Jackson & Cameron
[2016] FamCAFC 275
FAMILY COURT OF AUSTRALIA
| JACKSON & CAMERON AND ANOR | [2016] FamCAFC 275 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file appeal books – Where the applicant did not inform the court when the appeal books could be ready – Where the applicant may not have the capacity to prosecute the appeal – Where consideration must be given of the need to protect the child from further uncertainty – Where the appeal grounds are unlikely to enjoy success – Application dismissed – Where by virtue of the application for an extension of time being dismissed the appeal is deemed abandoned pursuant to r 22.21 of the Family Law Rules 2004 (Cth). |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.21 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Jorgensen v Slater & Gordon Pty Ltd [2009] VSCA 39 |
| APPLICANT: | Mr Jackson |
| FIRST RESPONDENT: | Ms Cameron |
| SECOND RESPONDENT: | Ms Jackson |
| INDEPENDENT CHILDREN’S LAWYER: | Delaney Lawyers |
| FILE NUMBER: | SYC | 2701 | of | 2012 |
| APPEAL NUMBER: | EA | 8 | of | 2016 |
| DATE DELIVERED: | 30 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 29 November 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 December 2015 |
| LOWER COURT MNC: | [2015] FCCA 3410 |
REPRESENTATION
| THE APPLICANT: | In person (by telephone) |
SOLICITOR FOR THE FIRST RESPONDENT: | Mr Namisnyk of Abrams Turner Whelan Family Lawyers (by telephone) |
THE SECOND RESPONDENT: | In person (by telephone) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hearl (by telephone) |
Orders
The Application in an Appeal filed on 18 October 2016 is dismissed.
NOTATION
A.It is noted that by operation of r 22.21 of the Family Law Rules 2004 (Cth) the appeal is deemed abandoned.
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 Jackson & Cameron and Anor 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 8 of 2016
File Number: SYC 2701 of 2012
| Mr Jackson |
Applicant
and
| Ms Cameron |
First respondent
and
Ms Jackson
Second respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 18 December 2015 Judge Kemp made parenting orders concerning the child B, born in 2003, the child of Ms Cameron (“the mother”) and Mr Jackson (“the father”). The child’s paternal grandmother, Ms Jackson, was a party to those proceedings.
His Honour ordered that the child live with the mother, and that the mother have sole parental responsibility for the child, subject to an obligation to notify the father before making significant decisions about the child. The trial judge further ordered that the father have telephone contact with the child once each fortnight, to be monitored by the mother until the child turns 14. The orders also provided that the mother make any arrangements necessary to facilitate the child communicating with the father and the paternal grandmother at any reasonable time as the child requests.
By Notice of Appeal filed on 12 January 2016, the paternal grandmother, who was the second applicant in the proceedings before the trial judge, appealed his Honour’s orders. The father filed a cross appeal against his Honour’s orders on 13 January 2016.
On 22 March 2016 Registrar Halbert made procedural orders to prepare the appeal for hearing and those orders included that the paternal grandmother be responsible for the preparation of the appeal books and that they be filed and served on or before 4 May 2016. On 3 May 2016 the paternal grandmother discontinued her appeal.
Further procedural orders were made on 2 August 2016 which deemed the father’s cross appeal to be the appeal in the matter and the procedural directions made on 22 March 2016 were discharged.
The Appeals Registrar directed that the father file a draft index to the appeal book by close of business on 30 August 2016. That direction was complied with and on 20 September 2016 further procedural directions were made which required the father to be responsible for the preparation of the appeal books and that they be filed and served on or before 18 October 2016.
On 18 October 2016 the father filed an Application in an Appeal seeking an extension of time in which to file the appeal books.
In his affidavit he said:
1. Orders set by KEMP J outlining extensive requirements of which I find very difficult to complete in the allocated period. Additionally, I am having great difficulty defining the details.
2. Health – Fistula, Migraines, Hypoglycaemic Attacks Insomnia, IBS, Flatulence, Darrehea
3. Financial –difficulties with obtaining legal assistance that is suitable for my health problems
(as per original)
A note on the appeal file reveals that on 20 October 2016 an assistant to the Appeals Registrar spoke to the father about having him send a clear copy of his application to the court by post. It is not necessary to go into the detail of the response, but it seems that the father was unable to leave the house by reason of his mental health and thus the document could not be posted.
Some further matters taken from the reasons of the trial judge are relevant to the question of whether there should be granted an extension of time in which the father can attend to the necessary procedural directions.
Procedural history and the trial judge’s reasons
The trial judge set out as a preamble to his reasons the procedural history of the matter.
In May 2008 parenting orders were made which did not provide for the father to spend time with the child, but did provide for the father to have regular communication with the child. His Honour noted that the May 2008 orders were made by consent at a time that the father was represented (at [19]). His Honour found that the father had been inconsistent and irregular in his attempts to communicate with the child since the orders had been made. In any event, the child did not spend any time with the father from 2008 until 2013.
The father filed an application for orders for time with the child in May 2012. Consent interim orders were made on 14 March 2013 which amended the 2008 orders to provide that the father communicate with the child by webcam or Skype. The father did not appear on the day on which the proceedings were listed for mention (at [38(v)]). However he appeared at an adjourned hearing on 8 October 2013 and further interim orders were made that provided for him to speak to the child by phone.
