Hatzis & Hatzis
[2021] FedCFamC1A 31
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hatzis & Hatzis [2021] FedCFamC1A 31
Appeal from: Hatzis & Hatzis [2021] FCCA 1700 Appeal number(s): EAA 93 of 2021 File number(s): CAC 2635 of 2020 Judgment of: AINSLIE-WALLACE J Date of judgment: 6 October 2021 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal for an extension of time in which to appeal – Expedition of the appeal against interim parenting orders – Where the applicant sought to negotiate a change of orders with the respondent – Where time for filing the Notice of Appeal elapsed – Where the applicant was five weeks late in filing the Notice of Appeal – Where the appeal has merit – Where an extension of time is allowed – Where the application for expedition is dismissed. Legislation: Family Law Act 1975 (Cth) s 94 (repealed)
Family Law Rules 2004 (Cth) (repealed) r 22.03
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.03
Cases cited: Dobey & Shey [2019] FamCAFC 68
EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304; [2018] FCAFC 214
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Mareet & Colbrooke [2018] FamCAFC 254
Pannett & Crain [2018] FamCAFC 99
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
Number of paragraphs: 46 Date of hearing: 14 September 2021 Place: Sydney Counsel for the Applicant: Mr Geddes QC Solicitor for the Applicant Phelps Reid Foster Lawyers Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent Pearson Emerson Family Lawyers Solicitor for the Independent Children's Lawyer: Ms Cruise ORDERS
EAA 93 of 2021
CAC 2635 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HATZIS
Applicant
AND: MR HATZIS
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
6 OCTOBER 2021
THE COURT ORDERS THAT:
1.The time in which the applicant may file a Notice of Appeal against the orders of a judge of the Federal Circuit Court made on 18 June 2021 is extended to seven days from the date of these orders.
2.The application for expedition is dismissed.
3.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hatzis & Hatzis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
Ms Hatzis (“the mother”) and Mr Hatzis (“the father”) are the parents of four children; W aged 17, X aged 15, Y aged 13 and Z aged 12 (“the children”). Parenting proceedings commenced in November 2020 in the Federal Circuit Court and interim parenting orders were made on
18 June 2021.
The mother wishes to appeal those orders. However, her Notice of Appeal was not filed within the time prescribed by the then operative rule, r 22.03 of the Family Law Rules (2004) (Cth) (now r 13.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)) and she now seeks an extension of time in which to bring the appeal. The mother also seeks an order that if the extension of time is allowed the appeal be expedited.
The father and the Independent Children's Lawyer both oppose the mother’s applications. The Independent Children's Lawyer submitted, largely in line with the submissions of the father, that by the time any appeal was heard, the challenged orders were unlikely to be in force.
Background
It is helpful to set out some background to give context to this application.
The parties commenced their relationship in May 2000, they married on 8 March 2003 and their first child was born in 2004. They separated in September 2020.
It seems undisputed that the mother has drug and alcohol abuse problems.
The father commenced parenting and property settlement proceedings in the Federal Circuit Court on 19 November 2020. On 16 December 2020, the parties consented to the making of interim parenting orders (“the December 2020 orders”). Those orders provided for the children to live with the father and to spend time with the mother subject to the time being supervised. The orders required the mother and the father to submit to hair follicle testing for drug and alcohol consumption by a particular date, and also provided that for a period of 30 days from the making of the orders, each party undergo a broad screen urinalysis testing for drugs and alcohol. Each party consented to being enjoined from, inter alia consuming illicit drugs “…48 hours prior to and/or during times they spend with the children.” (Order 6.4 of the December 2020 orders.)
Shortly after the December 2020 orders were made, things went awry. W spent time with her mother between Christmas Day and 30 December 2020 in circumstances not supported by the orders. Z spent time with the mother in accordance with the orders but remained with her at the end of the scheduled time. On 5 February 2021, the father filed an Application for a Recovery Order. The matter came on for hearing before the primary judge on
17 February, by which time the child had returned to the father’s home.
On 14 May 2021, the father sought a Family Violence Order in which all four children were named as protected persons. On 17 May 2021, the mother consented to the making of that order.
The parenting matter returned to Court on 1 June 2021 for a further interim hearing. The challenged orders were delivered by telephone on 18 June 2021 (“the June 2021 orders”). Notwithstanding a request from the mother’s lawyer on 8 July 2021, the settled reasons were not provided to the parties until 26 July 2021 and, by then, the time for filing the appeal had passed.
The June 2021 orders provided that all of the children including the oldest child, who, it seems, was at that time living with the mother, live with the father although Order 2 anticipates that the oldest child could live either with the father or her paternal grandmother and Order 3 provides that she will live with the paternal grandmother for the “foreseeable future”.
