Gorman and Huffman
[2018] FamCA 712
•12 September 2018
FAMILY COURT OF AUSTRALIA
| GORMAN & HUFFMAN | [2018] FamCA 712 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Review of Registrar’s order – Where Registrar refused application for extension of time to file further application – Where Review by way of hearing de novo – Where applicable principles considered – Where ordered that application for extension of time be dismissed – Where any application for costs be by way of written submission. |
| Family Law Rules 2004 (Cth) r 1.14 |
| Gallo v Dawson (1990) 93 ALR 479 Gorman & Huffman and Anor [2016] FamCAFC 174 |
| APPLICANT: | Ms Gorman |
| RESPONDENT: | Mr Huffman |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Ryan of Legal Aid NSW Parramatta Family Law |
| FILE NUMBER: | PAC | 3882 | of | 2011 |
| DATE DELIVERED: | 12 September 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 13 August 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Martin Street Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Soden Legal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
That the mother’s Application in a Case filed 20 June 2018 be dismissed.
That any application for costs be made by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within a further 14 days.
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 Gorman & Huffman 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).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3882 of 2011
| Ms Gorman |
Applicant
And
| Mr Huffman |
Respondent
REASONS FOR JUDGMENT
The application for determination arises from an Application in a Case filed by the mother in long-standing parenting proceedings.
The mother’s Application in a Case filed on 17 July 2018, in summary, seeks a review of a determination made by a Registrar on 10 July 2018 dismissing the mother’s application for an extension of time to file an Amended Application in a Case pursuant to orders made by Hannam J. on 21 May 2018.
The Review of the Registrar’s determination is by way of hearing de novo.
The orders made by Hannam J. on 21 May 2018 were as follows:
THE COURT NOTES
A.The Application in a Case filed 1 March 2018 clearly goes beyond the matters with respect to which the mother could seek variation in accordance with Order 5 of the Full Court Orders of 5 September 2016.
B. The mother’s Application in a Case to revisit the orders in accordance with Order 20 of 29 April 2015 as varied by the Full Court was brought within time on 1 March 2018.
THE COURT ORDERS:
1. The mother withdraws her application to seek orders in terms of the Application in a Case filed 1 March 2018 and is to file an Amended Application only in relation to the variation of Order 5 as provided for by the Full Court within 28 days of today.
2. To the extent that the mother seeks any variation beyond that permitted by the Full Court in its Orders of 5 September 2016 varying the orders of this court on 29 April 2015 she will be required first to satisfy the court that there are significant changes in the children’s circumstances such that it is in their best interest to revisit the parenting orders.
For the sake of clarity Order (5) made by the Full Court in the relevant Appeal proceedings (Gorman & Huffman and Anor [2016] FamCAFC 174) provided:
(5)The orders made by Hannam J on 29 April 2015 be varied by:
(a)Setting aside order (10);
(b)Setting aside the notation to the orders;
(c)Inserting immediately following order (19) the following orders:
(20)The parties and the Independent Children’s Lawyer be granted liberty to apply so as to seek a variation of order (5) of these orders by the filing and serving of an Application in a Case by not later than 4.00pm on 1 March 2018.
(21)The order that the children be independently represented continue until:
(a)2 March 2018 in the event that no application is filed and served in accordance with the previous order; or
(b)finalisation of the further proceedings instituted by the application contemplated by the previous order; or
(c)earlier or other order.
The pivotal order the subject of the present procedural application is highlighted above. Order 5 of the Orders made by Hannam J. provided:
Thereafter, the children shall spend supervised time with their mother each second month, at a supervised contact centre.
The mother’s Application in a Case purportedly complying with the Full Court orders was filed on 1 March 2018. The application as filed did not comply with the liberty afforded by the Full Court orders and was withdrawn on 21 May 2018.
The timeframe provided by the orders made on 21 May 2018 required the mother to file a complying Application in a Case by no later than 18 June 2018.
The mother remains in default of the orders of Hannam J and has not filed any such Application to date.
Indeed, the application before the Registrar on 10 July 2018 was the mother’s Application in a Case filed 20 June 2018 seeking a further indulgence to file her Application in a Case as provided for in the orders of the Full Court and of Hannam J “within 6 weeks of the date of this order”. That being six weeks after the Registrar determined her application for extension of time if the application was determined favourably to the mother.
Before the Registrar the mother relied on:
a)her affidavit filed 20 June 2018;
b)the affidavit of Ms Q solicitor; and
c)the affidavit of Mr R.
The father and Independent Children’s Lawyer (“ICL”) opposed the mother’s application.
Rule 1.14 of the Family Law Rules 2004 (Cth) provides:
(1)A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2)A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3)A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party's costs in relation to the application.
The primary considerations as to extension of time are well settled: Gallo v Dawson (1990) 93 ALR 479. Regard should be had to:
a)the history of the proceedings;
b)the parties’ conduct;
c)the nature of the proceedings; and
d)the consequences for the parties of either allowing or dismissing the application for extension.
On 10 July 2018 the Registrar dismissed the mother’s application filed 20 June 2018. In doing so the Registrar noted:
Notations
1. I note the following in this matter;
·This is the mother’s Application in a Case seeking to file an amended application out of time for the variation of Order 5 made by the Full Court on 5 September 2016.
·In her Application in a Case, the mother sought an extension to file by 6 weeks. I am now informed that a 12 week extension is sought given the mother’s grant of aid has recently been withdrawn and there is an appeal on foot in relation to the reinstatement of that aid. The mother also wishes to obtain counsel’s advice before filing her amended application.
·In circumstances where;
a) the proceedings have been on foot for 7 years;
b) the mother has not prepared her amended application and cannot enumerate the likely contents of that amended application; and
c) the father remains in limbo in relation to the ongoing proceedings
I have determined that it is appropriate to dismiss the Application in a Case filed 20 June 2018.
In essence the mother’s then solicitors took the blame for not filing in accordance with the orders of 21 May 2018 claiming an “inadvertent diary error”. The mother, in her further affidavit filed 17 July 2018, also complains about her dilatory solicitors and the termination of her Legal Aid grant.
Yet such explanation belies the fact that as at 10 July 2018 the mother and her solicitors sought yet another extension for 12 weeks. That extension, if granted, would have been to mid-September 2018 in relation to an application ordered to be filed by the Full Court by 1 March 2018.
It is clear that as at 10 July 2018 no proper consideration had been given by the mother to the substance of the application she was required to file.
These are very long running parenting proceedings that have in effect been finalised by Full Court orders subject to any application that the mother may make in relation to the question of her supervised time with the children. The mother to date has not filed any such application that complies with the orders of the Full Court despite ample opportunity.
The father is entitled to expect finality subject to any application initiating fresh proceedings by the mother that may assert a significant change in the children’s circumstances. He rightly expresses concern as to the impact on the children of ongoing litigation.
Having regard to the above the mother’s Application in a Case filed 20 June 2018 will be dismissed.
The father seeks an order for his costs of and incidental to the mother’s application. Orders will be made for written submissions as to costs.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 September 2018.
Associate:
Date: 12 September 2018