HARRELL & HANCOCK-HARRELL
[2015] FamCAFC 74
•6 May 2015
FAMILY COURT OF AUSTRALIA
| HARRELL & HANCOCK-HARRELL | [2015] FamCAFC 74 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application to file a notice of appeal from an interim parenting decision of a Federal Circuit Court Judge out of time – Where the Federal Circuit Court Judge suspended orders – Where the delay is adequately explained – Where there is no merit or utility in the appeal – Application dismissed. |
| Family Law Act 1975 (Cth) s94AAA(10) Family Law Rules 2004 r 1.14, 22.03 |
| Allesch v Maunz (2000) 203 CLR 172 Gallo v Dawson (1990) 93 ALR 479 Taylor v Taylor (1979) 143 CLR 1 Wilkes and Wilkes (1981) FLC 91-060 |
| APPLICANT: | Mr Harrell |
| RESPONDENT: | Ms Hancock-Harrell |
| FILE NUMBER: | BRC | 1164 | of | 2014 |
| APPEAL NUMBER: | NA | 21 | of | 2015 |
| DATE DELIVERED: | 6 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 5 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 February 2015 |
| LOWER COURT MNC: | [2014] FCCA 2413 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Appeared in person |
| COUNSEL FOR THE RESPONDENT: | Ms Galbraith |
| SOLICITOR FOR THE RESPONDENT: | Schultz Toomey O’Brien Lawyers |
| INDEPENDENT CHILDREN’S LAWYER: | Stewart Family Law |
Orders
The Application in an Appeal filed 19 March 2015 seeking an extension of time to file a Notice of Appeal is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harrell & Hancock-Harrell 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 21 of 2015
File Number: BRC 1164 of 2014
| Mr Harrell |
Applicant
And
| Ms Hancock-Harrell |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 19 March 2015, Mr Harrell (“the father”) filed an Application (together with an affidavit) seeking an extension of time to file a Notice of Appeal from orders made on 12 February 2015 by Judge Lapthorn.
As a result of pending criminal charges and incarceration (discussed in greater detail below), Judge Lapthorn suspended the time the father would spend with the parties’ child (“the child”), until further order. The father was not in court on the day these orders were made as he was in jail.
The child lives with Ms Hancock-Harrell (“the mother”) and is now four years of age.
On 12 February 2015, certain procedural orders were made in preparation for trial, including that the father be granted liberty to provide the family report and psychiatric report to his treating psychiatrist and/or psychologist. The father was also restrained by injunction from communicating with the mother’s legal representatives and the Independent Children’s Lawyer (“the ICL”). The proceedings were transferred to the Family Court of Australia.
Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a Notice of Appeal must be filed “within 28 days after the date the order appealed from was made”. The father was therefore approximately a week out of time when he filed the application on 19 March 2015.
I heard this application as a single judge pursuant to s 94AAA(10) of the Family Law Act 1975 (Cth) (“the Act”).
Background to the Application
The parties commenced living together in February 2008 and married in November 2008. They finally separated in December 2013.
It is uncontroversial that the father suffers a mental illness. The mother is currently, and has since separation, been the primary carer for the child. A number of interim orders have been made, including on 28 March 2014, when Judge Baumann made orders for supervised time for the child to spend with the father.
The parties appeared before me on 23 July 2014, when the father also sought an extension of time to appeal the orders made by Judge Baumann. I dismissed that application, finding that while the delay in filing may be explained; the application should not be allowed as his appeal was without merit. It was explained that the father could file an application to be heard by a Federal Circuit Court judge for the order he was seeking.
The parties appeared before Judge Lapthorn on 19 August 2014. Allegations of abuse, risk to the child and domestic violence were raised by both parties. The father sought orders increasing his time with the child. This was granted, on the proviso that a recovery order be made in the event he failed to return the child to the mother. There was evidence of abusive communication by the father to the mother and also to the ICL. Judge Lapthorn made orders restraining the parties from communicating other than for the purpose of arrangements for the child.
The parties were to appear before Judge Lapthorn again on 12 February 2015. According to the affidavit of the mother filed 5 February 2015, the father was arrested and charged with breaches of a domestic violence protection order and a breach of bail conditions. He was in custody at the time of the hearing on 12 February 2015. The court granted him leave to appear by telephone; however attempts to contact him were not successful.
In this hearing, the ICL opposed an extension of time to file an appeal. Counsel for the mother also opposed the application and provided lengthy written submissions.
Principles for an Extension of Time
Although not specifically referred to in his application, it is clear the father relies upon the discretion to make an order extending the time to appeal as contained in r 1.14 of the Rules.
Section 94AAA(10) of the Act provides that applications of a procedural nature, including applications for an extension of time within which to institute an appeal, may be heard by a single judge or by a Full Court. However, there are no further criteria contained in the Act or the Rules to assist in the exercise of discretion to extend time.
