HEALEY & OSBOURNE - [2017] FamCAFC 185

FAMILY COURT OF AUSTRALIA

HEALEY & OSBOURNE

[2017] FamCAFC 185

FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time in which to file a Notice of Appeal – Where the proposed appeal is from interim parenting orders – Where there is not a satisfactory explanation for the delay in filing the Notice of Appeal – Where the proposed grounds of appeal have low prospects of success – Where the father proposes to adduce further evidence on the appeal if the appeal goes ahead – Where the evidence is unlikely to be received by the Full Court in light of the principles in CDJ v VAJ (1998) 197 CLR 172 – Application dismissed – Father to pay the mother’s costs of the application.

Family Law Act 1975 (Cth) s 60CC

Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Gallo v Dawson (1990) 93 ALR 479
Marvel & Marvel (No. 2) [2010] FamCAFC 101
Oswald & Karrington [2016] FamCAFC 152
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550
Sampson & Hartnett (No. 10) [2007] FamCA 1365
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT:

Mr Healey

RESPONDENT:

Ms Osbourne

FILE NUMBER:

NCC

258

2017

APPEAL NUMBER:

2017

DATE DELIVERED:

7 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

31 August 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 June 2017

LOWER COURT MNC:

[2017] FCCA 1277

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Harper

SOLICITOR FOR THE APPELLANT:

Byrnes Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Graham

SOLICITOR FOR THE RESPONDENT:

Tony Cox Lawyers

Orders

That the Application in an Appeal filed on 11 August 2017 is dismissed.
The Applicant is to pay the Respondent’s costs of the application as agreed or in default of agreement as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Healey & Osbourne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

