Haykal & Krawiec & Anor
[2014] FamCAFC 110
FAMILY COURT OF AUSTRALIA
| HAYKAL & KRAWIEC AND ANOR | [2014] FamCAFC 110 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT OF APPEAL – where the applicant seeks reinstatement of an appeal against parenting orders and/or an extension of time to appeal those orders – where the Full Court considered the reasons for discontinuing the appeal and the proposed grounds of appeal and found that reinstatement of the appeal would not serve the interests of justice – application dismissed. FAMILY LAW – APPEAL – APPLICATIONS FOR STAY OF INDEMNITY COSTS ORDER PENDING APPLICATION FOR SPECIAL LEAVE TO APPEAL TO THE HIGH COURT – where an indemnity costs order had been made by a trial judge against the applicant – where an earlier Full Court dismissed an appeal by the applicant against the indemnity costs order – where the applicant applied to the High Court for special leave to appeal the dismissal of the appeal against the indemnity costs order – where the High Court had refused to grant special leave to appeal – where this Full Court found no utility in the stay applications following the decision of the High Court – application dismissed. |
| Evidence Act 1995 (Cth) s 135, s 136 |
| Bele & Vaughan (No 2) [2012] FamCAFC 125 Bemert & Swallow (2010) FLC 93-441 Gallo v Dawson (1990) 93 ALR 479 House v the King (1936) 55 CLR 499 Jeeves & Jeeves [2010] FamCAFC 243 Rand & Rand [2009] FamCAFC 88 Rice v Asplund (1979) FLC 90-725 |
| APPELLANT: | Mr Haykal |
| RESPONDENT: | Ms Krawiec |
| INTERVENER: | The Official Trustee in Bankruptcy |
| FILE NUMBER: | SYC | 731 | of | 2009 |
| APPEAL NUMBER: | EA | 85 | of | 2012 |
| DATE DELIVERED: | 25 June 2014 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, May and Strickland JJ |
| HEARING DATE: | 4 December 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 May 2012 31 August 2012 |
| LOWER COURT MNC: | [2012] FamCA 379 [2012] FamCA 748 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Conley |
| SOLICITOR FOR THE RESPONDENT: | Michael Conley Lawyers |
| INTERVENER: | Ms W |
Orders
The applications filed 19 September 2013 and 8 October 2013 be dismissed.
The amended application filed 16 October 2013 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Haykal & Krawiec has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 85 of 2012
File Number: SYC 731 of 2009
| Mr Haykal |
Appellant
And
| Ms Krawiec |
Respondent
And
| The Official Trustee in Bankruptcy |
Intervener
REASONS FOR JUDGMENT
Introduction
On 4 December 2013, the following applications filed by Mr Haykal (“the father”) were listed before this Full Court for hearing:
·an application filed on 19 September 2013 seeking to stay orders made at first instance by Murphy J on 31 August 2012;
·an application filed on 8 October 2013 seeking to stay an order of the Full Court made on 19 March 2013 (dismissing that part of an appeal which had not been withdrawn by a notice of discontinuance filed by the father on 5 March 2013); and
·an application filed on 16 October 2013 seeking to reinstate the parts of the appeal which had been withdrawn by the notice of discontinuance filed by the father on 5 March 2013.
Before referring further to the hearing on 4 December 2013, it is necessary to provide some background to the applications which were before us on that day.
History of this Case
On 18 May 2012, Murphy J dismissed an application by the father to, in effect, re-open parenting proceedings which had been determined by Walker FM
(as her Honour then was) on 11 February 2011, in relation to the two children of the father and of Ms Krawiec (“the mother”). (Notwithstanding that
the proceedings before Murphy J were concerned only with the issue of whether previously determined parenting proceedings should be reopened, we will in these reasons refer to the proceedings before Murphy J as “parenting proceedings” and to his Honour’s orders made in those proceedings on
18 May 2012 as “parenting orders”.)
On 27 June 2012 the father filed an application seeking an extension of time to appeal Murphy J’s parenting orders of 18 May 2012. That application was granted by Coleman J on 24 July 2012, but subject to the father lodging security for costs in relation to his proposed appeal and also to his complying with certain previous costs orders.
On 31 August 2012 Murphy J ordered that the father pay the mother’s costs on an indemnity basis for the parenting proceedings which were the subject of the orders made on 18 May 2012. It emerges from both his Honour’s orders and reasons for judgment of 31 August 2012 that those indemnity costs would be likely to be in the region of $69,000.