The general principles for granting an extension of time are well known. Reference is often made to Gallo v Dawson (1990) 93 ALR 479 at 480-481 per McHugh J. The full quote was set out in my reasons of 23 July 2014. The essential question is whether an extension of time to file a Notice of Appeal is necessary to effect justice, by reference to the following three factors, although they are not decisive or exhaustive:
·whether there is 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.
the basis of the application
In an affidavit filed 19 March 2015, in support of the application, the father provides some explanation of the reason for delay in filing the notice of appeal:
…
4.I was unable to attend the hearing as I was in custody on remand for charges which I am strenuously defending.
5.I did not get any notification of what had occurred at the hearing until i received mail in jail on Thursday 5th March 2015 and have no idea why the orders were suspended.
6.I was released from custody on 16th March 2015
7.The reason I am requesting an appeal is because I want the orders of 19th March re-instated as there is no unreasonable risk to my little boy…from me and he and i both love our time together.
(errors as per original)
The delay is adequately explained. The father was in custody on the due date for the filing of the appeal, and did not act with unreasonable delay once released from custody to file his Application in an Appeal for an extension of time.
Turning to the merit in the appeal, the father states the following reasons as the basis for seeking leave to appeal:
1. I was not able to attend our hearing on 12th February 2015
2.The orders of 19th August 2014 were suspended and i have no idea why
3.The orders were working well for [the child] and should be re-instated
4.Because the Respondent refuses to negotiate parenting orders in [the child’s] best interest I would like the matter to go to trial immediately as she and her family have lied to the Court in the Family Report and numerous affidavits and i want [the child] and I to get on with our life together
(errors as per original)
The grounds of appeal exactly mirror the reasons above. The orders sought by the father are as follows:
1.The Orders made by Judge Lapthorne [sic] on 19th August 2014 be re-instated with immediate effect
2.That a trial be held asap [sic] to determine facts of the matter and provide final orders
The transcript of the hearing before Judge Lapthorn demonstrates that during the hearing, counsel for the mother set out the basis for suspension of the orders for the father’s time with the child:
[Counsel for the mother]: It’s – I guess it’s a bit difficult in that [the father] isn’t able to appear by phone. It would have essentially been my submission that something needs to happen with the time. My client has particular concerns about [the father] coming back – coming out of prison and going back to essentially the status quo of unsupervised time overnight. But unfortunately, obviously we can’t be dealing with – it makes it difficult to deal with that if [the father] is not able to make submissions in respect of that.
(Transcript, 12 February 2015, p. 4, l.11)
Judge Lapthorn concluded that it was appropriate that the orders for the child to spend time with the father be suspended pending further order.
In his reasons, his Honour said:
2.The respondent to the substantive application has made an oral application that the child’s time with the father be suspended until further order. That is not opposed by the Independent Children's Lawyer. The court is always reluctant to proceed to hear matters without all parties being present. However, in the nature of this case, I am satisfied it is appropriate to do so. Whilst I do not intend to discharge the orders, I do propose to suspend them until the father has an opportunity to put his version of events before the court.
3.I am satisfied it is appropriate to suspend the child’s time with the father because of the father’s recent charges and his incarceration. I understand he is currently on remand and is unlikely to be released before 19 March. In those circumstances, I am satisfied that it is appropriate to suspend the orders. Order 3 of the orders made on 19 August 2014 is suspended until further order.
The application for an extension of time to appeal is without merit. First, a proper basis was given by the judge for the orders made, such that it could not be said that there was an error. Secondly, to allow the appeal to proceed would be an exercise in futility. The only order to be made should the appeal be allowed is that the oral application of the mother be re-heard.
I explained to the father that there would be no utility in an appeal being heard and that in the conduct of an appeal I could not re-hear a matter such as this. It became apparent that the father was concerned to ensure that he took whatever step necessary to facilitate time with his child.
The matter has been transferred to the Family Court of Australia. I was informed that the matter is listed to be heard before Forrest J on 12 May 2015. The father can file an application seeking that his time with the child be restored. The fact that the order was made in his absence is of significance. See Broughton & Broughton [2014] FamCAFC 206 (“Broughton”), where the Full Court at [25] said:
For the reasons which follow we did not agree that the power of the court to vary or discharge orders made in the absence of a party is consonant with the powers exercised in an appeal.
At [26] of Broughton the Full Court referred to the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172 and Taylor v Taylor (1979) 143 CLR 1, and also the decision of the Full Court of the Family Court in Wilkes and Wilkes (1981) FLC 91-060.
At [29] of the Broughton, the Full Court said:
…it was made clear by the Full Court in Wilkes that where a party seeks to set aside orders made in his or her absence, the proper course is to apply at first instance for an order for a rehearing rather than have the matter dealt with by way of an appeal. However, there is nothing in that decision to suggest that the ability to apply at first instance for a rehearing means that there is no right of appeal against an order made in the absence of that party…
(emphasis per original)
conclusion
There is adequate explanation for the delay, however there is neither merit nor utility in the proposed appeal. The Application in an Appeal for an extension to file his Notice of Appeal should be dismissed.
costs
At the conclusion of the hearing I asked the parties to make submissions as to costs.
Neither party sought an order as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 6 May 2015.
Associate:
Date: 6 May 2015
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