Harley-Dean and Dean
[2012] FamCAFC 67
•22 May 2012
FAMILY COURT OF AUSTRALIA
| HARLEY-DEAN & DEAN | [2012] FamCAFC 67 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for an extension of time to file appeal – Where the applicant mother is one month out of time – Where the period of delay was short and included the Christmas/New Year holiday period and absence overseas – Where the delay is sufficiently explained and does not impede the granting of an extension of time – Where the proposed grounds of appeal raise issues of procedural fairness and errors in the exercise of the trial judge’s discretion – Where the parties were required to provide draft orders in accordance with the reasons for judgment prior to receiving the reasons in written format – Where the unchallenged recommendation of the family consultant was not adopted by the Federal Magistrate and no reasons were provided – Where there is sufficient merit in the mother’s proposed appeal to make an extension of time appropriate – Application allowed. |
| Family Law Act 1975 (Cth) Clivery & Conway [2007] FamCA 1435 |
| APPELLANT: | Mrs Harley-Dean |
| RESPONDENT: | Mr Dean |
| FILE NUMBER: | BRC | 8831 | of | 2007 |
| APPEAL NUMBER: | NA | 11 | of | 2012 |
| DATE DELIVERED: | 22 May 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 22 May 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 November 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1294 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Waterman |
| SOLICITOR FOR THE APPELLANT: | Davey Law |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
The time for the mother to file a Notice of Appeal out of time against the orders of Federal Magistrate Howard made on 9 December 2011 be extended to
8 June 2012.
The matter be adjourned to the Regional Appeals Registrar for the making of directions for the hearing of the appeal by a single Judge of the Appeal Division of the Family Court of Australia.
That there be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harley-Dean & Dean 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 11 of 2012
File Number: BRC 8831 of 2007
| Mrs Harley-Dean |
Appellant
And
| Mr Dean |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern an application by the mother for an extension of time in which to file a notice of appeal against orders made by Federal Magistrate Howard on 9 December 2011. Reasons for those orders were delivered orally on 21 November 2011 and in written form on
30 November 2011.
On 6 February 2011 the mother filed an application in an appeal seeking an extension of time. She is therefore approximately one month out of time in filing her appeal.
The orders made by the Federal Magistrate on 9 December 2011 discharged earlier final parenting orders in respect of two of the parties’ four children, born February 1999 and May 2001. The age of the children and the need to resolve the dispute about future high schooling arrangements were considered by the Federal Magistrate to justify the Court’s intervention to vary the earlier final parenting orders, in accordance with the principle in Rice & Asplund (1979) FLC 90-725.
By her draft notice of appeal the mother seeks to only appeal orders 1, 2 and 3, which primarily concern the parties’ time with child A. If the application is allowed, in the appeal she asks that the matter be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Howard. It is apparent from the submissions of Mr Waterman of counsel, who appeared for the mother on this application, that the mother complains about various aspects of the hearing and the orders made by the Federal Magistrate.
The first is, as a litigant in person she was not made aware of trial processes and specifically that there was procedural unfairness by requiring her to file a draft of the orders sought after the hearing, but before having an opportunity to read the reasons. In addition, neither party was given an opportunity to see the draft orders of the other. Secondly, it is submitted that the orders were contrary to the recommendations of the family consultant, Ms [R], whose expert evidence was unchallenged.
As will be explained, part of the mother’s proposed appeal relates to other orders also made 9 December 2011. It is as well then to set out all of the orders made by the Federal Magistrate which may be relevant to the mother’s appeal, should she be successful in this application.
1.That the orders dated 6 July 2007 remain in place until
23 January 2012 but are thereafter discharged.
2.That [child A] born […] February 1999 live in alternating weeks with each parent, and that the changeover occur at the end of school on each Monday commencing the school week, unless there is a pupil free day or public holiday, in which case the next school attendance day. The initial changeover is to occur on Monday