On 19 October 2012 the father filed (on the basis of leave subsequently granted by consent) an amended Notice of Appeal against both the parenting orders of 18 May 2012 and the indemnity costs orders of 31 August 2012.
On 5 March 2013 a lawyer acting on behalf of the father filed a notice of discontinuance in relation to the appeal against the parenting orders made on
18 May 2013. That lawyer filed a notice of ceasing to act for the father on
12 March 2013, and the father then filed a notice of address for service on his own behalf on 14 March 2013.
On 19 March 2013 the father’s appeal against the indemnity costs order made on 31 August 2012 was heard by the Full Court and dismissed on that day with ex-tempore reasons being given. Costs were ordered to be paid by the father and to be satisfied out of the security previously ordered and subsequently lodged by the father.
On 12 September 2013, that is almost five months out of time, the father filed an application in the High Court for special leave to appeal the orders of the Full Court of 19 March 2013 dismissing his appeal against the indemnity costs orders of 31 August 2012.
On 19 September 2013 the father filed an application at first instance seeking that the indemnity costs orders of 31 August 2012 be stayed pending the outcome of the special leave application to the High Court, and then on
8 October 2013, the father filed an application in an appeal seeking a stay of the Full Court orders of 19 March 2013 dismissing the appeal against the indemnity costs orders also pending the outcome of the special leave application in the High Court.
On 16 October 2013 the father filed an “amended” application in an appeal seeking an order re-instating his appeal against the parenting orders made on
18 May 2012, which he had discontinued on 5 March 2013. (It seems from enquiries which we made at the hearing on 4 December 2013 that the application was described as “amended” because the father had attempted to file it on 24 September 2013, but had been required by the Appeal Registrar to amend it in certain respects).
The applications filed by the father on 19 September, 8 October and 16 October 2013 were listed before this Full Court for hearing on 4 December 2013.
However, on 19 November 2013 a sequestration order was made by the Federal Circuit Court against the father with the Official Trustee in Bankruptcy being appointed the father’s trustee in bankruptcy.
On 3 December 2013 an official of the trustee’s office, Ms W, wrote to the mother’s solicitors advising that the trustee had “reviewed the pleadings and evidence” in the proceedings (being the father’s applications in the Family Court and the High Court) “and determined that the claims by the bankrupt [father] against [the mother] vest in the [trustee] pursuant to s 58(1) of the Bankruptcy Act 1966”, and that the trustee had elected to discontinue the Family Court proceedings.
Ms W enclosed with her letter a notice of address for service for the trustee and a notice of discontinuance in respect of the applications filed by the father on 19 September, 8 October and 16 October 2013.
The solicitor for the mother forwarded Ms W’s letter and enclosures to the Appeal Registrar prior to the hearing of the father’s applications on
4 December 2013, and those documents were provided to us just prior to that hearing.
The hearing on 4 December 2013
At the hearing before us on 4 December 2013, the father appeared on his own behalf, a solicitor appeared on behalf of the mother, and Ms W appeared for the trustee.
At an early stage in the hearing, the father informed us that he wished
“to appeal” the sequestration order. Ms W confirmed that the father had 21 days to apply for an annulment of the bankruptcy (being until
20 December 2013), although she suggested that the father may need the consent of the trustee to bring such an application. Ms W also confirmed that any proceedings by the father to the extent that they related to financial matters vested in the trustee and that the trustee had elected to discontinue those proceedings.
Given the indication from the father that he proposed to appeal or to apply for an annulment of the bankruptcy, and given also the trustee’s attitude to the continuation of any applications by the father concerning financial matters, we determined that we should not deal further with the father’s application concerning the indemnity costs orders, and that the notices of address for service and of discontinuance should not be filed by the trustee until it became clear whether the father would file an application seeking the annulment of, or an appeal against, his bankruptcy.
Accordingly, we directed that the trustee should advise the Appeal Registrar in writing by 16 December 2013 as to whether such an annulment application or appeal had been filed by the father.
We were, however, prepared on 4 December 2013 to hear argument in relation to the father’s application to re-instate his appeal against the parenting orders made by Murphy J on 18 May 2012. We will return to that matter later in these reasons after referring to events subsequent to the hearing on 4 December 2013 of which we have been advised by the Appeal Registrar.
Events concerning the father’s bankruptcy subsequent to the hearing on 4 December 2013
On 12 December 2013 the Appeal Registrar received a letter written on the same day from Ms W advising that the father had filed an appeal against his bankruptcy in the Federal Court and enclosing a copy of the
Notice of Appeal. The letter continued:
The Official Trustee does not object to the bankrupt seeking a review of the Sequestration Order, neither consents nor opposes the orders sought and will submit to the orders of the Federal Court subject to costs.
