HAYDEN & LUNN - [2011] FamCAFC 66

FAMILY COURT OF AUSTRALIA

HAYDEN & LUNN

[2011] FamCAFC 66

FAMILY LAW - APPLICATION IN AN APPEAL – application seeking an extension of time to file a Notice of Appeal – where there is an adequate explanation for the delay in filing a Notice of Appeal and an application for an extension of time – where there are no reasonable prospects of success on appeal – where the children require stability in their lives – where the credit of the parties was a significant issue before the Federal Magistrate – consideration of the consequences for the parties if the application is granted or refused – where the interests of justice require that the application be dismissed.

FAMILY LAW - COSTS – oral application for costs by the father – application dismissed.

Family Law Act 1975 (Cth) s 94AAA & s 117
Family Law Rules 2004 (Cth) r 22.02 & r 22.03

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Ms Hayden

RESPONDENT:

Mr Lunn

FILE NUMBER:

DGC

1541

2009

APPEAL NUMBER:

2011

DATE DELIVERED:

4 March 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

4 March 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 October 2010

LOWER COURT MNC:

[2010] FMCAfam 1126

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Gates

SOLICITOR FOR THE RESPONDENT:

Tyler Tipping & Woods

Orders

The Application in an Appeal filed on 24 December 2010 be dismissed.
The father’s oral application for costs be dismissed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 3 of 2011
File Number: DGC 1541 of 2009