23 January 2012.
3.That the mother spend time with and communicate with [child A] at all times as agreed between the parties, but failing agreement as follows: -
(a) that pursuant to Order 2 above, the mother’s weekend time with [child A] will coincide with the mother’s time with [child B] born […] May 2001, so the brothers spend time together;
(b)each year, for the entire holiday periods between School terms 1 and 2, and School terms 3 and 4. These periods shall commence from the end of school on the last day of attendance and finish upon his return to school on the first attendance school day following this break;
(c)for half the Christmas school holiday period, being the first half in even number years, and the second half in odd number years. This will coincide with the mother’s time with [child B], so the brothers spend this time together;
(d)if the mother’s birthday … falls on a day when [child A] is with his father, then the mother is to collect him at 5.00 pm. on [the day before the mother’s birthday] from the father’s residence and return him at 7.00 p.m. on [the mother’s birthday];
(e)if Mother’s Day falls on a day when [child A] is with his father, then the mother is to collect him from the father’s residence at 5.00 p.m. on the evening before Mother’s Day, and return him at 7.00 p.m. on Mother’s Day;
(f)if Father’s Day falls on a day when [child A] is with his mother, then the father is to collect him from the mother’s residence at 5.00 p.m. on the evening before Father’s Day, and return him at 7.00 p.m. on Father’s Day.
4.That [child B] live with the mother.
5.That the father spend time with and communicate with [child B] at all times as agreed by the parties, but failing agreement as follows: -
(a) each alternate weekend from after school Friday until before school Monday when dropped off at school, unless there is a pupil free day or public holiday, in which case the father will return the child to school the next school attendance day;
(b)that pursuant to Order 5(a), the father’s weekend time with [child B] will coincide with the father’s time with [child A], so the brothers spend this time together;
(c)each year, for the entire holiday period between School terms 2 and 3, to commence after school pickup on last day of attendance to return to school on the first attendance school day following this break;
(d) for half the Christmas school holiday period, being the first half in odd numbered years, and the second half in even numbered years. This will coincide with the father’s time with [child A], so the brothers spend time together;
(e)if the father’s birthday falls on a day when [child B] is with the mother, then the father is to collect [child B] at
5.00 p.m. on the day before the father’s birthday and return him at 7.00 p.m. on the evening of the father’s birthday;
(f)if Mother’s Day falls on a day when [child B] is with his father, then the mother is to collect him from the father’s residence at 5.00 p.m. on the evening before Mother’s Day, and return him at 7.00 p.m. on Mother’s Day;
(g)if Father’s day falls on a day when [child B] is with his mother, then the father is to collect him from the mother’s residence at 5.00 p.m. on the evening before Father’s Day, and return him at 7.00 p.m. on Father’s Day.
For reasons which will become clear, it is also necessary to set out the orders relating to the secondary schooling of the children and the corresponding order relating to the father’s primary residence:
Secondary Schooling
9.That the father shall maintain his primary residence sufficient to satisfy the [school X] local catchment area requirements for [child A] to attend [school X] throughout his high school years.
10.That [child A] shall attend [school X] throughout his high school years commencing Year 8 in 2012.
11.That each party pay 50% of high school fees and all other high school related costs for [child A] at [school X].
12.That both parents equally share the financial responsibility and facilitate [child B] sitting the [school Y] scholarship exam relevant to the [school Y] Trustees’ Scholarships or Bursary scholarships entry for Year 8 in 2015. If he is successful in obtaining such a scholarship then [child B] shall attend [school Y] and each party shall share equally the remainder of his high school fees and all other high school related costs.
13. That in the event of [child B] being unsuccessful in obtaining a scholarship to [school Y] as detailed in Order 12: -
(a)then he shall attend [school X] commencing Year 8 in 2015, and each party shall pay 50% of high school fees and all other high school related costs for [child B] at [school X]; and
(b)the father shall maintain his primary residence sufficient to satisfy the [school X] local catchment area enrolment requirements for [child B] to attend [school X] throughout his high school years (commencing Year 8 in 2015).
Background
In the reasons for judgment first delivered orally on 21 November 2011, the Federal Magistrate outlined the background relevant to these proceedings.
The Federal Magistrate explained that the parties married in 1987 and separated on a final basis in February 2005. The parties have four children, two of whom are over the age of 18. The two younger children, boys, now in year 8 and year 5, are the subject of these proceedings.
It was explained that the mother lives in the former matrimonial home at suburb E and the father lives in suburb D with the mother’s brother, however the father also spends time with his current partner at an address in suburb H.