On 18 February 2014 the Appeal Registrar received from the father a copy of a letter dated 14 February 2014 which he had received from solicitors who were by then acting for the trustee. In that letter the father was advised that the trustee “intends taking no steps until your Federal Court appeal of the sequestration order has been determined”, and also that that appeal was listed for hearing on 28 and 29 April 2014.
This letter from the trustee’s solicitors concluded with the following paragraph:
For the avoidance of any further uncertainty on your part, whilst it is not necessary for the Official Trustee to provide its consent to you seeking to challenge the parenting orders made in the Family Court (as they do not concern your financial interests), it hereby confirms its consent.
On 20 May 2014 the solicitors acting for the trustee wrote to the Appeal Registrar advising that the hearing of the father’s appeal had taken place in the Federal Court before Jagot J on 28 April 2014 and that judgment had been reserved.
The dismissal of the father’s special leave application
We are also aware that on 12 March 2014 the High Court dismissed the father’s application for special leave to appeal the orders of the Full Court delivered on 19 March 2013 dismissing the father’s appeal against the indemnity costs order made by Murphy J on 31 August 2013. In their reasons for dismissing the application for special leave Bell and Gageler JJ said:
3. The application filed on 12 September 2013 is almost five months out of time. Compliance with the Rules respecting time should not be dispensed with. The prolix grounds of appeal and written case do not disclose any arguable basis of challenge to the decision of the Full Court.
The dismissal of the special leave application in relation to the indemnity costs orders must mean that there is no longer any utility in two of the father’s applications which were before us on 4 December 2013, being the applications for a stay of the indemnity costs order made by Murphy J on 31 August 2012 and for a stay of the Full Court order dismissing the appeal against the indemnity costs order, pending the determination by the High Court of the special leave application. Thus those stay applications must now be dismissed.
We appreciate that the possibility of the dismissal of the father’s applications to stay the original indemnity costs order and the order dismissing the appeal against that order as a consequence of the dismissal of his special leave application, was not canvassed by us with the father at the hearing on
4 December 2013.
However, given the High Court’s decision, there would be, as we said above, no utility now in the father’s stay applications, and nothing he could put to us could prevent the dismissal of those applications. Therefore in the interests of saving the parties further costs, we will now dismiss the stay applications filed by the father on 19 September 2013 and 8 October 2013.
The application to reinstate the appeal against the parenting orders
It will be recalled from the history of this case earlier set out, that on
5 March 2013 the lawyer then acting for the father filed a notice of discontinuance in relation to that part of the father’s appeal (being the subject of the amended Notice of Appeal filed on 19 October 2012) which was directed to the parenting orders made by Murphy J on 18 May 2012.
The orders sought in the application filed 16 October 2013
By his “amended” application filed on 16 October 2013, the father sought a range of orders, including as the first order, an order that would reinstate the appeal against the parenting orders made by Murphy J on 18 May 2012, and as the second order, an order that there be an extension of time to appeal those orders. The two orders just mentioned would clearly be in the alternative, although the principles governing a reinstatement of an appeal or an extension of time to appeal are broadly similar. (See Rand & Rand [2009] FamCAFC 88; Jeeves & Jeeves [2010] FamCAFC 243; Bemert & Swallow (2010) FLC
93-441; and Bele & Vaughan(No 2) [2012] FamCAFC 125.)
Before we refer to those principles and discuss their application in the present case, we will refer briefly to the other orders sought by the father in his application filed on 16 October 2013.
In order to understand most of those other orders sought, it needs to be remembered that by his orders made on 18 May 2012, Murphy J dismissed an application by the father to reopen parenting proceedings (relating to the two children of the father and the mother) which Walker FM had determined on
11 February 2011. Murphy J concluded his reasons for judgment, which related to his orders dismissing the father’s application to reopen the parenting proceedings, by saying:
50.In all of the circumstance of this case, I am entirely convinced that there is no material change in circumstances in the sense in which that expression is used in the cases applying the so-called “rule” in Rice v Asplund [(1979) FLC 90-725].
51.Moreover, I can see no reason in the children’s best interests, why the issues sought to be agitated by the father should be permitted to proceed. Indeed, I consider doing so, antithetical to the children’s best interests.
The third order sought by the father in his application filed 16 October 2013 is that “a declaration be made that there has been a significant change of circumstances” (presumably in relation to the children’s situation).
