Handley and Dantes - [2009] FamCAFC 158

FAMILY COURT OF AUSTRALIA

HANDLEY & DANTES

[2009] FamCAFC 158

FAMILY LAW – APPEAL – FROM A DECISION OF A FAMILY COURT JUDGE – PRACTICE AND PROCEDURE – Application for extension of time – Respondent filed an application for security of costs – Relevant considerations were the prospects of success, financial circumstances and whether security order would stifle litigation – An appeal in this matter was considered very unlikely to succeed – If an extension of time was granted then security for costs would be ordered – Such security would likely stifle any litigation – Delay in filing was explained but overall justice of the matter pointed to the application being dismissed – Application for extension of time dismissed – Consequentially application for security dismissed
FAMILY LAW – COSTS – Applicant to pay the costs of the respondent as agreed or in default as assessed

APPELLANT:

Mr HANDLEY

RESPONDENT:

Ms DANTES

FILE NUMBER:

BRC

4356

2002

APPEAL NUMBER:

2009

DATE DELIVERED:

27 August 2009

PLACE DELIVERED:

BRISBANE

PLACE HEARD:

BRISBANE

JUDGMENT OF:

WARNICK J

HEARING DATE:

27 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Burridge

SOLICITORS FOR THE APPLICANT:

Walsh Halligan Douglas

SOLICITOR FOR THE RESPONDENT:

Ms Barbour

SOLICITORS FOR THE RESPONDENT:

Anthony Black Family Law Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Fleetwood

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER

Schultz Toomey O’Brien Lawyers

Orders

That the application for an extension of time within which to appeal filed 22 April 2009 be dismissed.
That the application for security for costs filed 25 June 2009 be dismissed.
That the applicant father pay the costs of the respondent mother of and incidental to the application for extension of time and the application for security of costs, as agreed, and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Handley & Dantes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA37 of 2009
FILE NUMBER: BRC 4356 of 2002