The Federal Magistrate noted that there were final parenting orders in this case, made by Federal Magistrate Connolly after a trial in 2007. Those orders provided for the children to live primarily with the mother and spend alternate, extended weekends with the father. It was said that there had been some difficulties in the operation of those orders, as the parents were unable to agree how the alternate weekend arrangement was to resume after holiday periods. The orders made by the Federal Magistrate on 9 December 2011 discharged the earlier final parenting orders made 6 July 2007.
It appears that the Federal Magistrate delivered reasons on 21 November 2011, however a written copy of the reasons was not provided to the parties until
30 November 2011. In any event, an order was made on 21 November 2011 providing that “the parties within seven (7) days of the date of this Order submit to the Court draft Orders to reflect the Reasons for Judgment”. On
29 November 2011 the mother sent her proposed draft orders to the Federal Magistrate’s associate. The orders the subject of the mother’s proposed appeal were made on 9 December 2011.
A transcript of proceedings on the court file indicates that on the day of the hearing in court, the Federal Magistrate informed the parties of his decision to make orders that would reflect arrangements that the child A would not attend school Y and would live on a week about basis with each parent. It is also apparent from the transcript that at the conclusion of the hearing, the Federal Magistrate indicated to the parties that he would ask them both to send in orders to reflect the reasons for judgment within seven days.
Reasons of the Federal Magistrate
The Federal Magistrate considered the primary dispute between the parties in the proceedings before him to be the schooling arrangements for child A, now in year 8, who at the time was soon to be entering high school. The mother sought that the child attend school Y, whereas the father preferred he attend school X.
The Federal Magistrate acknowledged that another issue flowed from the schooling disagreement, that of child A’s time with the father. It is apparent then that the Federal Magistrate considered the choice of school for child A to be the immediate consideration, together with the question of whether the living arrangements for child A should be changed.
It is clear from the reasons for judgment that the primary consideration in determining which school child A would attend was the financial capacity of the parties to pay the school Y fees. The Federal Magistrate noted that the current rate of school fees was approximately $19,270. His Honour considered at length the parties’ ability to pay these fees, and the impact this would have on the best interests of the children and their parents:
25. … As I have indicated earlier, though, I have come to the conclusion that the financial pressures that would be placed on both the father’s household, and even more so upon the mother’s household, are so great and it would involve such a diversion of resources into payment of school fees, that it could not, on the available evidence, be seen as being in the best interests of the boys to allow that to occur.
The orders made by the Federal Magistrate provided that child A attend
school X throughout his school years, commencing in year 8 in 2012. The mother does not seek to appeal these orders, and it may therefore be seen that the parties are no longer in dispute about the schooling arrangements for
child A.
It should be noted that in respect of the parties’ time with child A which is the issue in the proposed appeal, the draft orders submitted by the mother do not significantly differ from the final orders made by the Federal Magistrate. The mother proposed orders that child A live on an alternative week basis with each parent, that the children attend school X, and that the father spend time and communicate with both children during school holidays, and on the father’s birthday and Father’s Day.
However, in fairness to the mother, her understanding would reasonably have been that the draft orders were to be in accordance with the reasons heard by her orally on 21 November 2011. The orders which in her view ought to have been made may have been quite different to those foreshadowed by the reasons and directions of the Federal Magistrate.
As will be explained, part of the mother’s proposed appeal relates to orders which she says ought to have been made and were not made. Those proposed orders of the mother concerned the husband’s living arrangements, specifically that:
3. That the father […] shall remain living in the catchment area for [school X] until [child B] finishes Year 12 in 2019. The father may rent or buy property within the geographical bounds set by [school X] local area catchment requirements. The father is to move out of his current residence at [suburb D] as soon as practicable, but no later than the end of the current lease on 29 September 2012. After the father ends his current lease at [suburb D], the father is required to maintain his own residence (either renting or purchasing) and is not allowed to share with another person save and except his partner […] and her children.
It is relevant therefore to set out the part of his Honour’s reasons which addressed the husband’s living arrangements:
26.The father’s [suburb D] address appears, or it seems that it is accepted that that is the way that the father has been able to secure enrolment for [child A] at [school X]. I infer, at least, that at one level the mother can see that there are some benefits for [child A] to attend [school X]. It seems [child A] may, in some respects, be almost expecting it. The situation is, the evidence discloses from [the father] that if [child A] is accepted into [school X], it does not necessarily mean that his sibling, young [child B], will automatically be accepted. That will mean that in order to secure [child B’s] attendance at [school X], the father will need to remain living within the catchment area of [school X], at the very least until [child B] is enrolled and is attending the school.