It seems likely that the father considers that such a declaration would be necessary, or at least of assistance, in his attempt to overturn Murphy J’s decision not to permit the proceedings before Walker FM to be reopened. However, we would explain to the father that this is not a declaration (or more accurately, a finding) that could be made in the context of an application to reinstate a previously discontinued appeal, which is the application now before us.
The fourth order sought can be read as relating to subpoenaed material and to the need for leave to issue further subpoenas, but is otherwise impossible to understand this proposed order and so it cannot be considered further.
The fifth order sought seeks that the orders made by Walker FM on
11 February 2011 be set aside. This is not an order that could be made in the context of an application to reinstate an appeal against orders made by another judge on another occasion.
The sixth order sought is for “the matter [to] be remitted to the Family Court of Australia for hearing of parenting orders.” Again this is not an order which would be made in the context of the present reinstatement application. Rather it is an order that might be made in the context of the appeal itself, if having been reinstated, it was then to be successful.
The seventh order sought seeks that each party pay their own costs. We will return to the issue of the costs of the present application after determining the reinstatement application which is the matter to which we now turn.
The order seeking reinstatement of the appeal or an extension of time to appeal
As earlier indicated the authorities establish that broadly similar principles govern an application to reinstate an appeal as govern an application to extend time to appeal, and it will be seen from those authorities that the relevant principles emanate from what was said by McHugh J in Gallo v Dawson (1990) 93 ALR 479. In Bele & Vaughan (No 2) Strickland J provided the following summary of what McHugh J said in Gallo v Dawson:
63.Thus, the fundamental issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. For example, whether there are adequate reasons which explain the delay, or the failure to comply with the relevant timeframe, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent that 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 a grant or a refusal of the application.
In his oral submissions to us in support of his application to reinstate his discontinued appeal against the parenting orders or to be granted an extension of time to appeal those orders, the father placed particular emphasis on the reasons why he had originally discontinued the appeal against those orders. His reasons were that he had been advised by those then acting for him that he should have senior counsel represent him at the appeal; however, he could not afford senior counsel, and therefore he had discontinued the appeal. He informed us that if the appeal was to be reinstated, he would not be able to afford legal representation, but he would now be prepared to represent himself as he had familiarised himself with the issues and necessary material.
The main emphasis in the submissions made on behalf of the mother in opposition to the reinstatement of the appeal was the length of the father’s delay in not seeking to reinstate the appeal until September or October 2013 after having discontinued it in March 2013, with reliance also being placed on the fact that when originally filing his appeal against the parenting orders the father had required and been granted, an extension of time to do so.
We would say at this point that the length of the father’s delay, being approximately the six months between his discontinuing the appeal and then filing his application to reinstate it, would not of itself be a reason for not permitting him to now proceed with his appeal.
Thus other matters such as the reasons for the delay, the issues to be raised on the proposed appeal, and the likely prospects of its success must carry greater weight in the determination of the father’s application.
The father’s reasons for discontinuing the appeal being his financial position in relation to legal representation and his lack of confidence in his own ability at that stage to argue his appeal are certainly understandable. Unfortunately, however, we do not consider that such reasons can provide support for the reinstatement of the appeal. We take this view having regard to the following observation made by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 481 and which can be seen as having some relevance to this case:
In the present case, the applicant sought to explain her delay in seeking an extension of time by claiming that her decision to appeal “depended on the careful assessment of the possibilities of my claim, which needed reference research involving a lot of work and time as it would to a non professional”. This claim was made without furnishing any details as to the time spent in research or the nature of the research upon which the applicant was engaged or when it was that she decided to appeal. Significantly, the applicant did not assert that she had failed to lodge her appeal because she was unaware of the 21-day time limit for lodging a notice of appeal. Indeed, the terms of her affidavit suggest that she made a conscious decision not to appeal until she had satisfied herself that she could succeed in an appeal. I doubt that I would have considered the applicant's explanation for the delay to be a sufficient reason for enlarging the time for lodging her appeal from the 21 days required by the Rules to the more than 16 months which would be required if this application were to succeed, even if I had thought that the applicant had real prospects of succeeding in her proposed appeal. A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved. In Hughes McInerney J pointed out (at 263) that one object of fixing time under court rules is “to achieve a time table for the conduct of litigation in order to achieve finality of judicial determinations”. When the time for appealing has expired, the litigation is at an end; the successful party is entitled to the benefit of the judgment in his or her favour. At that stage, the successful party has a “vested right to retain the judgment”. It would make a mockery of [the Rules] if, months after the time for appealing has expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortune, not a privilege. …
These observations by a judge of the High Court mean that we are unable to attach any weight to the father’s inability to afford appropriate legal representation or to represent himself when the appeal was originally listed for hearing, valid or understandable as those matters may be. As the observations of McHugh J indicate, there must be an end to litigation, and there would be no end to litigation if parties were able to postpone its finalisation until they had the necessary financial resources to engage legal representation, or they had been able to educate themselves to be in a position to conduct the litigation themselves.