Order 4 restrained the mother from attending the paternal grandmother’s residence and “engaging” with the oldest child. Order 5 said:
In the event of non-compliance with Order 4 by the Mother, all time between the Mother and the children will be suspended.
The orders required the mother to “provide the Court with a minimum of [four] months of clear drug screens”. Order 6 and Order 7 provided that on the mother commencing a three months intensive rehabilitation course and subject to the availability of a supervisor, then the children would spend supervised time with her.
The primary judge made a recovery order in relation to the youngest child in the event that the mother “again removes, retains or takes possession of” the child (Order 12 of the June 2021 orders). The order was expressed to lie in the Registry.
Finally, the primary judge ordered:
14. Following:
(a)The Mother completing a residential rehabilitation treatment of not less than 16 weeks; and
(b)Provision of a hair follicle test results from the Mother, which is negative to all illicit substances, with the test to cover the period 3 months following the Mother's release from the residential rehabilitation treatment centre, the parties shall attend mediation on a mutually convenient date and use their best endeavours to agree upon future parenting arrangements for the children.
It is these orders that the mother seeks to challenge.
In the mother’s affidavit in support of the application to extend time she said that some confusion attended the primary judge’s orders in that she was unclear as to what time the children would spend with her pending her attending rehabilitation as set out in Order 7. Between 18 June and 22 July 2021 there was correspondence between the solicitor for the mother and those for the father as to what his Honour’s orders meant. The mother said that she understood the orders to mean that the prior arrangements for time with the children should continue until she commenced the ordered rehabilitation, the father asserting that until she did enter rehabilitation, all time with the children was suspended. The Independent Children's Lawyer was also asked for her view about the meaning of the orders.
This somewhat arid and ultimately pointless correspondence was conducted for the most part in the absence of the primary judge’s settled reasons which as I say were delivered to the parties on 26 July 2021.
The mother’s last contact with the younger children was on 24 June 2021. On 4 August 2021 the mother was accepted into a residential rehabilitation course.
In June 2021, on her own account, the oldest child brought an application in the local Magistrate’s Court seeking the removal of her name as a Protected Person in the Family Violence Order. That application was apparently contested by the father and there was a hearing on 23 July 2021 in which, the mother says, the father’s counsel cross examined the oldest child on her application. The matter did not complete and on its resumption on 6 August 2021, the father consented to the removal of the oldest child’s name which the mother said had the effect of removing the prohibition on the mother and W interacting under the terms of the Family Violence Order.
On 9 August 2021 the mother’s solicitor wrote to the father’s solicitor seeking resumption of supervised time with all of the children. The father responded contending that the 18 June 2021 orders remain in effect and those orders required the oldest child to live with the father or with the paternal grandmother and the mother’s only contact with the oldest child was as provided in those orders. Thus the father declined to allow resumption of the children’s time with the mother.
The parenting matter is next before the primary judge on 12 October 2021 on the father’s application in which he seeks a variation of the 18 June 2021 orders in line with the changes to the Family Violence Order. The mother’s response to that application seeks that the parenting proceedings be transferred to the Federal Circuit and Family Court of Australia Division 1. Earlier in these proceedings, the primary judge transferred the property aspect of the parties’ dispute to the Family Court of Australia (as it was then). In March 2021, both parties requested that the primary judge also transfer the parenting proceedings to the Family Court. His Honour refused that application.
The father’s principal application for parenting and property settlement orders is listed for directions before the primary judge on 21 October 2021.
It is tolerably clear that the father is not disposed to permit a resumption of supervised time between the mother and the children.
Extending time in which to appeal
Rule 13.03 of the Rules provide that a Notice of Appeal must be filed within 28 days after the order appealed from is made. The mother’s application for an extension of time in which to appeal was filed on 24 August 2021. She is thus 39 days outside the time provided for in the Rules and seeks an extension of time in which to bring the appeal.
The relevant principles to be applied in deciding whether it is appropriate to extend time in which to appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave. It is also necessary to consider the delay, its magnitude and the reason advanced for the delay.
Delay and the reason for it
As I have indicated, some of the delay in bringing the appeal was occasioned by the parties’ conflict over the interpretation of the primary judge’s orders. As I have said, the correspondence between the parties over what his Honour’s orders meant did little to advance the issue but took up time.
Senior counsel for the father while opposing the application, properly conceded that the mother’s evidence established a reason for the delay in filing the appeal but he noted that there was an unexplained delay between receipt of the settled reasons and the filing of the application to extend time.
As to that matter, it is reasonable for a party to have time to consider the reasons for which orders are made and take advice on whether an appeal lies from those orders.