Ms Hayden

Applicant

And

Mr Lunn

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is an application seeking an extension of time to file a Notice of Appeal. The application was filed by the mother on 24 December 2010. It sought to extend the time to appeal against orders made by Federal Magistrate Hughes on 18 October 2010. The orders were certainly made by Federal Magistrate Hughes on 18 October 2010, however her Honour’s reasons for judgment, which have been published, are dated 13 October 2010. It seems that what happened was that originally her Honour was intending to deliver her reasons for judgment and make orders on 13 October 2010, but that was altered and the matter was adjourned to 18 October 2010 for her Honour to deliver her judgment. Obviously the Federal Magistrate has overlooked amending the date on her reasons for judgment as published.
The mother, Ms Hayden, has appeared in person today on this application. Up until recently, she had been represented by a Ms Wells of Peter S Dunn & Associates. However, on 1 March 2011, a Notice of Ceasing to Act was filed. It seems that Ms Hayden, the mother, was not successful in obtaining Legal Aid for the purposes of this application and on that basis, her solicitor was not able to continue to act. Although that has left Ms Hayden in the situation of appearing herself today, fortunately, her documents had been already been prepared by her solicitor, that is her application, her affidavit in support, also filed on 24 December 2010, and her draft Notice of Appeal filed on 24 December 2010.
At the very start of the hearing today, I raised with Ms Hayden whether she wished to apply for an adjournment to obtain the assistance of a lawyer, and she indicated she did not want to do that and the matter proceeded.
As the hearing proceeded though, it became apparent that there were some things that Ms Hayden wanted to say to me from the bar table which were not in her affidavit, relating specifically to the issue of delay and the explanation for the delay. At that point, I suggested that she might need to think about adjourning the matter if it was relevant to produce evidence or a further affidavit in relation to these further details that Ms Hayden was telling me from the bar table. However, as it has happened, after those issues were explored, there is ultimately no challenge from the husband’s counsel in the sense of requiring that what was said be put on oath. Thus, ultimately, there did not need to be an adjournment to enable that further evidence or any further evidence on that topic to be put before me.
The hearing proceeded and I heard submissions initially from Ms Hayden and then submissions in response by Mr Gates, who appeared for the father. Then I heard submissions in reply by Ms Hayden. Towards the end of those submissions, Ms Hayden indicated that she wished to apply for an adjournment to obtain the services of a lawyer to complete the application. I adjourned the matter to enable Ms Hayden to consider that, and upon resumption Ms Hayden indicated that she no longer wished to apply for an adjournment and she wished the matter to proceed. I gave her a second opportunity to think about that, and she did, but she indicated quite plainly that she did not want to apply for an adjournment and she wished the matter to proceed, and that is what has happened. I have heard further submissions from her in reply to the submissions of Mr Gates.
The relevant statute law and rules that apply here are as follows:
6.1Section 94AAA(1) of the Family Law Act 1975 (Cth) (“the Act”) provides:
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; …
6.2 Section 94AAA(5) provides:
(5) An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court.
6.3Sections 94AAA(10), (11) and (12) provide:
(10)Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
…
(e) for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
6.4Chapter 22 of the Family Law Rules 2004 (Cth) deals with appeals.
6.5Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
6.6Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made.
The law in relation to applications for extension of time is well settled, and in these matters, I often cite the High Court decision of GallovDawson (1990) 93 ALR 479. In particular, I refer to what McHugh J said at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd. [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
That decision has been followed in a number of Full Court cases including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what those cases tell me, and in particular Gallo v Dawson, is that there are a number of relevant factors which need to be addressed, such as whether there are adequate reasons which explain the delay, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of the application. But the overarching principle is to ensure that injustice is not visited upon, primarily the applicant, but also the respondent.
Addressing the relevant factors arising in this case, there is first the question of delay and the explanation for that. It is, of course, apparent that a Notice of Appeal was not filed within the requisite 28 days. Working on the basis that the reasons for judgment were delivered and the order was made on 18 October 2010, then the 28 days would have expired on 15 November 2010. To repeat, it is apparent that no Notice of Appeal was filed in that time, and the application seeking the extension of time was not filed until 24 December 2010.
It is not only, of course, the delay in the sense of not filing a Notice of Appeal within 28 days, but it is also relevant to address the time between the expiry of that 28 day period and when in fact the application seeking extension of time is filed. In this case, that period of time was between 15 November 2010 and 24 December 2010.
It seems that what happened in this case in relation to the question of delay and the explanation for it is that the hearing took place before the Federal Magistrate over a number of days in May 2010, namely, 17, 18, 19 and 20 May 2010. On 8 October 2010, the mother’s solicitor filed a Notice of Ceasing to Act. The mother tells me that, prior to that date, she had been advised by her solicitor that that was going to happen. She could not be specific as to precisely when, but certainly it was by 8 October 2010. At that time, as I understand it, there was a prospect of the reasons for judgment being delivered shortly thereafter, and indeed, they were ultimately delivered on 18 October 2010, as I have identified. There was clearly a suggestion that they were going to be delivered on 13 October 2010, but for reasons which I am not aware of and which are not the subject of any evidence, it was delayed until 18 October 2010.
The next thing Ms Hayden says that she was aware of is that she received a text message from her previous solicitor on about 19 or 20 October 2010 providing her with a list of solicitors that she might like to contact and instruct in lieu of her. Ms Hayden tells me, and I accept, and it is logical, that that text message did not contain any advice to Ms Hayden that the judgment had in fact been delivered on 18 October 2010, because of course the solicitor sending that text was no longer on file and would not have received the judgment and would not have been aware of that.
Thus, the first time Ms Hayden says she became aware of the judgment was when she cleared her post office box, and one item of correspondence was a letter from the Federal Magistrates Court enclosing the reasons for judgment, and that occurred on 28 October 2010.