The only insights which we have into the issues which would be raised by the father on his proposed appeal, and thus into its likely success or otherwise, are provided by the grounds of appeal, which are directed to the parenting orders, and which are contained in the father’s amended notice of appeal filed on
19 October 2012. Those grounds are as follows:
1.That His Honour erred in considering whether the “surveillance evidence” might be excluded at a trial.
2.That His Honour erred in finding that the “surveillance evidence” was of the same nature as that which was raised in the proceedings before the Federal Magistrate.
3.That His Honour erred in finding that there was no change in circumstances.
4.That His Honour erred in granting the application for “summary dismissal”.
Ground 4 is not a competent ground of appeal in that it simply asserts that his Honour was wrong in reaching the decision which he did; it does not specify in what way his Honour was wrong. This ground does however provide a useful context in which to explain, as his Honour did at [21] of his reasons for judgment delivered on 18 May 2012, that the mother’s application, which was before him, had been described by counsel for the father as an application for “summary dismissal”. His Honour can be read as accepting that description, but as also going on to explain that where such an application is made in relation to parenting proceedings, what is known as “the rule in
Rice v Asplund”is also relevant.
Because of the content of Ground 3 of the proposed appeal, it will be also useful to explain that the rule in Rice v Asplund as originally formulated by Evatt CJ, is as follows:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for, as Mr Broun submitted, change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman, FLC 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. ...
It will be recalled from the concluding paragraphs of Murphy J’s reasons
([50] and [51]) set out earlier in these reasons (at [33]), that his Honour found that there had been no material change in circumstances since the earlier parenting orders were made. Ground 3 of the proposed appeal asserts that his Honour “erred in finding that there had been no change in circumstances”.
Reference to Murphy J’s reasons for judgment shows that his Honour was able to satisfy himself first with the assistance of a table prepared on behalf of the mother which compared the evidence before Walker FM with the issues raised by the father before his Honour, and then by his own consideration of
“the specific alleged material changes identified by counsel for the father”, that there was no material change in the circumstances within the meaning of
Rice v Asplund.
Various High Court authorities such as House v the King (1936) 55 CLR 499, establish that there are significant limitations on the capacity of an appeal court to interfere with decisions such as that made by Murphy J in the parenting proceeding in the present case and which are known as discretionary decisions. We are of the view, having regard to the limitations on appellate interference with discretionary judgments, and also having regard to Murphy J’s reasons for his conclusion that there had not been a material change of circumstances, that Ground 3 of the proposed appeal would have virtually no chance of success.
Grounds 1 and 2 are concerned with the issue of “surveillance evidence”. That issue is the subject of the following paragraphs in Murphy J’s judgment, which despite their length, we think it necessary to set out:
36. At pages 56-57 of Dr [Q’s] report in the proceedings before Walker FM, the doctor said this:
The mother’s history of the father’s violence is not independent information and the father suggests that the allegation of the godfather is not independent either but other evidence such as police files and reports tend to suggest otherwise and I note that he was found guilty on this charge. The mother also reports stalking behaviour and if this is the case, then it is of concern. [Emphasis added]
37. It might be thought particularly troubling, then, that the father now seeks to rely upon the affidavits of two “private investigators” who, upon instructions from or on behalf of him sought, to use their words, to “surveil” the wife. That surveillance, which includes being “advised by the client to return [at 8.30 pm] to work address and check if the lights remain on inside the shop” is contained in two affidavits.
38. Questions arise as to whether that “evidence” might in any event be excluded, pursuant to sections 135 and 136 of the Evidence Act1995 (Cth) at a trial.
39. Leaving that matter aside, the evidence is, of course, quintessentially self-serving. The nature, timing and circumstances of the “surveillance” is as the “client” and/or the “investigator” chooses.
40. It is contended that this “evidence” (of surveillance over
“13 consecutive nights”) shows “…a prioritisation of [the mother’s] work interest above spending any time at all with her children during the week (and raises) clear and obvious issues about the mother’s attitude to the responsibilities of parenthood” (emphasis in original).41. In my view, it shows no such thing.