In Singh v Minister for Immigration and Border Protection [2017] FCAFC 195, the Court said at [25]:
…The late publication of the reasons meant that the appellant had no written statement of reasons on the basis of which to seek legal advice, or to assess, whether or not to institute an appeal and, if so, on what grounds, until after the expiry of the period within which he had a right to appeal. As the Court has elsewhere observed, that is, with respect, an undesirable state of affairs. Written reasons should be published shortly after the giving of ex tempore reasons and well within the appeal period. …
(Emphasis in original)
Both in Mareet & Colbrooke [2018] FamCAFC 254 and in EVA17 v Minister for Immigration and Border Protection (2018) 262 FCR 304, the Court granted an extension of time in like circumstances (see too Dobey & Shey [2019] FamCAFC 68 and Pannett & Crain [2018] FamCAFC 99).
While I am conscious that the primary judge addressed the delay in providing reasons within the reasons themselves, the delay in providing the parties with the settled reasons is regrettable.
I do not regard the delay between receipt of the primary judge’s reasons and the filing of the application to extend time of such moment that, of itself would tell against the granting of the application.
I am satisfied that the mother has adequately explained the delay in commencing the proceedings and, of itself the delay is not of such a magnitude that it ought to cause her application to be refused.
Merit of the appeal
The exercise of discretion also involves an assessment of the prospects of a successful appeal because if the appeal is devoid of merit it would be futile to make the order sought. This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the court on the application.
It was not argued by the father, nor could it have been that the appeal is devoid of merit such that it would be futile to extend time in which to file the appeal. I am comfortable satisfied that the appeal is arguable.
Utility of the Appeal
Nonetheless, senior counsel for the father argued that the application ought to be dismissed because there was no utility in prosecuting the appeal.
Senior counsel for the father argued that notwithstanding the mother’s proposed appeal, the parenting proceedings had continued apace in the Federal Circuit Court and Family Court of Australia (Division 2) and there was another interim hearing on 12 October 2021. He further argued that even with an extension of time in which the appeal may be filed and even if the appeal is expedited, by the time the appeal was heard and determined the challenged orders may no longer be extant. Further, as it was clear that neither party sought that the Appellate Jurisdiction re-exercise the discretion in the event that the appeal succeeded, the matter must be remitted to be re-heard in the Federal Circuit Court and Family Court of Australia (Division 1) with the additional delay and increasing the likelihood that the challenged orders would no longer be operative.
However the father’s application which will be determined on 12 October 2021 does not seek any substantial variation to the June 2021 orders, rather it seeks an adjustment referrable to change in the Family Violence Order. The mother’s response does not seek a variation to those orders. Equally, the next date on which the matter is before the court is 21 October 2021 for directions. In those circumstances, it appears that, subject to the filing of another interim application, the present orders will remain on foot pending the final hearing of the parenting matters.
Senior counsel for the mother argued that the June 2021 orders are flawed and affected by appealable error and to fail to grant leave would work an injustice on the mother because she would remain unable to see the children because of the father’s interpretation of those orders and the appeal would preserve her position. It was also submitted that when the matter returns to the primary judge the mother could not reasonably expect his Honour to adopt a different approach to the parenting orders.
As I have said, the challenges to the June 2021 orders have merit. The subject matter of the appeal is important and concerns the mother’s time with the children in circumstances where the Independent Children's Lawyer informed the primary judge that the children want to see their mother and that they miss her.
It follows that I am not persuaded that there is no utility in allowing the appeal to be filed and I will order that the time be extended.
Expedition of the hearing of the appeal
The mother sought expedition of her appeal if an extension of time is granted.
While s 94(2D) of the Family Law Act 1975 (Cth) (“the Act”) provided for the expedition of appeals, no directly equivalent provision is made in the 2021 Rules, although Practice Direction 2.13 concerns making application for expedition of an appeal. Section 94(2D) of the repealed Act provided no criteria for making an order for expedition and recourse was often had to the rule concerning applications for expedition of hearings before a single judge (see Moxon & Moxon [2010] FamCAFC 67). The matters to be considered in those circumstances were:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought expeditiously;
·Whether there is any prejudice to the respondent to the application; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases to its possible detriment.
I see no reason why these principles should not be applied to applications for expedition of an appeal. Of those considerations, the issue here is whether there is a relevant circumstance which would cause this matter to be given priority over other matters listed for appeal and which may cause other similar matters to be displaced in the hearing list. I am unpersuaded that any such circumstance exists and thus do not propose to expedite the appeal.
Costs
While the father sought payment of his costs in the event that the application failed, no costs were otherwise sought and there will be no order as to costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 6 October 2021
0
5
0