Hine and Selby (No 2)
[2009] FamCAFC 219
•1 December 2009
FAMILY COURT OF AUSTRALIA
| HINE & SELBY (NO 2) | [2009] FamCAFC 219 |
| FAMILY LAW - APPLICATION IN AN APPEAL – Application for extension of time to appeal – Where mother and independent children’s lawyer opposed extension – Where the father filed a Notice of Discontinuance and did not object to the hearing before the Federal Magistrate proceeding undefended – Where remedy available to the father – Where the appeal has negligible prospects of success – Where strict compliance with rules will not work an injustice – Application dismissed. FAMILY LAW - COSTS – Where father wholly unsuccessful in application – Where appropriate for father to pay mother’s costs – Where appropriate for father to pay independent children’s lawyer’s costs. |
| Family Law Act 1975 (Cth) – s 94AAA, s 94AAA(5), s 94AAA(10), s 94AAA(11), s 94AAA(12) Family Law Rules 2004 – r 22.02, r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 McMahon & McMahon (1976) FLC 90-038 Tormsen & Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Hine |
| RESPONDENT: | Ms Selby |
| INDEPENDENT CHILDREN’S LAWYER: | Renae Curran |
| FILE NUMBER: | SYC | 3902 | of | 2008 |
| APPEAL NUMBER: | EA | 110 | of | 2009 |
DATE DELIVERED: | 1 December 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 24 November 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1062 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Mr Hine appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Barry |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission NSW |
Orders made 2 december 2009
The father’s application filed on 21 September 2009 is dismissed.
The father pay the mother’s costs in the sum of $1,800.00 plus GST on or before 29 January 2010 or by such later date as may be agreed between the father and the Legal Aid Commission of NSW.
The father pay the Independent Children’s Lawyer’s costs in the sum of $1,800.00 plus GST on or before 29 January 2010 or by such later date as may be agreed between the father and the Legal Aid Commission of NSW.
IT IS NOTED that publication of this judgment under the pseudonym Hine & Selby (No 2)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 SYDNEY |
Appeal Number: EA 110 of 2009
File Number: SYC 3902 of 2008
| Mr Hine |
Applicant
And
| Ms Selby |
Respondent
And
| Renae Curran |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
On 21 August 2009 Federal Magistrate Howard made final parenting orders in respect of A. A was then aged 3 years.
The parenting proceedings were originally contested parenting proceedings between the child’s father, Mr Hine and her mother, Ms Selby. However, shortly before the hearing, the father filed a Notice of Discontinuance. The matter proceeded on an undefended basis. The mother sought the orders set out in her Amended Response. The father was present in Court during the hearing. An independent children’s lawyer (“the ICL”) had been appointed for the child. The ICL appeared before Howard FM.
The Federal Magistrate made orders that the child live with the mother, and that the mother have sole parental responsibility for her. The father does not seek to challenge those orders. The orders further provide that if the father wishes to spend time with the child he may do so, subject to conditions, including that the father spend time with the child, at his expense, for two hours per week for a period of 26 weeks at N Children’s Contact Centre, that he attend a “Parenting after Separation” course run by Unifam, and an anger management course, and on completion of those conditions, the father is at liberty to apply to the Court for orders in relation to the time he should thereafter spend with the child.
The orders also require the parties to sign all documents necessary to permit the mother to have the child’s surname changed to “Selby-Hine” on the child’s birth certificate, and require the father, if requested to do so by the mother, to sign a passport application for the child, and permit the mother to take the child overseas for limited periods each year.
The father did not apply within the time prescribed in the Family Law Rules 2004 to file a Notice of Appeal against the Federal Magistrate’s orders. On 21 September 2009 the father filed an application in which he sought an extension of time in which to file an appeal against the Federal Magistrate’s orders.
The father’s application was listed before me on 16 October 2009. The father was not legally represented. He made an oral application for an adjournment, and his application was granted. I reserved costs of the mother and the ICL on that occasion.
The father has still not obtained any legal representation. I note he sought the adjournment so that he could endeavour to obtain pro bono representation from the New South Wales Bar Association.
The mother, who is in receipt of a grant of legal aid, is represented today by her counsel, Mr Barry, On 16 October 2009 she filed an affidavit, and in paragraph 2 she states that she opposes the Court extending time to the father to file a Notice of Appeal.
