HOOPER & FLANNERY - [2009] FamCAFC 186

FAMILY COURT OF AUSTRALIA

HOOPER & FLANNERY

[2009] FamCAFC 186

FAMILY LAW – APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – PRACTICE AND PROCEDURE – Application for extension of time – Reasons were delivered ex tempore – There was a delay in receiving the written reasons for judgment – Prospects of success of the proposed appeal were slim – Appeal against the costs order may have better prospects but in light of the discretion in making costs orders and expenses in mounting an appeal the justice of the case does not require an extension of time – Application dismissed – Applicant to pay the costs of the respondent

APPLICANT:

Mr HOOPER

RESPONDENT:

Ms FLANNERY

APPEAL NUMBER:

2009

FILE NUMBER:

BRC

5850

2007

DATE DELIVERED:

29 September 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

29 September 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Cooper

SOLICITORS FOR THE APPLICANT:

Barry & Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Galloway

SOLICITOR FOR THE RESPONDENT:

Holloway Jenkins

Orders

That the application for extension of time within which to file a notice of appeal filed 9 September 2009 be dismissed.
That the applicant father pay the respondent mother’s costs of and incidental to the application filed 9 September 2009 as agreed and in default of agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Hooper & Flannery 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 BRISBANE

APPEAL NUMBER: NA69 of 2009
FILE NUMBER: BRC 5850 of 2007

Mr HOOPER

Applicant

And

Ms FLANNERY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 4 August 2009, Howard FM dismissed a contempt application and a contravention application by Mr Hooper, described in the Federal Magistrate's reasons as the father, against Ms Flannery, described as the mother; both applications arising out of the same set of circumstances. His Honour suspended the operation of a restraint on the parties changing the school of their children until further order, and then made orders for the preparation of a family report, and finally, at least in terms of the substantive orders, that the father pay the mother the sum of $8000 by way of costs in respect of the father's applications for contempt and contravention, within 60 days.
The application with which I am concerned is that of the father requesting an extension of time within which to appeal all of the orders made that day, although I think in particular – I say that because of what is in the proposed notice of appeal, but in particular the dismissal of the applications for contempt and contravention, and in the costs order. An affidavit by, I think, from memory, Ms P, deposes to some circumstances relating to the failure to file a notice of appeal within time. It indeed suffers from the deficiencies properly highlighted by Mr Galloway of counsel, who appears for the mother, and it is in some respects countered by an affidavit from Mr Holloway, solicitor for the mother.
Insofar as Ms P's affidavit implies that preparation and lodgement of the appeal was hampered by an absence of reasons in writing, reasons being given ex tempore, Mr Holloway speaks of his record taken contemporaneously with the delivery of the ex tempore judgment and the utility of that for the purposes, for example, of the preparation of a notice of appeal. Usefully, in one sense for the father, Mr Holloway also deposes to having been given notice of the intention at least to consider an appeal by the father, on 14 August 2009. Notwithstanding what I have said of this aspect of the case, if I thought there were sufficient prospects of an appeal I would not be deterred from granting an extension of time by any delay.
Notwithstanding the deficiencies of express statement in relation to the delay, I would accept that somehow or another, whether that be oversight on the part of the solicitor, waiting on a transcript, inadequate notes taken at the ex tempore judgment or some other reason or a combination of reasons, that what should have happened did not. The delay is small and I would not think a prejudice arose against the mother simply from the delay. Therefore the focus of the inquiry, in my view, turns to the prospects of proposed grounds of appeal.
It is, I think, a significant deficiency in the application on behalf of the father that, as Mr Galloway points out, there are in fact no proposed grounds of appeal. Grounds in a notice of appeal handed to the court this day are not to be those relied upon, and, indeed, they were rather general in their crafting, apparently done without the benefit of the written reasons which, however, were available some three weeks ago.
However, there are really several complaints made under the heading Prospects of Success in a written outline of argument, handed up by Mr Cooper today. Two of them, I think, are relatively insignificant. There is a complaint against the suspension, to which I referred, of the restraint in earlier orders of either party changing unilaterally the schooling of the children. It is said that the suspension was either otiose or a mistake. The act of removal had already taken place and there was nothing in the orders to prevent the father from re‑enrolling the children at H State School.
It is apparent, however, that the Federal Magistrate had before him, as well as the contravention application, which of itself may have entitled him to make adjustment to preceding orders, an order for variation, in any event, of the earlier parenting orders. In relation to that, he obviously felt the need for a family report and a deferral of the final consideration of the parenting orders. In the meantime he has suspended the operation of a restraint. If, in fact, that was utterly unnecessary, it is still not a matter likely to aggrieve the father.