Mr HANDLEY

Applicant

And

Ms DANTES

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 3 March 2009, Barry J made orders in relation to parenting issues between Mr Handley and Ms Dantes concerning their two children, who were then about 11½ years of age and 9½ years of age. The orders, in short, were that the children live with the mother, she have sole parental responsibility for them; the father have supervised time with the children at a contact centre for not less than two hours per fortnight, and, if available, up to two hours per week.
The father attempted, within 28 days of the decision, to appeal it, but used the incorrect forms. The time within which to appeal as of right expired, and on 22 April 2009 he filed an application for an extension of time within which to appeal, that being one of the two applications before me today and to which these reasons relate.
The mother has filed a response seeking the father’s application be dismissed, and an application that, if an extension of time is granted, the father pay a sum of, on the face of the application, $30,000 by way of security for costs.
The explanation of the father for the delay is one which, on its face, would encourage the grant of the extension of time. The, perhaps, only shadow on his explanation is that the mother did not receive any indication of an intention to appeal the orders until 15 May 2009 two and a half months after the orders were made. This is a shadow worth attention, although it may well not prevent a grant of an extension of time, but because, given the children’s ages, I would infer that they became aware of the orders of 3 March at about that time and that that degree of settlement which one might expect to follow the conclusion of proceedings, or what appeared to be the conclusion of proceedings, may well have been disturbed by knowledge of a further challenge to that arrangement.
At the trial before Barry J, Mr Fleetwood appeared for the Independent Children’s Lawyer. He appears in respect of these applications. He supports the application of the father for an extension of time primarily on the basis of the observations that I have made about the steps taken by the father to appeal and the cogency of that as an explanation for delay, and takes no stand one way or the other in respect of the application for security. Each of the mother and father are legally represented today.
Primarily, questions of extension of time distil to the issue of where the justice of the matter for the parties lies; put another way, whether grant or refusal of the application will cause an injustice to a party. Matters such as the history of proceedings and conduct of the parties are relevant. Although some submissions are made by Ms Barbour, for the mother, in relation to the history of proceedings and conduct of the parties, I would not place any reliance on those matters, except in relation to what I have said of the effect on the children of a passage of two and a half months before there might have been any awareness of a challenge to the orders, and except in the sense that the history of litigation, as distinct from the history of the proceedings before me, is that it is common ground that there has been close to continual litigation since 2002 between these parties over parenting issues and, perhaps, other issues.
As to the application for security, the financial circumstances of the parties are relevant and, in that context, whether an order for security is unlikely to be met, or be capable of being met, by the appellant, and would therefore stifle the litigation.
The question of the genuineness of an appeal is also pertinent. I would accept the father as wishing to challenge the orders, but there are some observations by Barry J which, while not, perhaps, going to the genuineness of the father, refer to what might be described as some inconsistency in the stances that he might take from time to time in relation to orders or proposed orders for parenting arrangements.
The prospects of success based on the proposed grounds of appeal is a relevant matter, both to the question of security for costs and the question of justice or injustice in the grant or refusal of an extension of time.
All I, in my view, really need address, then, in these two applications, are the prospects and the financial circumstances, and whether an order for security would stifle the litigation.
Both parties presented evidence that they are in very difficult financial circumstances. Prior to an affidavit filed by leave this morning by the father, there would have been, I think, on the material, a high chance that an order for security in anything but an unduly modest amount – unduly in the sense that it would not cover the reasonable costs of the mother – would stifle the litigation.
The latest evidence by the father is, in my view, particularly uncertain about its significance but puts an optimistic view on his prospects of having enough money to pay an order for costs. As to what that means in relation to an order for security, it may mean that a court could be persuaded that it was not necessary to order security because somewhere down the track the father will have the capacity to pay any order for costs in the mother’s favour. I would certainly not treat the evidence in that fashion. It is too uncertain for that, in my view, and it is too remote.
The mother seeks that security, if ordered, be paid within a month or so and, if not paid, the appeal be dismissed. Such an order could be made. However, even on the optimistic evidence put before me today by the father, one would be likely to conclude that such an order for security would effectively stifle the right to appeal and be the end of it, except, I suppose, upon speculation that if the father could persuade a lender that his prospects were so clear and optimistic that the lender should provide funds, in that way the appeal might not, in fact, be stifled.