The ICL, who is represented by Mr Berry of counsel, also opposes the extension of time sought by the father.
On 16 October 2009 I granted the adjournment and ordered that the father file and serve any further affidavit on which he sought to rely, together with an amended Notice of Appeal on or before 19 November 2009. The father has complied with that order.
Background
Counsel for the ICL helpfully provided me with an aide memoire. In that document he set out a short chronology of relevant events. There was no dispute about the accuracy of the matters raised therein save and except the reason Federal Magistrate Kemp disqualified himself from further hearing the matter. It is convenient that I reproduce relevant parts of the chronology:
a. [In May1962] The mother was born.
b. [In September 1967] The father was born.
c. 11.04 The parties commenced a relationship.
d. [In July 2006] [A], the child of the relationship, was born.
e. 3.7.08 The father commenced these proceedings.
f. 25.5.09 A Family Report was prepared.
g.1.6.09 The matter came on before FM Kemp for a final hearing, but was stood over to 2.6.09 as it could not be reached on that day.
h.2.6.09 The matter was not reached however FM Kemp disqualified himself on the ICL’s application...
i.18.6.09 Matter listed before FM Orchiston when the father filed in Court a Notice of Discontinuance.
The father’s application was dismissed and the matter was otherwise stood over to 21 August 2009 at 12.30pm for undefended hearing and certain other directions were given.
j.21.8.09 The matter came before FM Howard, the father personally appearing but did not take part in the proceedings, remaining at the back of the court.
The matter proceeded on an undefended basis at the conclusion of which his Honour delivered an ex tempore judgment and made the orders against which the father is now seeking leave to lodge an appeal.
k.29.10.09 FM Howard stayed, by consent, certain orders that were made by him on 21 August 2009.
Evidence
The father’s application is supported by two affidavits filed by him on 21 September 2009 and 19 November 2009.
The first affidavit is brief. It contains three paragraphs as follows:
1.To obtain adequate legal representation – currently seeking.
2.To obtain further information regarding access to [the N Children’s Contact Centre] – confirmation from [N Contact Service] that their services are not available – on Thursday, 17 September.
3.Waiting for some correspondence back from mother, [Ms Selby], regarding alternatives other than [N Contact Centre]. To date no return communication – so seeking to appeal for proper/adequate time to spend with daughter.
In his subsequent affidavit filed 19 November 2009 the father deposes among other matters:
·that he has not seen the child since January 2009;
·that the N Children’s Contact Centre is unable to arrange supervised contact for about six months as it is fully booked (this hearsay evidence is uncorroborated); and
·he submits that it is not in the child’s best interests that there is such a long delay before recommencing time spent with him, and that “all the good that was achieved by our present contact will be undone”.
The father annexes to his affidavit an Amended Draft Notice of Appeal. He also annexes an undated copy of a letter from the Family Relationship Centre, N which discloses that he attended a seminar run by that centre titled “Kids in Focus” on 22 November 2007. The seminar was of two and a half hours duration. He also annexes a copy letter addressed to “[Ms Selby]” on the letterhead of Relationships Australia, signed by the Co-ordinator of the N Children’s Contact Centre disclosing 15 attendances at the centre during 2008 and 8 non attendance dates. The letter does not refer to the parties’ names. It appears the letter may have been forwarded to the Family Consultant, Ms M, who prepared a Family Report which was before Federal Magistrate Howard. The father asserts he did not know who Ms M was when she contacted him on a “withheld” phone number and as a result of their conversation he expressed concern that she would be biased against him.
The father also annexes a copy of a letter date stamped 5 May 2009 addressed to the associate to Federal Magistrate Kemp and signed by the father. The letter does not disclose that it was also sent to the mother. In the letter the father raises objections about Ms M continuing her role as the report writer on the basis of conversations which he had with her. There is no evidence before me that the father made any application to the Federal Magistrate by way of an application in a case for the appointment of another Family Consultant or expert to prepare a report.
The father advances no reason for the delay in filing his application for an extension of time but he submits the period involved was short. This is conceded by the mother’s counsel.