27.Even then, I am not sure what would be the precise situation if the father left the catchment area. The father’s evidence is that he has been told by the school that they do not exclude children on that basis, but there is no clear evidence in that regard. It would be surprising, I must say, if the school was to do that. [Child A] is a bright child. He sat for the scholarship examination for [school Y], but unfortunately he did not achieve the scholarship…
28.…The specific matter for determination today, though, relates to [child A]. [Child A] has a place secured at [school X]. There are no tuition fees. It costs $30 per subject. There will, of course, be the accompanying costs with any education: school uniforms, books and the like, I imagine.
29.The orders will need to reflect the Reasons for Judgment to this extent. The father will have to live within the catchment area of the [school X]. I foreshadowed this with the father during the course of today’s proceedings. This may well mean that he has to make particular choices concerning his work and his career, at least within the time frame that I have outlined, namely, [child A’s] attendance at [school X] and [child B’s] chances of enrolment at [school X]. I think the highest I can put it is this. The father, really, is going to have to remain living in the catchment area of [school X] until [child B’s] high school education plans are set.
30.He may or may not achieve a scholarship to attend the [school Y]. If he does not, then the orders should reflect that he attend [school X]. In order to achieve that, there has to be in place an order requiring the father to remain living in the catchment area of [school X] to the extent needed to secure and maintain the enrolment of [child A] and [child B] at that school. The father may or may not be able to afford to purchase property within that catchment area, and if he is unable to purchase property within that catchment area, he will have to rent property within that catchment area, but there does not seem to me to be any other alternative in the circumstances of this case.
31.It is an order which is restrictive of his rights of movement and liberty. The Court does have power to issue such an injunction; that was recognised by the Full Court of the Family Court of Australia in Sampson & Hartnett (No.10) [2007] FamCA 1365 (22 November 2007). Such an order would only be put in place to the extent necessary to secure the best interests of the children, and that is precisely what I have in mind in this case: an order to be put in place concerning the issue of the father living in the catchment area of [school X] to the extent necessary to both secure and maintain the enrolment in that school for [child A] and [child B]. (At the conclusion of these reasons, I am going to call upon the parents to make a further submission on the types of orders they would want for [child B], and I will explain that further at the conclusion).
(emphasis added)
It is apparent from the draft notice of appeal and submissions by her counsel that the mother also takes issue specifically with the Federal Magistrate’s failure to adopt the recommendation of the family consultant that any change to child A’s living arrangements not be made until the father had established a new residence. It is necessary therefore to consider both the relevant parts of the family consultant’s memorandum to the Court, and the Federal Magistrate’s reasons where the memorandum was referred to.
The family consultant was not cross-examined, the evidence in the memorandum was not challenged. The family consultant’s memorandum included the following observations and recommendations:
The father states he lives in [suburb D] with the mother’s brother, he also spends time with his partner at [suburb H]. [Child C] also shares the [suburb D] house. She has been living here since January 2011. The parents dispute the size of the [suburb D] house with the mother stating it is a two bedroom house and the father stating it is a three bedroom house. The mother states the father lives primarily in [suburb H] with his partner.
The mother and her brother […] do not enjoy a close relationship. The parents agree that [he] suffers with a bipolar disorder.
The father intends to purchase a house with his partner in the [school X] catchment area.
…
Issues remaining in dispute
The issues the parties have in dispute are:
·The secondary school the boys attend
·The ability of the parents to meet the fees of [school Y]
·Where the boys live from 2012
·The actual residence of the father and therefore his eligibility to send the boys to [school X] under the provision of the catchment area. If the house in [suburb D] can physically accommodate the boys.
·Fees for medical and dental procedures
…
Children’s views and relationships:
…
[Child B] said that his father lived with [his partner] and that [she] was nice. He also said the house where he stayed with his dad was “old and bad” he said his uncle had 3 dogs which was good as he liked playing with them.