An alternative would be not to make the limitation that the security be paid within a particular period of time, at least, a short period of time, perhaps to allow one year. That would be consistent with when the father says he expects to have considerable moneys. On the other hand, a very unsatisfactory aspect of such an order would be that it would render the status of the orders or the likely longevity of the orders uncertain and mean that appeal proceedings might be pending for 12, 15 month, or even longer. I will say something further of my view of the evidence of the financial circumstances later.
I turn to the question of the prospects of success and in that regard say that the proposed grounds of appeal and the prospects of them ought to be considered in the context of what happened at trial.
In paragraphs 21 to 30 of his reasons for judgment of 3 March 2009, Barry J described the trial process as of the matter proceeding over four days: from 18 February to 21 February, at the conclusion of which judgment was reserved. In June 2008, the mother sought to re-open and sought certain orders, primarily, restraints upon certain conduct of the father. Interim orders were made. There was leave to the mother to adduce further evidence.
The father was given leave to adduce further evidence, and the matter was adjourned. The father subsequently sought that he be at liberty to produce a report from a clinical neuropsychologist. Then some consent orders were entered into which affected the position granted to each of the parties by the orders I have just described. But his Honour concludes the section by recording that in September 2008, he was requested to make orders by consent in chambers, to the effect that the report of a Dr Z, who was the clinical neuropsychologist referred to, be received into evidence, with a notation that he was not required for cross-examination.
In paragraph 90, under the heading Progress Of The Trial, Barry J recorded that the father sought an adjournment at the conclusion of Ms J’s evidence - she having prepared a series of family reports - which was on 21 February 2008, to allow the father to see a psychiatrist. The adjournment was opposed and was refused. His Honour continued:
And at that stage, as noted earlier, the legal representative indicated that the father did not wish to cross-examine the mother further or her partner, [Mr T]. The legal representative for the father indicated that he had accepted her advice and that further cross-examination of the mother or [Mr T] would not assist them or the children.
Then in paragraph 91 his Honour recorded the submissions commencing with those of the Independent Children’s Lawyer who submitted that there should be an order for daytime contact only one day a fortnight, rejecting the option of the contact centre on the basis that it was only a matter of time before that would break down, on the basis that the contact centre would refuse to accept the father because of his inability to comply with the normal conditions of use of a contact centre, and that the Independent Children’s Lawyer sought an order for sole parental responsibility in favour of the mother.
Then at paragraph 108 his Honour recorded submissions by the legal representative for the father as follows:
Ms Colman, quite properly, adverted to the evidence of report writers who all speak of the love of the children for their father, and other witnesses who have noted the children’s wish to continue to see him. Her position was that he is seeking as much time as the court is prepared to give him. He would prefer unsupervised time, but if a supervisor was necessary, he would accept that. She submitted that the father had accepted advice not to continue the trial. His attitude was that he had no wish for further litigation. He was prepared to concede that if the matter in any way was to be further litigated, it was appropriate to re-list the matter before myself. She submitted that the father wanted some holiday time with the children. She submitted that there was no evidence that the father had sexually abused the children. She sought an order in terms that the father have telephone communication, etcetera, and the father was content for letters and emails to be vetted by the mother.
In the next paragraph, his Honour said:
It was submitted that the father was prepared to accept an order for ongoing drug tests. It was submitted that the father was aware that there will be restrictions because of his past behaviour, but the bottom line was that he loves his daughters and the evidence was that they love him.
In my view, the conduct of the case described in the passages to which I have referred will somewhat restrict and circumscribe the types of argument that the father could hope to successfully put forward in an appeal.
Perhaps of some significance to what I have described as inconsistent positions taken by the father, and perhaps the position of the father in now seeking to appeal, not so much as to his genuineness, but simply as affecting the assessment of where the justice in this case lies, his Honour Barry J continued in paragraphs 110 and 111:
I am mindful that the father has given instructions and assurances in the past and later resiled from the stated position. Whilst the father may have been instructing his solicitor that he has no wish for further litigation, it may well be if he does not get his way, he would be minded to pursue that avenue.
Finally, in terms of the context in which the proposed grounds of appeal are to be assessed, in paragraph 127 his Honour said:
The critical issue, by the end of the hearing, was whether the father’s time should be supervised or unsupervised.