Although no party initially led evidence of a stay of the Federal Magistrate’s orders, during the course of the hearing, it emerged that the father had sought a stay of some of the Federal Magistrate’s orders. Both counsel for the mother and counsel for the ICL submitted the stay order had been made by consent. No consent is noted on the order which is in the following terms:
THE COURT ORDERS THAT:
1.Orders 3, 5, 6 and 7 of the Orders made by Federal Magistrate Howard on 21 August 2009 be stayed until further order of the Federal Magistrates Court or the Family Court of Australia.
2.Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
The orders stayed include the orders which the father seeks to appeal.
The father then sought to rely on his affidavit filed on 21 September 2009 in the Federal Magistrates Court in support of his stay application. I marked this affidavit as Exhibit B in this application.
In his affidavit filed 21 September 2009 the father states he has contacted the N Children’s Contact Service (“the CCS”). He does not specify the date or means by which he contacted the CCS.
The mother relies on her affidavit filed 16 October 2009. In that affidavit she refers to an affidavit sworn by her on 28 July 2009. That appears to be an affidavit filed in the Federal Magistrates Court. I arranged access to the Federal Magistrates Court file and without objection, marked a copy of the affidavit as Exhibit A in this application.
In her affidavit filed 16 October 2009, the mother deposes that on 18 June 2009 the father filed a Notice of Discontinuance in the Federal Magistrates Court. She further deposes:
· on 21 August 2009 she attended the Federal Magistrates Court with her solicitor. On that occasion the ICL appeared and the father was present in Court;
· that the father confirmed to Federal Magistrate Howard that he had filed a Notice of Discontinuance and intended to sit in the Court as a member of the public;
· on 31 August 2009 the father contacted her and ask her “to re-negotiate the Final Orders”. She replied words to the effect “due to the involvement of the Independent Children’s Lawyer and the Family Report I think it is best that we follow the orders, if you would like to see [A] please follow these orders”;
· that the father had not contacted her in writing as required by the orders to facilitate time at the contact centre.
In paragraph 15 of her affidavit sworn 28 July 2008, the mother said she wanted the child to have a relationship with the father “however, I also want [A] to be safe”.
Relevant statute law and rules
Section 94AAA of the Family Law Act 1975 (Cth) provides for appeals to the Family Court from the Federal Magistrates Court. Section 94AAA(5) provides as follows:
(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.
Sections 94AAA(10), (11) and (12) are also relevant. They provide as follows:
(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
…
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.
Chapter 22 of the Family Law Rules 2004 deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from was made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Relevant legal principles – application for extension of time to appeal
The relevant principles to be applied by a trial Judge in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave.
The exercise of discretion also involves an assessment of prospects of a successful appeal.
The principles which relate to an application for an extension of time in which to institute an appeal have been referred to in a number of cases, including McMahon & McMahon (1976) FLC 90-038 at 75,144, Tormsen & Tormsen (1993) FLC 92-392 at 80,017 and Gallo v Dawson (supra) at 480 to 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.’
Judgment of the federal magistrate
The Federal Magistrate commenced his reasons noting the application before him was a parenting application in respect of the child who was living with the mother. He recorded the fact the father had filed a Notice of Discontinuance and that he had informed the Court he did not wish to take part in the proceedings.
The Federal Magistrate then referred to a Family Report prepared by Ms M as being in evidence before him. Having explained that a parenting case had to be decided “solely on the basis of the best interests of the child” he went on to note “[t]he evidence reveals a history of substantial conflict between the parents”. He also explained “[t]he father, it seems, has wanted to see the child. He has seen the child on occasions, not as much as he would like” (paragraph 3).