42. More importantly, for present purposes, it is “evidence” of precisely the same nature as that which (among many other things) was raised in the proceedings before the Federal Magistrate.
43. As but one example, paragraph 72 of the Federal Magistrate’s reasons are as follows:
The father was critical of the mother for her working hours and what he said was her non availability for the children. The mother acknowledged that she worked hard in her business. [Dr Q] reported that when the mother at interview said that she worked from 9.00am to 5.30pm, [S] corrected her and that she then agreed that she often stayed until 6.00 pm or 6.30pm. [Dr Q] said that [S] challenged this and said it was more like 7.00pm. The mother agreed that an issue raised in the therapy with [Dr E] was that [S] wanted her to be more available for him. She said that she had spoken to [Dr E] about how this could be done and that she tried to spend as much time as possible with [S]. Availability for the children does seem to be an issue for the mother. It was something which she reluctantly acknowledged. It is clear that she relies very much on the maternal grandmother to assist her.
44. That is particularly troubling in light of what the Federal Magistrate found at paragraph 75 of her reasons:
[Dr Q’s] opinion was that the father’s attitude had not altered. There was no doubt that this, unfortunately, remained the case. This was apparent in his evidence about the recent changeover involving the grandmother. It was evidence too, at hearing, that father showed no capacity to modify his position on matters in dispute or acknowledge that his actions could be detrimental to the children. If anything, the father became less restrained in his emotions and less able to focus on the issues when the hearing resumed on 3 November 2009, after a period of some seven weeks. In [Dr Q’s] opinion, the father is deeply affected by the belief that he has been cheated and betrayed by the mother in circumstances where he did not want the marriage to end and had great difficulty giving up his attachment to her. She thought that he was very agitated and preoccupied by these matters and that aspects of his behaviour may need to be understood in the light of his reaction to the family situation. The Court accepts that this is the case. However a consequence may be that the father loses the ability to be able to see in a rational way what [N’s] needs are. His behaviour is likely to have the consequence of further entrenching [S’s] views given [S’s] alignment with his mother and grandmother at this time.
45. Subsequent to those, with respect, insightful and thoughtful comments, I observe that the father’s reaction has been, in part, to instruct private investigators to “surveil” the mother of his children.
Ground 1, which asserts that his Honour “erred in considering whether the “surveillance evidence” might be excluded at trial”, would seem to be directed to what his Honour said in [38] with reference to ss 135 and 136 of the Evidence Act 1995 (Cth). Those sections provide for the rejection of, or limitation on the use of, evidence that might “be unfairly prejudicial to a party” or “misleading or confusing” or (in the case of rejection) “cause or result in undue waste of time”.
It is not difficult to see why his Honour made the observation which he did in [38] about the surveillance evidence. The possibility of its exclusion at trial was a relevant consideration in the context of the proceedings before his Honour. Therefore Ground 1 is likely to be found to be without merit.
Ground 2, which asserts that his Honour erred in finding that “the surveillance evidence “was of the same nature as that which was raised in the proceedings before the Federal Magistrate”, can be seen to be directed to [42] of his reasons. It is difficult for us to be certain as to precisely what was the intended scope of this ground of appeal.
However, we read his Honour as saying in [42] that the new “surveillance evidence” was directed to establishing that the mother gives priority to her work over the children, and that this was an issue which had already been considered, and disposed of, by the Federal Magistrate. Again we consider that it would be difficult to establish error on his Honour’s part in relation to this matter, and thus to establish that there is substance in Ground 2.
Our consideration of the proposed grounds of appeal has satisfied us that none of those grounds would be likely to be found to have merit, and thus that the appeal could not succeed.
Conclusion in relation to reinstatement/application to extend time to appeal application
Given our conclusions in relation to the lack of successful prospects for the appeal and also in relation to the father’s reasons for discontinuing the appeal originally, the interests of justice would not be served by permitting the reinstatement of the appeal against the parenting orders of 18 May 2012, or by the grant of an extension of time to appeal those orders.
Therefore, for the reasons given earlier in relation to each of the orders sought in the amended application filed on 16 October 2013, we will dismiss that application.
Costs
Should any party wish to make an application for costs in relation to the applications which are the subject of these reasons for judgment, they are at liberty to do so in accordance with the Rules.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May and Strickland JJ) delivered on 25 June 2014.
Associate:
Date: 25 June 2014
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