I merely interpolate here that in relation to the issue of sole parental responsibility, whilst in the judgment there is no express concession recorded or absence of any opposition to such an order recorded, certainly the tenor of those passages which I have read and will conclude reading do not make it obvious that there was any real opposition to an order for sole parental responsibility. In any event, having said that the critical issue by the end of the hearing was whether the father’s time should be supervised or unsupervised, his Honour referred to Ms J’s recommendations and then continued:
The father, at this stage, in effect, capitulated, and did not seek to further challenge the mother’s case. The children have been experiencing supervised time with their father, as a result of the orders made at the conclusion of the trial in February last year. The matter has not been referred to me on the basis that there has been any problems between the father and those in charge of the operation of the contact centre.
And then finally, on the matter of parental responsibility, his Honour said:
The mother sought an order for sole parental responsibility. I am conscious of the presumption for joint responsibility, as set out in the legislation, but the father’s ongoing behaviour leads me to conclude that he lacks judgment and is unable to cooperate with the mother to any meaningful extent. The fact that he is banned by the school would make an order for joint parental responsibility difficult to enforce.
Against that context, I refer to the proposed grounds of appeal, as first put forward by the father. To some extent, they have been superseded, although there is still a commonality between them and the present proposed grounds of appeal, and in considering the prospects of the appeal and the question of what I prefer to refer to as inconsistency, perhaps, in stances that the father takes from time to time, rather than the question of genuineness, as such, I think these initial grounds of appeal remain of some pertinence.
The first proposed ground of appeal was that the judgment and reasons for judgment handed down by Barry J on 3 March 2009 contained several inaccuracies of a significant nature, and demonstrate a clear bias against the father by Barry J. This bias by Barry J has led to a judgment being handed down which is not in the best interests of the children. I am advised that this notice of appeal was drawn without legal assistance. Nonetheless, there is no ambiguity about the assertion that the first ground of appeal was bias by the trial judge.
In her submissions in response to the application for extension of time, prepared before the latest proposed grounds of appeal were drawn to her attention, Ms Barbour made what seemed to be a reasonably forceful reply to the merits of that ground by pointing out those passages which I have already read, indicating consent by the father to the matter returning to Barry J if there was further litigation, and pointing out that there had been no objection taken at any time to Barry Js continuation of the proceedings he determined. That ground has now been abandoned, in the sense that it does not form part of the proposed new grounds.
The second ground related to the discretionary aspect of ordering long-term supervised contact, and asserted an incorrect application of the provisions of the Family Law Act. Those matters are substantially repeated in the grounds of appeal now proposed. Those grounds include that his Honour erred in the exercise of the discretion to order that the mother have sole parental responsibility. On the basis of what the reasons disclose, as I have already discussed, and in the absence of anything to show why, or in what way, the exercise of discretion in this regard miscarried, I see no realistic prospect of success of that ground.
Secondly, that his Honour erred in the exercise of his discretion to order a long-term supervised time with the children. Now, this ground is probably the one that attracts attention the most, because there has been considerable discussion in this court about the undesirability of long-term supervised time between children and a parent. However, it is not the position that such an order may, in a particular case, not be the best order. In this case, his Honour gave reasons for the result that he reached in relation to ordering supervised time, and, as I have raised during submissions, we are not here dealing with an order likely to stretch years and years ahead of young children with little prospect of alteration.
These children are close to ages where there will be significant changes to, in the ordinary run of events - and I do not thereby mean this is such a case, but in the ordinary run of events, their wishes would soon enough carry considerable weight. Whilst there is some variation, often, between the weight that might be given by any particular judge to the wishes of a five-year-old, as against an eight-year-old, perhaps there is no more significant time in a child’s life in terms of the weight to be given to their wishes than when they enter their teenage years. The degree of cognitive development and the degree of moving towards independence of teenage children often means that the two or three years between pre-puberty and post-puberty are telling, in terms of the weight that ought to be given to their wishes. I would not place too much weight on that as a matter diminishing the prospects of this ground of appeal, but in my view, it is a relevant matter.
Apart from a couple of matters relating to evidence, to which I will shortly refer, I am not assisted in any further consideration of supposed errors in the exercise of discretion resulting in the order referred to. I would, again, assess this ground of appeal as having poor prospects of success.
The next ground is that his Honour erred in his findings of fact of what is in the children’s best interests. No particular finding of fact is said to be in error. That, of itself, in my view, indicates poor prospects of success.