In paragraph 4 of his reasons the Federal Magistrate set out a substantial portion of the report prepared by Ms M. The matters referred to by Ms M included the following:
· that the child had an attachment to the mother which was insecure;
· the child recognised the father and it was likely she had some attachment to him. That attachment had been disrupted and was not currently a strong or significant attachment;
· the child was exhibiting behaviour which indicated she was “a rather insecure child”;
· the mother had a long history of depression and admitted to using alcohol to excess on occasions, as well as recreational drugs but seemed ready to acknowledge her difficulties;
· the Department of Community Services had involvement with the family – primarily “because of issues of family violence and because of [Ms Selby’s] depression”;
· the mother appeared to be supportive of the child having a meaningful relationship with the father;
· although the mother was reluctant to be in the father’s presence she did so at the family report interviews and acted appropriately;
· “[a]lthough [A] has not seen her father since January 2009 and [the mother] may be partially responsible for this there [was] no indication that she has attempted to undermine [A’s] relationship with her father”;
· the mother’s orders indicated she wanted the father’s relationship with the child repaired after the disruption caused by not seeing him for four months;
· that the mother’s suggestion that changeovers occur at McDonalds rather than a contact centre indicated the mother’s lack of awareness of difficulties which may arise;
· the father did not want to interact at all with the mother;
· the father expressed a totally negative opinion of the mother and was unable to identify any positive aspects of her as a person or mother;
· the father made extreme comments about the mother’s care of the child;
· the report writer’s concern about the father’s apparent inability to focus on what was happening for the child and as a result the child was likely to have difficulties “spending extended amounts of time with her father”;
· as the child’s attachment to the mother was the most significant attachment, and if there was evidence that it was insecure (as the report writer thought), strategies needed to be put in place to enable the attachment to become more secure;
· the child had enjoyed time she had spent with her father in the past;
· the report writer observed the child’s interaction with the father to be enjoyable;
· it would be in the child’s interests to have a significant and meaningful relationship with the father but this would only be in her best interests if he became more focussed on the child and her needs, rather than his views of “the limitations and problems that he believes that her mother has both as a person and a mother”;
· the father may have some difficulty in becoming more child focussed and accordingly would be likely to require professional assistance;
· it was difficult to predict whether the father would benefit from attending courses such as anger management, parenting issues and family violence;
· a psychiatric assessment in relation to both the mother and the father may assist the Court;
· it may be beneficial if the father were to undertake a parenting course and an anger management course to help him understand the child’s needs and help him deal with the extreme anger “that he obviously feels towards [the mother]”;
· that the mother should continue treatment for her depression;
· that because of the difficulties interim orders may be more appropriate with a review in six months or a year; and
· consideration should be given to the mother having sole parental responsibility because it “seems likely that problems will arise in the future”.
The report writer’s recommendations were then set out by the Federal Magistrate. It is useful that I reproduce these:
“51.It is recommended that consideration be given to [the mother] having sole parental responsibility for [A] if the Court finds that it would be impossible for the parents to make joint decisions about [A’s] welfare.
52.It is recommended that consideration be given to the parents and [A] being assessed by a child and Family psychiatrist.
53.It is recommended that [A] live with her mother.
54.It is recommended that the parents be referred to a Parenting Orders Program to assist them to focus on [A’s] needs and to develop a co-parenting relationship.
55.It is recommended that if the parents do not attend such a program that [A] continue to spend time with her father on a supervised basis at a Contact Centre.
56.It is recommended that if the parents attend a Parenting orders Program, after the parents have been involved with such a program and [Mr Hine] has spent time with [A] over a six months period of time on a weekly basis, that consideration be given to [A] spending unsupervised time with her father.” (paragraph 5)
The Federal Magistrate then, at paragraph 6, said:
Whilst the report writer recommends a transition to unsupervised time, because the matter has proceeded as an undefended hearing on the basis of the non-appearance by the father, the orders proposed by the mother and supported by the Independent Children’s Lawyer are appropriate.
In paragraph 7 of his reasons, the Federal Magistrate referred to the report writer describing the attachment between the mother and the child as “the significant attachment”. He also referred to the report writer’s description of the extreme hostility “emanating from the father towards the mother”. Having referred to the report writer’s opinion that it was possible if the father spent regular substantial and unsupervised time with the child he may undermine the child’s relationship with the mother, at paragraph 8 of his reasons, the Federal Magistrate concluded:
The Court is left in the position where there is little alternative but to adopt the recommendations of the report writer and the orders proposed by the mother and supported by the Independent Children’s Lawyer are appropriate. This includes the order for sole parental responsibility having regard to the evidence in particular of the independent expert.
His Honour then referred to a Minute of Order and said:
These orders provide for time with the father on a supervised basis and various other orders. Those orders will be final, it appears to me, on the basis of the evidence available before the Court, in particular the independent evidence of the expert that these orders are in the best interests of the child. I do not find it necessary in this case to consider each individual component of section 60CC of the Act. (paragraph 10)
The father’s amended draft notice of appeal
The father, who as I have already noted is self-represented, seeks to rely on three grounds of appeal with numerous sub-grounds.