If it was made for the purpose of maintaining a particular situation until final consideration could be given to the matters in issue, then little might have been needed by way of reasons to explain it, and some reasons are at least implied, although in my view also partially expressed, in the concluding paragraphs of the federal magistrate's reasons. I think the prospect of success of an appeal against the order suspending the previous injunction are very slim.
Connected, at least via the reasoning that is applicable to the complaint that I have just described, is a complaint that the federal magistrate may have pre-judged the issue of whether a change should be made in relation to the orders relating to the children's schooling, but I think this merely a slant on the earlier challenge to the order for suspension, and one which is unlikely to find favour with an appellate court.
The more substantial matters are outlined in paragraph 6.4 and following paragraphs of the outline of argument on behalf of the father; but I repeat that in my view the presentation of the father's case for an extension of time suffers from the fact that whilst arguments might be discerned, outlined and even submissions made in respect of them, there is no crystallisation by way of a ground of appeal of the error which is asserted.
Mr Cooper has argued, both in writing and orally, that there is an inconsistency between what the federal magistrate said at paragraph 6 of his reasons in remarking upon whether a prima facie case had been established by the father or not, and what he later said in considering the evidence of the mother in particular and the question of her explanation or excuse for acting as she did. It is suggested that in finding that the mother had not made flagrant challenge to the order of the court that the federal magistrate conflated and confused that question and, in fact, imported a need for the father to have proved that the mother acted with contumacy.
Again, I do not regard that argument, couched as it is, as having other than slim prospects of success when opposed to an argument that the federal magistrate was merely considering the issue of whether or not the evidence taken overall established a flagrant challenge to the authority of the court. Again, the father’s argument is one which I think unlikely to find favour with an appeal court.
As to the order for costs, there was indeed no discussion in the reasons for the order made, that the father pay $8000 by way of costs. Costs, as is well known, is a discretionary decision. It is difficult for an appeal to succeed against that exercise of discretion as a general proposition and there is ample authority that reasons need only be brief and indeed tailored to the circumstances of the case. I would be surprised if an appellate court did not accept that the dismissal of the father's applications was a primary reason for the order for costs against him, necessarily implied in the mere fact of its making.
Whether or not there were other issues raised before the federal magistrate, which on their face bore consideration, militating against the significance of the dismissal of the father's applications, is a matter upon which I cannot comment. There is nothing before me to show what matters were raised or what issues were to be taken into account. However, the complete absence of express reasons is a matter which perhaps was of the most significant concern to me in deciding what to do in respect of the father's application, but at the highest I would have allowed an extension of time to appeal the costs order, not the other orders.
In addressing that, the prospect that an appeal might succeed against an $8000 costs order is one which needs to be measured against the likely cost and other consequences for both parties, but also, in particular, the mother, in meeting an appeal in which the amount in issue was $8000. The father has lost the right to appeal; he seeks an indulgence. I am not persuaded that the justice of the case requires an indulgence to allow a challenge, on at best an absence of express reasons, in relation to an order for costs.
I therefore conclude that the application of the father for an extension of time ought to be dismissed and order that the application filed 9 September 2009 be dismissed.

RECORDED : NOT TRANSCRIBED

On an application for an extension of time, which I have already described as one seeking an indulgence from the court, an unsuccessful applicant might have a strong expectation that he or she will be called upon to meet the costs of the other party, and indeed, as Mr Galloway points out, there might be a reasonable expectation of such an order even if the application succeeded. In my view, again, the nature of the application and its result is the telling matter of those that are relevant and to be taken into account under the Family Law Act.
I would make an order for the father to pay the mother's costs of and incidental to the application even if I had evidence before me of modest or even tight financial circumstances on the part of the father. However, I, in fact, have little understanding of the financial position of either party and therefore cannot place weight on that factor. I, however, do not have the means to assess the reasonableness or otherwise of the costs claimed and will not fix them.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate:

Date: 16 October 2009