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

Appeal Number: EA 92 of 2017
File Number: NCC 258 of 2017

Mr Healey

Appellant

And

Ms Osbourne

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 11 August 2017 Mr Healey (“the father) seeks an extension of time in which to appeal against interim parenting orders made by Judge Middleton on 29 June 2017. The proceedings before his Honour concerned the children of the father and Ms Osbourne (“the mother”) who were born in 2013 and 2016.
At the time of the hearing the children lived with the mother in Region B in Queensland. The father lived in Town F in New South Wales. The orders provided for the parents to have equal shared parental responsibility for the children who were to live with the mother. The mother and the children were permitted to continue to reside in Region B and thus the father’s application that they be required to return to Town F was refused. An order was made for the children to spend time with the father for a minimum of two hours each month for the first three months following the orders, as supervised by a contact centre, then for four hours a month for another three months unsupervised and thereafter for eight hours each month unsupervised.
In order to understand the application and the proposed grounds of appeal, which includes a ground that his Honour’s reasons are inadequate, it is necessary to spend some time identifying the issues in the case, which I shall do by reference to his Honour’s reasons.
After setting out the competing proposals of the parties and a brief statement of the law to be applied, his Honour identified the issues before him in the following way:
15.The main issue in dispute is whether the mother relocated to Queensland in approximately June 2016, and with the consent of the father or whether she relocated to Queensland at some time after October 2016 and without the consent of the father.
16.It is an agreed fact that the mother currently resides [in Region B] in Queensland. It is furthermore agreed that the father relocated to [Region S] in Queensland in February of 2016 and resided there until October 2016.
17.The parties agree that the father spent time with the children in both Queensland and New South Wales in 2016. The parties further agree that the father last saw the children on 13 July 2016.
18.It is agreed that the mother’s parents now reside [in Region B], having sold their property in [Town F] in approximately October 2016 and that the mother has a sibling residing in [City C in Queensland] who is contemplating moving to [Region B].
19.As I said the main area of dispute is in relation to whether the mother moved to Queensland in June 2016 or at some time after October 2016.
20.I of course have to deal with the factual matrix as it is before me. It is a fact that the mother has been residing in Queensland for either approximately 12 months or approximately 7 months.
His Honour emphasised then, and not for the last time, that “interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all of the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders”, quoting Marvel & Marvel (No. 2) [2010] FamCAFC 101 at [120].
The primary judge then turned to a step-by-step consideration of the evidence viewed through the prism of s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
In relation to the benefit of a meaningful relationship between both parties (s 60CC(2)(a)) his Honour said:
25.On any view of the evidence the fact is that the father has had virtually no relationship with [the child Y] and his relationship with [the child X] has been significantly strained due to the distance between he and the child post separation.
26.The father himself created some distance by moving to [Region S] in February 2016, shortly after separation.
His Honour found that the children have a “strong and secure attached relationship with their mother” and a “strengthening relationship” with other maternal family members in Queensland (s 60CC(3)(b)). As to the father, his Honour said:
36.As I previously said the father has been estranged through both his own actions and the actions of the mother from having a relationship with the children.
37.At the current time and based upon the evidence I am satisfied that the father would have a relationship with [X] that is both familiar and potentially strong and that he has no real relationship with [Y].
As to the opportunity to spend time with the children and to communicate with them (s 60CC(3)(c)) his Honour found that “through his own actions [the father] failed to spend time with the children and to communicate with the children” (at [41]).
His Honour then turned to the likely effect of any changes in the children’s circumstances (s 60CC(3)(d)). The primary judge spent some time discussing this issue because it raised the issue he had earlier identified as the significant issue in the proceedings – that is, at what point the mother and the children moved to Queensland.
In determining whether the mother had moved to Queensland in June 2016 (as the mother asserted) or November 2016 (as the father contended) his Honour had regard to the following (at [47]-[50]):
·A text message sent by the mother to the father in February of 2016 that suggested that the parties had agreed that they were “both intending to make a fresh start ‘up in Queensland’”;
·The father moved to Queensland in February 2016 for his studies, which supported the agreement;
·On 15 February the father agreed to sign contracts to sell the family home; and
·The fact that, regardless of what time it occurred, the mother has moved to Region B and that her parents also sold their property at Town F and moved to Region B.
His Honour then considered the husband’s contention that because the mother had provided an address in Town F on an apprehended violence order application filed in October 2016, she must have been continuing to live in Town F at that time (at [52]). The address given by her was in fact that of the mother’s parents. His Honour did not think that to be of great assistance because there are good reasons why a person seeking such an order may wish not to disclose their own address. He also considered that, in any event, the giving of that address did not establish that the mother was living in Town F at the time (at [53]).
Thus his Honour concluded:
54.In assessing the evidence at this interim stage I am satisfied that it is more probable than not that the mother and the children have been living in Queensland since June 2016.
The primary judge then noted that a move from the children to New South Wales would be disruptive as they had been living for 12 months in Queensland (at [56]).
His Honour then turned to the nature of the father’s application. It was his case that although the children should return to live in Town F, he did not seek that they live with him. Rather, he sought orders that they would live with the mother in Town F (at [58]).
His Honour correctly identified that this was an application for a coercive order against the mother as to where she was to live. His Honour referred to Oswald & Karrington [2016] FamCAFC 152 and Sampson & Hartnett (No. 10) [2007] FamCA 1365. No doubt his Honour had in mind the following passage from Oswald:
16.It may be accepted, as it was in this case, that the Court has power to make a coercive order. Importantly though, it is well established that the proper exercise of that power is “at the extreme end of the discretionary range” and there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of children.
17.Consequently, as emphasised by the Full Court in D and SV and by the Full Court in Sampson and Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
His Honour considered that the father had the means and ability to travel to Queensland and concluded that he was not persuaded that there were “rare or extreme factors” that warranted the making of a coercive order.
The primary judge then turned to the consideration of s 60CC(3)(m) and concluded:
83.Having regard to the fact that [Y] has resided in Queensland for most of his life, both children have lived with their mother, and the fact that the maternal grandparents moved to [Region B] it is likely that these children’s stability has been unaffected by the move to Queensland.
84.That is, they had a relationship with the maternal grandparents in [Town F] and that relationship has been unaltered, [Y] has been stable in Queensland more than half his life and [X] continues to live with her mother.
85.Furthermore the children have always resided with their mother and she has at no stage left them for long periods of time. That stability remains in Queensland.
86.The father cannot argue that he has provided a stable relationship for the children in circumstances where he chose to move to Queensland in February 2016. On any view that would have caused instability in his relationship with [X] at the very least.
I have not referred to his Honour’s consideration of the other section 60CC factors because they were either found by him not to be relevant in the circumstances or because there was competing evidence which precluded a final determination of that issue on an interim hearing.
After a reference to s 61DA(1), s 65DAA(3) and s 65D his Honour concluded:
94.It is important for the development of these children that a relationship continues with their father. For this reason and on an interim basis I propose making orders for the children to spend time with their father in Queensland. I trust the father will take up the opportunity to spend this time.