The first ground asserts that the Federal Magistrate was in error in making an order for supervised contact. The gravamen of this ground appears to be that the period of 26 weeks supervised contact is not in the child’s best interests and that supervision is not available in a reasonable period of time at the N Children’s Contact Centre.
Ground 2 asserts there was insufficient evidence before the Federal Magistrate to make orders requiring the father to attend the Unifam “Parenting after Separation” course and an anger management course. I note that the father’s supervised time with the child is conditional upon the father attending such courses.
The final ground of appeal relied on by the father is that the report writer’s evidence was not contested.
Discussion
Before commencing my discussion of the father’s application for an extension of time in which to appeal the Federal Magistrate’s orders, it is appropriate that I note the effect of the stay sought by the father was that Order 3 be stayed in its entirety. This has had the effect that, pending the appeal, or other order of the Federal Magistrates Court, there is no provision for the father to spend any time at all with the child. This seems completely contrary to what the father is seeking to achieve.
I raised with the father and the legal representatives for the parties whether the appropriate course was for this matter to be relisted in the Federal Magistrates Court for variation of Order 3 if the facts asserted by the father as to non-availability of supervised contact at the N Children’s Contact Centre are correct. Mr Berry, counsel for the ICL, most appropriately conceded before me that in the event that an extension of time was granted to appeal, and an appeal heard and determined in the father’s favour, that the matter would have to be remitted for rehearing in the Federal Magistrates Court, a procedure which would involve significant delay in establishing the father’s relationship with the child and involve all parties in further legal costs. Mr Berry endeavoured to facilitate a settlement of issues in dispute between the parties. Regrettably that could not be achieved.
In determining whether or not a refusal of leave will work an injustice on the father I take into account the following matters.
(a) History of the proceedings
I have set out the chronology prepared by counsel for the ICL. There is no dispute that the father deliberately chose to file a Notice of Discontinuance and did not object to the matter proceeding undefended before the Federal Magistrate. The father advances no reason to explain this course of action.
(b) The conduct of the parties
As I have already noted, the father chose to file a Notice of Discontinuance and did not avail himself of the opportunity of cross-examining either the mother or the report writer. In these circumstances, it is somewhat ingenuous for him to now assert that the report writer’s evidence was untested. The father makes an assertion, unsupported by any corroborative evidence, that the N Children’s Contact Centre is unable to provide supervised contact immediately and a delay of 3-6 months to obtain time at the centre is likely. This assertion is disputed by the mother. He also asserts, again without corroboration, that he has “used up” the available allocation of supervised time from his previous time at the centre.
The mother asserts that the father has not complied with the provisions of the orders requiring him to advise her in writing of his intention to institute the regime of contact prescribed in the orders. The father does not dispute this assertion. However, I do not place significant on this factor of itself as there is a stay of the orders.
(c) The nature of the litigation
These proceedings concern a very small child. The Court must regard her best interests as its paramount consideration. The clear evidence of the report writer is that the child would benefit from a meaningful relationship with the father and for that to successfully occur, the father’s extremely negative attitude of the mother should not be conveyed to the child. I have, in these circumstances, carefully considered whether a refusal of the father’s application would be adverse to the child’s welfare. For reasons I will later explain, I conclude it would not.
(d) Consequence for the parties of the grant or refusal of the application for extension of time
The father does not seek in his proposed Notice of Appeal to challenge the order that the child live with the mother and that she have sole responsibility for her. The father has not seen the child for almost a year. I am satisfied that if the matters asserted by the father in relation to the N Children’s Contact Centre are correct then those facts would constitute a substantial or significant change from the situation when the orders were made by the Federal Magistrate and the father should not be met by an application of the principles enunciated in Rice & Asplund (1979) FLC 90-725 if he seeks a variation of the orders. Thus, there is no reason why the father could not bring an application before the Federal Magistrates Court for variation of Orders 3(a) and (b) of the Federal Magistrate’s orders.
On behalf of the mother it was submitted that the granting of an extension would be prejudicial to the mother who has the primary care of the child by reason of the stress of ongoing litigation. I take into account that the mother has a history of depression. It is likely that ongoing litigation would be stressful to her and this would impact on the child and be contrary to her best interests. I also take into account the cost to all parties of an appeal, and the use of the Court’s resources when a practical remedy is available to the father.