It is apparent that Ms Hayden, between 8 October 2010 and 28 October 2010, had not made any attempts to obtain the services of another lawyer. It also seems that the judgment, having been delivered on 18 October 2010, and sent out by letter from the court dated 19 October 2010, would have been received in the post office box of the mother on about 21 October 2010. It seems then that that correspondence would have simply remained in her post office box until she cleared it on 28 October 2010.
Just pausing there, Mr Gates has made some points about that and suggested that, for example, Ms Hayden should have in that period of time been contacting alternative lawyers, he says, because – and these are my words – the writing was on the wall as to what the decision would have been, given how the hearing had progressed, and Mr Gates referred me to a particular paragraph of the reasons for judgment of the Federal Magistrate. Also, Mr Gates has submitted that, given that Ms Hayden was aware that judgment was about to be delivered, she should have been checking her post office box more regularly than it seems that she was.
Dealing with the first point, I reject that submission. I consider that no criticism can be made of Ms Hayden in terms of not looking to instruct other solicitors immediately after her solicitor ceased to act, and she was entitled to await the reasons for judgment of the Federal Magistrate and the orders made to then determine what she did about it, depending upon the result. I do not consider it is reasonable to suggest that she should have known precisely what the Federal Magistrate was going to say in her reasons for judgment and precisely the orders that she was to make.
In terms of the submission about attending and clearing her post office box, I do not consider that to be of any great moment because, of course, Ms Hayden still saw for the first time the reasons for judgment on 28 October 2010. That was still within the 28 day period and she still had time to instruct lawyers and move towards filing a Notice of Appeal, if that was appropriate in the circumstances.
In any event, what Ms Hayden did, once she did see the reasons for judgment and the orders on 28 October 2010, is that she contacted her previous solicitor. She then set about obtaining the services of an alternative lawyer. I will not go through all of what she says in her affidavit about that, but I am prepared to accept what Ms Hayden has set out there as to her attempts to obtain legal assistance to file a Notice of Appeal, and specifically that she was unsuccessful in that regard through no fault of her own.
Just pausing there and reflecting on her affidavit, she says, ultimately, it was not until 17 November 2010 when her application for legal assistance was sent to Victorian Legal Aid. Confirmation of aid was then not received by her solicitor until 22 November 2010.
The next significant point is that it was not until 24 December 2010 that the application currently before me was filed. There is no explanation in her affidavit as to the delay between 22 November 2010 and 24 December 2010, but in the circumstances of there being other court proceedings occurring at that time in relation to the children and the recovery of the children by the father, the mother withholding the children from October to December, I do not consider that a delay of approximately a month in filing the application is of any great moment. In particular, I do not consider such a delay should disqualify or prevent Ms Hayden from being able to successfully pursue this application if that was the only issue before me.
Thus, I am satisfied that there is an adequate explanation of any delay by the applicant, firstly, in not filing a Notice of Appeal in time and, secondly, in bringing an application for an extension of time.
The next factor which is relevant in this case and which I now turn to is whether there is a substantial issue to be raised on appeal. In that regard, I have read the reasons for judgment of the Federal Magistrate and the draft Notice of Appeal, and obviously, as I said, I have read the application that is before me today and the supporting affidavit. There is no other material to which I have been referred, or indeed that I have read, but for my part, what I have is sufficient for me to properly consider this factor, namely, whether there is a substantial issue to be raised on appeal.
There are four grounds of appeal identified in the draft Notice of Appeal as follows:
1.     That the Learned Federal Magistrate failed to provide sufficient reasons for her determination that the Respondent Mother’s parenting capacity is sufficient for her to care for the children for four days and five nights per fortnight but not seven days and seven nights per fortnight
2.     That the Learned Federal Magistrate erred in her discretion in making findings of a lack of parenting capacity against the Respondent Mother without taking into proper account of the fact that most, if not all, of the incidents of incapacity took place at a time when the Respondent Mother was suffering from post natal depression
3.     That the Learned Federal Magistrate erred in her discretion to not give proper weight to the expert evidence that found that the Respondent Mother no longer suffered from depression when giving weight to the possibility that the Respondent Mother’s mental health might deteriorate
4.     That the Learned Federal Magistrate made an inconsistent determination in that she accepted the submission of Counsel for the Applicant Father that equal parenting is not in the children’s best interest but at the same time (noted at paragraph 279) apparently disregarded the admission of the father, that equal time parenting was appropriate (as noted at paragraph 229)
Both Mr Gates and the mother have addressed those grounds of appeal in making their respective submissions on this topic. As I said, the Federal Magistrate’s reasons for judgment were delivered on 18 October 2010, following upon a hearing that lasted for four days in May 2010. The judgment of her Honour extends over some 283 paragraphs and 57 pages. Her Honour, in my assessment, has carefully addressed all of the relevant issues that were raised during the hearing. She has specifically addressed the evidence before her, and in that regard I note that there were 12 witnesses who gave evidence, and her Honour has dealt in some detail with the evidence of each of those witnesses.
Her Honour also had the benefit of expert evidence. There was Dr K, who had undertaken a psychiatric assessment of the mother and whose report was before the court. There was the mother’s psychologist, Mr J, who gave evidence and who had also prepared a report which was before the court. There were then two family reports prepared for the purposes of the proceedings by Mr N. Those reports are dated 6 October 2009 and 17 May 2010.
The subject matter of these proceedings was a dispute concerning two children, namely, R and D. R is the natural child of the mother, but the father is not the natural father of R. D, though, is the natural child of the parties. The parties had separated in March 2009, and it is apparent from the reasons for judgment of the Federal Magistrate that the parties were in heated dispute over the children from that time. Proceedings were commenced in about June 2009, and there were a number of interlocutory skirmishes in the Federal Magistrates Court before the final hearing took place before the Federal Magistrate in May 2010.