…
[Child A] said his father’s house is very crowded and he did not like the three dogs of his uncle. He described these dogs as being untrained and of going to the toilet in the house.
…
When talking of schools for next year [child A] said that if he lived with his father it would be convenient to go to [school X] as it is close by. He said if he was living with his mother he did not mind where he went.
…
[Child A] also expressed concern that changing the current situation could make things worse although he was unable to elaborate what that meant. [Child A] ultimately thought he would like to spend equal time with each parent.
Evaluation
Clearly the most pressing issue to resolve is the schooling for [child A] in 2012 when he commences his secondary education. At this stage he has a confirmed position at [school X]. The mother would like him to attend [school Y] although recognised that he is unlikely to now get a position for the beginning of term one. The mother would like to be able to revisit the option of attending [school Y] if a position comes up during the year.
The school fees are significant however the mother states she is willing to meet the majority of the costs with the father paying the equivalent of ½ the fees charged by [school Z] (his second choice of school). The ability of the parents to meet the school fees is beyond the scope of this memo.
…
At this stage it is not certain where the father will be living as he intends to purchase a house once the school issues are resolved. It would be helpful if the father was settled in his residence before a final evaluation of the boys [sic] living arrangements are made. At present the boys share a room with their father when they stay at the [suburb D] house which is not ideal for long periods. The boys also appreciate having time where they can have space from one another.
…
Future Directions
A final decision about funding [school Y] school fees needs to be resolved. If it is found that attending [school Y] is financially viable after [child A] has commenced at [school X] then [child A’s] opinion should be sort [sic] before a decision is made for him to leave [school X].
The time the boys spend between their parents [sic] households should be resolved after the father has established his living arrangements.
In the reasons for judgment the Federal Magistrate referred to some parts of the family consultant’s memorandum:
32.Exhibit 1 today is a report by a family consultant the parties saw, Ms [R], family consultant. On 14 November 2011, the parties were interviewed and [child A] and [child B] were also interviewed.
33.[Child B], also known as […], spends most of his time at his mother’s house. He would quite like to have a bit more time away from [child A]. It seems that the boys might be at a stage in their development where they annoy each other, if I can put it that way, at least on occasions. [Child B] seems well settled with his extracurricular activities.
He plays rugby, he plays club soccer, he hopes to join a cricket team, he plays the cello. He wishes his mother did not yell at him so often. I am sure that is not an uncommon complaint from young boys, and not just in relation to mothers but fathers as well. He is not too happy with [child A] teasing him.34.[Child A], unfortunately, is quite stressed about all of these events and this Court case. Ms [R] stated:-
“He was teary during the interview and clearly finds his parents’ dispute stressful.”
35.There needs to be a resolution quickly for his sake. He, like all of the [Dean] children, is very intelligent. He enjoys maths, science and technology. He dislikes art and music.
36.I note there that could lead to some issues with [child B] straightaway, noting that [child B] plays the cello. Ms [R] stated, inter alia:-
“[Child A] plays touch football for the school team and has also played hockey.
[Child A] said at his father’s house they use the cricket nets of [suburb D] School and they go on bike rides. He said his father’s house is very crowded and he did not like the three dogs of his uncle He described these dogs as being untrained and of going to the toilet in the house.”
37.[Child A] did talk to the family consultant about schools. He said that if he lived with his father it would be convenient to go to [school X], as it is close by.
“[Child A] said that he would like to spend more time with his father. He thought his time with his father was more ‘joyful and more healthy’ (as they do more exercise with their father). He also expressed concern that changing the current situation could make things worse although he was unable to elaborate about what he meant. [Child A] ultimately thought he would like to spend equal time with each parent.”
(underline emphasis added)
Counsel for the mother specifically referred to parts of the report not referred to by the Federal Magistrate in the reasons for judgment, especially the consultant’s final sentence that “the time the boys spend between their parents [sic] households should be resolved after the father has established his living arrangements”. It was submitted that the Federal Magistrate should not have made final orders until the father’s living arrangements were settled. It is apparent from the reasons that a number of issues raised by the children and the parents were not directly considered.