(e) The prospects of success of the appeal
As I have noted earlier in these reasons, I granted the father’s oral application for an adjournment to obtain legal advice and to file an amended draft Notice of Appeal as the original draft Notice of Appeal filed by the father disclosed no proper appeal grounds. Although the father is not legally represented he has now filed an amended draft Notice of Appeal.
Insofar as the father’s first challenge to the Federal Magistrate’s orders is concerned, that challenge (paragraphs (i) to (vi)) asserts error by the Federal Magistrate in making the order for time with the child to be supervised at the N Children’s Contact Centre. It implies that the Federal Magistrate gave insufficient weight to the prior history of the father’s time spent with the child at the N Children’s Contact Centre and/or that the Federal Magistrate failed to take into account likely delays in the availability of supervised contact. It is difficult for me to assess in any realistic way the prospects of success of this ground as I do not have the benefit of the affidavits which were before the Federal Magistrate at the hearing, nor is there any evidence before me in this application which indicates the Federal Magistrate did not have evidence before him of the availability of supervised contact at the N Children’s Contact Centre. I note that the orders made were ones supported by the ICL as being in the child’s best interests.
In January 2007 a document entitled “A Guideline for Family Law Courts and Children’s Contact Services” was published. Adherence to the Guideline is not mandatory but it is a useful tool to be considered when making an order for a child to spend time in a supervised contact facility. The Guideline is available on both the Family Court and Federal Magistrates Court websites in the “Publications” section. The orders made comply broadly with the guidelines.
The father also challenges the order made by the Federal Magistrate for him to attend a “Parenting after Separation” program and an anger management course. It appears to me that this ground has little prospects of success. I accept that the report writer’s recommendation was that both parents attend a parenting orders program and that the Federal Magistrate’s orders only require the father to attend such a program. I also accept that the recommendations of the report writer do not include a recommendation that the father attend an anger management course although she did mention such a course may be beneficial. I am satisfied this proposed ground discloses little merit as there is also reference in the report to the involvement of the Department of Community Services because of violence.
The father addresses no proposed ground in opposition to Order 6 which require him to sign documents to facilitate the change of the child’s name on the birth certificate, nor has he addressed any proposed ground to Order 7 which permits the mother to obtain a passport and to remove the child from the Commonwealth of Australia for a maximum of two occasions per year.
Overall, I am satisfied on the material before me that the appeal has negligible prospects of success.
(f) Can hardship or injustice to the respondent be compensated by an order for costs
Before me, counsel for the mother and counsel for the ICL sought an order for costs. The father put no evidence before me of his financial position but he made submissions to the effect that he was self-employed, had no capital and was not in a position to meet an order for costs. While I take into account that the mother is in receipt of a grant of legal aid, I conclude there is little prospect that in the event the appeal is dismissed, that the father will be in a position to pay the costs of the mother’s legal representation and that of the ICL.
(g) Delay by the father and explanation for the delay
The father offers no explanation for his delay. I do not, however, put any weight on this factor as it was readily conceded by counsel for the mother and counsel for the ICL the delay was of a very short duration.
Conclusions
In his written submissions, the ICL said in relation to the draft Notice of Appeal:
11…
e.The grounds appear to be more directed to, either contravention or an inability to put the orders into effect. It is suggested that is not a matter for an appellate court to deal with but for the Federal Magistrates Court on a contravention application of [sic] an application to vary the orders. (page 2)
That submission has considerable weight. Overall while the delay in bringing the application for an extension of time is minimal, I have, after carefully weighing all of the evidence and submissions, come to the view that strict compliance with the rules will not work an injustice on the father, and leave should be refused. The father, who deliberately chose to discontinue the proceedings, has a remedy at first instance if the facts asserted by him about the availability of the N Children’s Contact Centre are accurate.
Costs
Before me the counsel for the mother and counsel for the ICL each sought that the father pay their reserved costs of the adjournment on 16 October 2009 and the costs of the hearing. Each sought costs in the sum of $1,800.00 plus GST, being costs at the Legal Aid scale. While I have noted the paucity of evidence about the father’s financial position and his resistance to any order that he pay costs. I am satisfied there are circumstances why there should be a departure from s 117(1). The father has been wholly unsuccessful in his application in which he sought an indulgence from the Court.
I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 1 December 2009
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