forrest J supply a Sincere Genuine written apology to the applicant as a Priority for Deliberate Personal acts of: abuse of power to cause deliberate detriment to the applicant”, that Colin James Forrest J unconscionably committed against the Applicant as a Justice of the Family Court of Australia presiding over File: BCR2788 of 2009 since 2011.
(some errors corrected)
The father’s submissions and documents filed to support this application, even allowing for the circumstances of the father, do not reveal any basis for leave to appeal to be granted.
The mother opposes the father’s application to file his Notice of Appeal out of time. In submissions, counsel for the mother, in addition to noting that there is no explanation for delay emphasised, that the father has failed to identify any proper grounds of appeal.
The father should understand that the orders restraining him from filing applications without leave do not act as a bar to justice. The orders require that the father must first seek leave of the court to commence any new proceedings, a process which the father has utilised a number of times before Forrest J. For example, the orders of 21 August 2015 (now the subject of the appeal NA 56 of 2015) were a result of an initiating application which Forrest J gave leave for the father to file.
The father’s main complaint is that the order prevents him from seeking contravention orders against the wife. This is not correct.
It must be observed that this is not a matter where a father has simply failed to comply with procedural orders (see Coleman J per Grantham & Maid [2011] FamCAFC 218). The father has not filed a Notice of Appeal in time and in the absence of proper grounds it is not appropriate to grant him an indulgence of the court to allow the appeal to be filed.
The Applications to Expedite
The appeals in relation to the substantive orders will be heard in the next sittings of this court where many of the matters the father wishes to agitate can be heard. It is not necessary for me to consider this application because the next Full Court in Brisbane sittings are scheduled for June 2016, and the registry has advised that NA 56 of 2015 is currently scheduled to be heard in those sittings. Appeal NA 56 of 2015 and NA 85 of 2015 should be consolidated and heard together in those sittings.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 26 February 2016.
Associate:
Date: 26 February 2016
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