Extension of Time Principles
In Clivery & Conway [2007] FamCA 1435 the well known principles referable to extension of time applications were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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 considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
In this matter the explanation for delay will be discussed first, followed by a consideration of the merits of the appeal. The husband, by his response filed
18 May 2012, opposes the mother’s application on the basis of insufficient explanation for the delay and a lack of merit in the proposed appeal. It is his contention that the children are now settled, in particular that child A has commenced school, and that an appeal would in effect be futile.
Explanation for the Delay
As was explained, the mother is approximately one month out of time in filing her notice of appeal. The following is a summary of the mother’s explanation for the delay as set out in her affidavit filed 6 February 2012.
·On 9 December 2011 the orders the subject of this proposed appeal were made
·On 12 December 2011 the mother flew overseas for approximately three weeks
·On 1 January 2012 the mother asked a friend to scan and email the orders of 9 December 2011 which had been received by mail
·On 3 January 2012 the mother emailed the Federal Magistrate’s associate raising concerns about the orders
·On 6 January 2012 the mother returned to Australia from overseas
·On 16 January 2012 the mother, not having received a response to her earlier email, again emailed the Federal Magistrate’s associate. The associate replied on this day, advising the mother it was inappropriate for her to communicate with the Court without the consent of, or notice to, the father. Later that day the mother emailed the associate and the father, outlining her complaints about the orders.
·On 17 January 2012 the associate replied to the mother and included the father, advising that such correspondence to the Court and the Federal Magistrate was inappropriate. The associate advised that the Court is unable to provide legal advice, and provided the contact details of Legal Aid Queensland.
·On 18 January 2012 the mother contacted the Women’s Legal Service and requested referral to a solicitor.
·On 25 January the mother attended a consultation with Davey Law, who are now acting for her in this application.
In written submissions handed up at the hearing today, counsel for the mother summarised the delay submitting that, “taking into account the Christmas, New Year period and the Applicant Mother not receiving a copy of the orders until
1 January, 2012, whilst overseas, being a period of approximately 26 days after the Order was made in the absence of either party that the Applicant Mother in view of those circumstances took all necessary steps in a timely manner to ascertain her legal position and file the present application”.
In his response, the father claims that the mother was fully aware of the appeal period. He submits that when the appeal period passed, having received no correspondence from the Court relating to any appeal of the orders, he believed that the mother had accepted the Court’s decision. The father says he continued making arrangements for the child A as per the new orders.
It is apparent that the mother did seek to agitate her concerns, albeit in an inappropriate manner, and that both parties were unrepresented at the time. It is also relevant to her explanation for the delay that a significant time in which the appeal was to be filed was made up of the Christmas and New Year period, during which the Court and many of the legal services in Brisbane are closed or offer only limited services, and many people reasonably spend time overseas. In these circumstances, I consider the explanation for the delay to be sufficient, especially as it is for a short period, the delay would not be an impediment to allowing an extension of time.
Merits of the Appeal
In the draft notice of appeal the mother seeks orders that the application for parenting orders be remitted for a priority hearing by a Federal Magistrate other than Federal Magistrate Howard.
The mother’s draft grounds of appeal raise a range of general complaints about a lack of adequate reasons, and a failure to afford procedural fairness. Some more specific and detailed complaints are raised and may be summarised as follows:
1.The Federal Magistrate failed to afford the mother procedural fairness in requesting that the parties provide proposed orders which reflected the reasons for judgment in circumstances where:
a)the Federal Magistrate did not provide for the parties to exchange and consider their respective draft orders;
b)the mother did not have the opportunity to consider the reasons for judgment prior to submitting her draft orders because the revised edited reasons were not received until after
30 November 2011; andc)the mother did not have the opportunity to make further submissions after considering the reasons for judgment and the draft orders of the father.
2.The Federal Magistrate erred in not giving any or sufficient weight to :
a)the unchallenged evidence of the family consultant, which in respect of the child [A] was his reporting that the father’s house was crowded and there were dogs which were untrained and went to the toilet inside the house; and
b)the recommendation of the family consultant that the time the boys spend between the two parents’ households should be resolved after the father had established his living arrangements,
therefore giving no or insufficient weight to the best interests of the children.