Returning to the grounds of appeal relied upon by Ms Hayden. The first ground, and I will summarise it, is that the Federal Magistrate failed to provide sufficient reasons for her determination in relation to the mother’s parenting capacity. Her Honour found that capacity was sufficient for the mother to care for the children for four days and five nights, but not seven days and seven nights.
However, that is not how the Federal Magistrate approached this issue. In other words, the Federal Magistrate did not approach this matter by looking at how many days and nights the mother is able to care for these children. The mother’s case, of course, was that the children should live with her and spend time with the father. That was the father’s case as well, namely, the children live with him and spend time with the mother.
It is my assessment that the Federal Magistrate has provided sufficient reasons for her determination, and this is not a ground of appeal which has any reasonable prospects of success.
The second ground is that the Federal Magistrate erred in finding a lack of parenting capacity on the part of the mother without taking proper account of the fact that most of the incidents of incapacity took place at a time when the mother was suffering from postnatal depression. As Mr Gates has pointed out though, this ground of appeal signals a significant change from the case that the mother presented to the Federal Magistrate. In other words, the mother’s case before the Federal Magistrate was to deny that she was suffering from any mental health difficulties such that she was unable to care for the children. It seems that now she is complaining that the Federal Magistrate did not take account – and using the words in the grounds of appeal – of the fact that the relevant incidents took place at a time when the mother was suffering from postnatal depression. Thus the mother’s case seems to have changed to one of conceding that she did suffer from postnatal depression and that did impact upon, and maybe even cause, the incidents that concerned the Federal Magistrate, but she has now improved. Given that that was not the case run before the Federal Magistrate, I fail to see how the Federal Magistrate has erred in the exercise of her discretion in making findings as to the parenting capacity of the mother.
Ground 3 is that the learned Federal Magistrate erred in her discretion to not give proper weight to the expert evidence that found that the mother no longer suffered from depression when addressing the possibility that the mother’s mental health might deteriorate. Again, I do not consider that that is an accurate representation of how the Federal Magistrate approached this case, and particularly how the Federal Magistrate approached the expert evidence. I cannot see how her Honour has erred in the exercise of her discretion here.
Ground 4 alleges there is an inconsistency, namely that the Federal Magistrate made an inconsistent determination in that she accepted the submission of counsel for the father that equal parenting is not in the children’s best interests, whilst disregarding the admission of the father that equal time parenting was appropriate. It is correct that the father, in his evidence, indicated that in certain circumstances equal time parenting, to use the phrase in the ground of appeal, would be appropriate. And it is also correct that the father’s counsel submitted that equal parenting was not in the children’s best interests. However, this is not comparing apples with apples. It is comparing the evidence of the father during the course of the hearing with his counsel’s submissions at the end of the hearing, after all the evidence has been heard, and putting then the case of the father in light of the relevant sections of the Act. Thus, although there is a prima facie inconsistency, in my view there is no reasonable prospect of that ground of appeal succeeding.
Thus, in summary, there is no substantial issue to be raised on appeal, or perhaps putting it another way, I am not persuaded that there are reasonable prospects of success on appeal.
I observe that this is a matter involving what is in the best interests of two children who have been the subject of conflict between the parties, both prior to separation and subsequent to separation, and both outside and inside court. That leads me into a consideration of another relevant factor identified in the authorities, namely, the nature of the litigation and the history of the proceedings.
These children need stability in their lives. However, what I am faced with is an application for an extension of time which, if granted, will result in the children having to suffer the consequences of ongoing court proceedings, and not allowing them to settle.
The next factor that I want to highlight and just briefly mention is the conduct of the parties. I should have mentioned this, and I do now incorporate it in my earlier reasons as to my assessment of the grounds of appeal and the likelihood of success. A significant issue in this case was the credit of the parties, and the Federal Magistrate spent a good deal of time in her reasons for judgment addressing this issue. In the end result, her Honour made very specific findings of credit in relation to the wife, namely, her Honour found that the wife had lied during the proceedings. Indeed the mother herself, in her submissions today, has conceded that she perjured herself at trial. That finding by the Federal Magistrate clearly impacts generally upon her Honour’s findings in relation to the evidence, the parties and their respective witnesses and her Honour’s ultimate determination as to what orders are in the best interests of the children. That is another reason why I find that there are no reasonable prospects of success on appeal. Separately, that issue is relevant to the conduct of the parties as a factor that I need to consider in determining this application today.
The final matter I need to consider is the consequences to the parties of either granting or refusing the application. There are serious consequences for the mother if I refuse the application, given that there is no appeal from such a decision. There is, though, the ability to make an application for special leave to the High Court, but that in itself is a difficult application to make, and the question here would be whether it was warranted or, indeed, whether it would even be successful in a case like this. Thus, there are serious consequences for the mother if I refuse the application.
In terms of the father’s position, if I granted the application, that would mean the appeal would be able to proceed and that would clearly impact upon the father. He would then have to address that appeal, he would need to instruct his legal advisers to respond appropriately to it and there would be both time and money involved in that exercise. Significantly, it may very well impact negatively on the stability of the children. By that I mean the children would no longer have the comfort of knowing where they are living and with whom they are living and the time that they would be spending with the mother and the father. The outcome would be again up in the air and that would necessarily cause its own tensions in the children. Thus, equally, there are significant consequences for the father if I granted the application.
The consideration of those factors informs the determination of the fundamental issue, which is where the justice of the case lies. In that regard, it seems to me the most significant factor in favour of refusing the application is the circumstance that there are no reasonable prospects of success on an appeal. Albeit the mother has, in my view, satisfactorily explained any delay, and that is clearly an important issue in a case like this, that is not the sole issue. To repeat, the lack of prospects of success on an appeal sway me in finding that the interests of justice require that the application be dismissed.