The application for an extension of time

Any Notice of Appeal should have been filed on or before 27 July 2017. It was not until 11 August 2017, some two weeks and one day later, that this application and a Draft Notice of Appeal was filed.
The principles which apply to an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J said:
… 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
The application is opposed by the mother.
No explanation is provided as to why a Notice of Appeal was not filed by 27 July 2017. The evidence in support of the application consists of an affidavit sworn by the father’s solicitor and one by his employed solicitor. They state that the father gave instructions to appeal on 28 July 2017 and confirmed these instructions a few days later. By then it was too late.
The father’s solicitor deposes that on 2 August 2017 he prepared a Notice of Appeal. After the appropriate filing fee was obtained from the father, his solicitors attempted, unsuccessfully of course, to file the Notice of Appeal, leading to the present application.
It is some explanation of the delay in bringing the present application. There is some force in the submission of counsel for the father that the bringing of this application was delayed by the misconceived attempt to file the Notice of Appeal but that error of his solicitors should not be sheeted home to the father.
Nonetheless, although this application has been brought reasonably promptly, the fact remains that the father only decided to appeal after his right to do so had expired.
The affidavit expressly sets out that the father wishes to appeal because he contends that the primary judge did not take into account all of the evidence that was presented to the Court as to the issue of whether the mother moved to Region B in June 2016 or November 2016.
The evidence that his Honour was said to have ignored was a statement made by the mother to a police officer in October 2016. The father also seeks to have the mother’s bank statements from January to December 2016 taken into account, notwithstanding that they were not before the primary judge. It is contended that “those records clearly demonstrate that the mother was residing in [Town F] between July and December 2016 and that her evidence to the contrary during the trial was deliberately false” (at [11]). I shall return to these assertions shortly.

The merits of the appeal

I turn now to the merits of the proposed appeal. It is convenient to set out the grounds of appeal in full.

The learned trial judge failed to give adequate reasons for his decision (Ground 1)

The obligation to give adequate reasons is well-known: Bennett and Bennett (1991) FLC 92-191 at 78,266. The reasons must enable the parties to understand the basis of the decision and the extent to which their arguments have been understood and accepted: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59].
As I have earlier indicated, his Honour spent some time discussing the facts in the context of s 60CC of the Act. Bearing in mind that this was an interim decision, I am not satisfied that any appeal under this ground would have any prospects of success.

Did the primary judge ignore part of the evidence and err in finding that the mother had moved to Queensland in June 2016? (Grounds 2 and 3)

Ground 2 contends that “[i]n making a finding that the mother had relocated to Queensland with the children in June 2016 (at paragraphs 54, 56 and 64), the learned trial judge had regard to only part of the evidence and submissions relied on by the father in respect of that issue”. Ground 3 asserts that “[t]he learned trial judge erred in finding that the mother had relocated to Queensland with the children in June 2016”.
The father relies upon bank statements of the mother that suggest she was present in Town F between August to December 2016. These statements were not before the primary judge, but the father has indicated that if the extension of time is granted he will seek to rely on them as further evidence in the appeal.
On 9 May 2017 the father’s solicitor sent the mother’s solicitor a Notice to Produce seeking copies of credit card statements from 1 May 2016. On the day of the hearing he was informed that the mother had not held a credit card during the relevant period.
On 10 July 2017 the father’s solicitors requested copies of the mother’s bank account statements. These were provided on 4 August 2017 and are the statements upon which the father now seeks to rely.
The bank statements show regular withdrawals in the City C area in Queensland from 21 June 2016 to 5 August 2016 and in Town F from that date to early December (save for 5 to 7 October when the withdrawals were again made in City C).