3.The Federal Magistrate erred in giving undue weight to the alleged tenancy agreement between the father and the mother’s brother dated 29 September 2011 for a period of 12 months and accepting the father’s untested evidence that he was bound by the tenancy agreement in circumstances where:
a) the evidence on any view indicated that the landlord would be in breach of his obligations under any alleged lease; and
b) the evidence on any view indicated that the living arrangements were inconsistent with the children being provided with an appropriate environment in which to live.
4. The Federal Magistrate erred by indicating at the hearing that he would make various orders in respect of the father’s residence, but then providing inadequate reasons in the reasons for judgment for failing to make those orders (transcript references included).
In oral submissions counsel for the mother acknowledged that the mother’s draft notice of appeal would require some amendment before being filed should an extension of time be granted. Counsel clarified that the mother would pursue the first two grounds, and would likely also seek to appeal against other orders.
The first proposed ground is that the mother was denied procedural fairness in the conduct of the trial, specifically because no explanation as to the process to be followed, both in conducting the trial and providing draft orders to the Court, was delivered by Federal Magistrate to the parties, who were both self-represented. Second that the Federal Magistrate erred by not giving sufficient weight to the evidence and recommendations of the family consultant, and further erred by not providing sufficient reasons for his Honour’s decision not to follow those recommendations.
In respect of the first ground, there is no requirement in the legislation or any authority that a Federal Magistrate should allow parties to exchange draft orders prior to them being made finally. Nor is there is a requirement that parties be allowed to make further submissions after receiving reasons for judgment or another party’s draft orders.
That the reasons for judgment were not provided to the parties in a written format before 30 November 2011 may give some weight to the mother’s complaint. However it is clear from the transcript and is not disputed by the mother, that the reasons were substantially delivered on 21 November 2011 and the Federal Magistrate was clear about what arrangements the orders were to reflect.
The chance of success of this ground of appeal is therefore marginal, other than to observe that the practice of asking parties to draft orders after the oral delivery of reasons is inherently dangerous. It is appreciated that this course is often taken because of the pressure of work and to invite parties to agree on orders which best suit them. On this occasion it has led to the difficulties about which the mother complains.
Ground two asserts that Federal Magistrate failed to reach a decision in the best interests of the children by failing to give weight, or sufficient weight, to the family consultant’s evidence and recommendations. This evidence and recommendations has been set out in detail above. The mother submits that the family consultant was not cross-examined, and nor was her evidence challenged. The mother emphasises in particular the evidence that child A had reported the father’s house was overcrowded and dogs urinated inside the house, and the recommendation that the living arrangements for the two boys should be resolved after the father had “established his living arrangements”. Submissions about weight to be given to evidence and asserted errors in the exercise of the Federal Magistrate’s discretion face the obstacles in an appeal as set out in House v The King (1936) 55 CLR 499.
However, the reasons do not reveal why the Federal Magistrate was of the view that the apparent recommendation of the family consultant did not need to be followed, in circumstances where his Honour made a substantial change to living arrangements for child A on a final basis.
Possible Prejudice
It is necessary to consider the consequences for the parties of a grant or refusal of the application for an extension of time.
In written submissions, counsel for the mother submitted that the father does not advance any basis to support a claim of prejudice and nor does the father offer any response to the grounds of appeal proposed to be advanced by the mother. Counsel noted that on 19 December 2011 the father sought clarification following receipt of the orders, and was on notice of the mother’s concerns underpinning this application, because he received her email sent to the Court on 16 January 2012.
In his affidavit in response to this application, the father submitted that any changes from the current orders would not be in the best interests of the children. In oral submissions the father explained that he could not be legally represented in an appeal as his financial circumstances would not allow it.
Conclusion
A difficulty the mother would face in an appeal is that she in essence proposed orders which were substantively the same as those made by the Federal Magistrate. In oral submissions counsel for the mother explained this by submitting that, because of the alleged lack of procedural fairness, the mother had misapprehended what she was able to submit in relation to proposed orders. Counsel thereby suggested that if the matter were to be reheard the mother would not seek the same orders. It was submitted that if the appeal was allowed, the mother would ask that the matter be reheard and an updated family report be provided.
It is apparent that for the purposes of this application for an extension of time in which to file a notice of appeal, the mother has sufficiently explained the delay, and there is possible merit in the proposed appeal.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 22 May 2012.
Associate:
Date: 22 May 2012
0
3
0