Costs

I now have before me an application for costs by the respondent. The amount of costs sought is $1,235 being for counsel fees. That is the amount allowed by legal aid, and thus I understand from that that the father has legal aid.
The basis of the application is that the mother has been wholly unsuccessful in the application. It is opposed though and Ms Hayden relies primarily on her financial circumstances which she outlined to me.
Any application for costs, including this one, is governed by s 117 of the Act and the primary position under that section it that each party should bear their own costs. However, if the court is satisfied that there are circumstances that justify it in doing so, the court may make such order as to costs as the court considers just and in determining that, the court must have regard to the relevant considerations arising in s 117(2A).
Looking at those relevant considerations, the first is the financial circumstances of each of the parties to the proceedings. The second aspect is whether any party to the proceedings is in receipt of legal aid, and in this case the father is. Thirdly, the conduct of the parties in relation to the proceedings. Fourthly, whether the proceedings were necessitated by a party to the proceedings not complying with previous orders of the court. Fifthly, whether any party has been wholly unsuccessful. Sixthly, whether any offers have been made, and seventhly, such other matters as the court considers relevant.
The only relevant factors are the first, the second and the fifth.
To repeat though, the basis of the application for costs is that the mother has been wholly unsuccessful. That is correct, but, of course, I have identified in my reasons for judgment that there are a number of factors to which regard must be had in determining the application, namely and specifically, the question of delay and the explanation for it, the reasonable prospects of success on appeal, the conduct of the parties, the nature of the litigation and the consequences to the parties.
Principally I have dismissed the application because there are no reasonable prospects of success. I note, of course, that I was satisfied of the reasons for the delay and of course I note that there are serious consequences to the mother if I refuse her application. I need to take those individual aspects into account in determining this matter.
I am also concerned about the financial circumstances of the mother as outlined to me. She, in my view, does not have the financial capacity to meet an order for costs. Mr Gates has rightly submitted that impecuniosity is not the touchstone of whether an order for costs is made or not. However, given the circumstances of this application and my findings in relation to it, and the financial circumstances of the mother, I propose to dismiss the application for costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 4 March 2011.

Legal Associate:

Date: 23 March 2011