Finally, the ground is that his Honour erred in his application of the principles - I note not the principles, but the application of the principles, which is really part of the resolution of the matter - the principles under section 60CC of the Family Law Act. Again, subject to what I will say, there is no assistance with any particularity, and the process of resolution has not been specifically challenged. I would assess, also, this ground of appeal as having poor prospects of success.
Mr Burridge, counsel for the father, argued that there was authority to say that the court ought have regard to the prospects that proposed grounds of appeal will be amended, and challenges more specifically articulated. No doubt, that might be an appropriate approach in a particular case. This is not such a case, in my view. This is the second set of grounds of appeal, and subject to a discussion to which I said I will come, there was no articulation which would assist me in anticipating in any way what the challenges on appeal might be, if they are to be other than those put before me.
This is an instance in which the proposed grounds of appeal must be scrutinised, rather than something that someone might imagine might be grounds of appeal. The position might be different if a judge, hearing an application such as I am hearing, had him or herself perused a judgment and become concerned about some aspect of the process. I have perused the judgment. I have developed no such concerns.
Mr Burridge has referred to findings that the trial judge made in relation to the evidence of Ms J, who prepared, I think, four family reports. She had in her reports recommended that there be unsupervised time between the father and the children. However, his Honour, at paragraph 81 of his reasons, said:
In the course of her oral evidence, [Ms J] agreed that on the basis of the facts as outlined to her, the father’s time with his daughters should be supervised.
This is highlighted by Mr Burridge as showing a possible or even, likely, focus on appeal: in other words, the difference between Ms J’s initial recommendations and her final position. However, there is no reason for that to be the focus of any attention by an appeal court unless somehow it is shown that the movement in opinion of Ms J is unsupported, irrational, or should not have been described and acted upon by the trial judge as he did. That is not the contention.
A similar argument is applied to the trial judge’s treatment of the evidence of Dr Z, the clinical neuropsychologist to whom I referred earlier. His Honour did not place weight on an opinion - not all opinions, but an opinion - expressed by Dr Z, as he described in paragraphs 85 and 86 of his reasons. However, the position is exactly the same as I have described in relation to Ms J. Nothing about that, of itself, indicates error.
Overall, I would conclude that the proposed appeal is very unlikely to succeed. Notwithstanding that, it seems to me that there are two viable choices for this court. What I have said in relation to the explanation of delay and the attempt by the father to appeal within time encourages an extension of time. Whilst the father has now no such right, he lost it in circumstances that deserve, I think, some sympathy from a court hearing an application such as he now makes.
However, if I did grant an extension of time, I would be doing so in respect of an appeal which I have just described as “very unlikely to succeed.” That causes close scrutiny in relation to whether or not the justice of the case really lies in granting an extension. There must be a concern, having concluded, as I have, in relation to the prospects, that, in fact, it is not just to allow a proceeding highly likely to fail to go ahead. Moreover, if I was minded to grant the extension notwithstanding my view of the prospects, inevitably, in my view, this would be a case where security likely to cover the costs of the wife - that is, at a minimum of $19,500, on the evidence of the mother, and not really called into question before me, would be ordered. And I would make that order, notwithstanding that I would conclude that that was likely to stifle the appeal. I would make the order that the security be paid within a limited time, about a month, and if not paid, the appeal be dismissed. Again, the likely result would be that the appeal would effectively be stifled.
If I made an order, however, despite what I have said, to maximise the chances of the father eventually providing security, that would be, in my view, a very unsatisfactory course, having regard to the uncertainty that that would lead to for the mother, probably for the children, and as to the time at which an appeal might be determined in any event.
I have concluded, because of these matters, that the proper result in relation to these applications is that the application of the father for an extension of time be dismissed, and as a consequence only of the dismissal of that application, that the application by the mother for security for costs be also dismissed.
The dismissal of the application for security on the reasons I have given does not indicate in any way that it was unmeritorious or unnecessary, and indeed, on the reasons that I have given, was an application to which, had I granted the initial application, I would have acceded to. The nature of the application that initiated the hearing today is one in which, whilst I have accepted the explanation for the need for it and expressed some sympathy for the circumstances, nonetheless was one in which the father sought an indulgence from the court to restore a right which he lost.
It, of course, is in respect of, in common parlance, a second bite at the cherry. The question of parenting arrangements between the children has already been determined, after four days, at least, of hearing; and the father seeks, on grounds which I have expressed my view, to re-litigate those issues. The nature of the applications are such, in my view, as to encourage an order for costs in the event of their failure, which has occurred. I have already made remark about the father’s financial circumstances; I have them well in mind. But in my view, the proper order is that the father pay the mother’s costs of and incidental to the application for an extension of time and the application for security, as agreed and in default of agreement as assessed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate:

Date: 3 September 2009