It is appropriate to say at this point that I do not accept the father’s submission that I should infer that there was an element of subterfuge involved when the mother delayed the provision of these documents until after the period for lodging an appeal had passed. In the absence of a looming court event, I do not consider that taking three weeks to provide the statements is acting unreasonably. In any event, the father lodged this application before he received them and not as a consequence of seeing them.
There is no reason to think that the bank statements were not reasonably available for use at the hearing. The reason that the father did not tender them at the hearing was because he had not sought their production. It cannot be assumed therefore that the bank statements would be readily received in an appeal: CDJ v VAJ (1998) 197 CLR 172 (“CDJ”) at [114], [117]-[118] and [148].
Further, it is also likely that the court would be reluctant to receive the bank statements on the appeal because the evidence is likely to be controversial. Although the entries in the bank statements themselves are uncontentious, the explanation the mother might give for being in Town F at the time is likely to become a subject of dispute (CDJ at [114]).
Whilst the bank statements tend to show that the mother was present in Town F between August and early December, they are also consistent with her moving to City C in June, as she said she did, but returning temporarily for some purpose.
Importantly, the bank statements do not establish where the children were living.
An appeals court is constrained when dealing with grounds of appeal that seek to challenge findings of fact by a trial judge. In Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 the Court said:
43.The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.
(Emphasis added)
I am not satisfied that this evidence is of such a nature that, if received into evidence, it would demonstrate that the primary judge’s finding that the mother moved to City C in June 2016 was in error. Even if the bank statements do not make a finding glaringly improbable they are certainly relevant, but so too would be any explanation from the mother. Taking into account the difficulty that the father may have in placing this evidence before the Court hearing the appeal, it cannot be said that any ground of appeal relying on this evidence has strong or even reasonable prospects of success.
The father also relied on the failure of the primary judge to refer to a statement recorded by a police officer on 23 October 2016 to the effect that she was thinking of moving to City C.
First, it is not necessary for a trial judge to refer to every piece of evidence: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447. Further, the fact that evidence has not been specifically referred to in the reasons does not mean that it has not been considered.
Importantly, the submissions of the father overlook the critical finding of his Honour, which was that the father was seeking a coercive order for the mother’s return to Town F and that such an order is made in rare or extreme cases. The father would not overcome that substantial hurdle merely by establishing that the mother had moved to Queensland in December 2016 as opposed to June.
The father submits that he could not properly have sought an order that the children would live with him in the event that the mother chose to return, because of the nature of his relationship with the children. That may be so, but the matters taken into account by the primary judge remain valid.
I am not satisfied that these two grounds have any reasonable prospects of success.

Were his Honour’s reasons premised on an erroneous finding of fact? (Ground 4)

The father asserts that “as a consequence of the error identified in ground 3 above, the remainder of His Honour’s reasons were premised on an erroneous finding of fact”.
As I am of the view that the prospects of success on grounds 2 and 3 are not high, it follows that the prospects of success on this ground are also not at all high as the erroneous fact asserted by the father is the finding that the mother moved to the Region B in June 2016.
Further, even if it was to be established that the trial judge should have found that the mother had moved to Queensland with the children in November 2016, it is far from clear to me why that would lead to orders that were different to those that were made by the trial judge. Given the young age of the children, the fact that they were settled with their mother and had a developing relationship with the paternal grandparents who also lived in the same area would indicate that even after seven months’ residence in Queensland a move to bring the children back to New South Wales would be disruptive to them it is therefore far from obvious that any appeals court or primary judge re-exercising the discretion of the primary judge would come to a different conclusion. In that sense it can be seen that the appeal therefore may well lack utility.

Conclusion

The mother has a vested right to retain the benefits of the judgment. However, the Court must avoid injustice and that right will yield if the father’s application for an extension of time has merit.
The father has not given any explanation as to why a Notice of Appeal was not filed within the time provided in the Family Law Rules 2004 (Cth). I have found that the prospects of success on the appeal itself are poor. Taking these two matters into account together with the fact that this is an appeal from an interim order. I am not persuaded that there should be an extension of time in which to appeal. The application will be dismissed.

Costs

Both parties were in agreement that I should deal with the issue of costs on the limited information available to me rather than have the parties take on the additional expense of preparing and filing financial statements or other materials.
The father’s application has been wholly unsuccessful.
In that circumstance, the appropriate order is that the father pay the mother’s costs of this Application in an Appeal, as agreed or in default of agreement as assessed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 7 September 2017.

Legal associate:

Date: 7 September 2017