His Honour also noted that the hearing of the instant matter commenced on
19 May 2014 but was adjourned part-heard on 20 May 2014, as the father had been hospitalised. The matter was then adjourned to the next available hearing dates which were 27 and 28 January 2015 (at [38(z)]).
His Honour noted the orders that the father and paternal grandmother sought in their respective applications, as well as the orders the mother sought in her response. The Independent Children's Lawyer also prepared a minute of proposed orders and the mother and paternal grandmother then indicated which of these orders they agreed with. His Honour noted that the father did not indicate his consent to any of these proposed orders (at [6]). Although it is apparent that there were areas of disagreement between the parties, his Honour noted at [18] that all parties agreed that the child should live with the mother and so that order was made by consent.
His Honour further noted that notwithstanding earlier trial directions, leave was given to the father to rely on certain, identified affidavits (at [7]).
His Honour found that, while the father is a “familiar figure” to the child, because of the extended period in which no time was spent with the father and the irregular communication by telephone, the child’s emotional attachment to the father was weak. His Honour further noted that the child:
55. m) …presented as curious about the father and expressed an interest in possibly spending time with him, under strictly controlled and supervised conditions involving professional people and/or with persons who are familiar to him and who make him feel safe, such as the mother and members of the maternal family.
Indeed, as his Honour recorded, that short period in which the child was in the father’s presence for the purposes of the assessment by the family consultant was described thus:
56.b) With the mother’s and child’s knowledge and consent, a very short meeting between the child and the father occurred subject to a high level of structure and close supervision, which included at all times (at the child’s request) the continuous presence of the family consultant and a security guard.
The issue of the father’s mental health was a serious issue in the proceedings before the trial judge. Although there was no formal psychiatric evaluation of the father before the court, the family consultant set out in her report the father’s behaviours she observed during her assessment of him. His Honour set out this evidence at [59(a)] as:
The father’s medical conditions and health issues will continue to make it difficult for him to travel long distances and the geographical distance between the father’s and the mother’s residences [the mother lives in New South Wales and the father in Queensland] create practical difficulties and expense issues and restricts the type of contact the child could have [with the father].
His Honour recorded that the family consultant expressed concerns about the father’s functioning (at [59(b)]) and his emotional wellbeing if his application was not successful (at [59(f)]), and said that it would be emotionally difficult for the child to travel to Queensland to see his father, and the child does not want to do that (at [59(i)]).
The family consultant identified that it was highly probable that the father would be unable to restrain himself from discussing matters with the child that the father believes are important and which the consultant said would be highly confronting and stressful for the child. She further identified a risk of the child being exposed to the father’s highly negative views about the mother (at [59(j)]).
His Honour noted the family consultant’s conclusion as recommending:
59.m) A cautionary approach in respect of the emotional risk of harm to the child [of spending time with the father] is, therefore, recommended. Any contact the child has with the father in the future will need to occur in a way that is safe for the child, shields him from conflict and moderates the father’s influence over his emotional development and over the development of his value systems...
After further discussion of the family consultant’s views, the trial judge then concluded:
89. The father regarded everybody as “putting rules” on him. He explained that as being the law, justice, examination orders and the like, indeed even giving evidence in this Court, he saw as being a rule imposed upon him. The father was, somewhat, opaque as to what he regarded as being inappropriate conduct with respect to the child. He stated: “I don’t know what is inappropriate”. Of concern to the Court was the father’s rather dismissive view of anyone else’s opinions and concerns, being apparently fixated on his own experiences as being the only “true” ones. He said he would have to assess behaviour at the time. As to his recollection, when matters were put to him concerning events in 2009 in Queensland, the father stated: “I don’t remember what I did last week”. All of these give the Court considerable concern as to the father’s parenting capacity and weigh heavily against the father’s parenting orders, being accepted.
Further the trial judge concluded that the child had not been harmed by having no communication with the father (at [100]) and that there was a real risk to the child due to the father’s “own personal narrative” assuming importance to him, rather than the “child’s narrative” (at [101]).
In relation to the medical records produced in relation to the father’s hospitalisation his Honour said:
102. …The Court accepts that while some of the material might be dated (see Exhibit “12”), it raises an issue of caution to be exercised by the Court when considering any time or unsupervised time to be spent by the child with the father, particularly, as some of the medical notes record the father’s lack of insight into the seriousness of his condition, including his mental health. Of particular concern is the father’s attitude in seeking to diminish, or indeed, dismiss the circumstances giving rise to the JEO. Further, neither the father, nor the paternal grandmother, made any reference in their evidence to the father’s history of hospital admissions, other than when cross‑examined in relation to those.
After the conclusion of the evidence, on the application of the mother, the trial judge gave leave to reopen the case to adduce evidence of events which occurred subsequent to the close of the evidence. His Honour notes that the father failed to notify the mother and Independent Children's Lawyer of any objection he might have to the evidence, and failed to file and serve any affidavit on which he sought to rely in opposition of the evidence that the mother wished to adduce, although the court had made orders to this effect.
As to the child’s relationship with the father his Honour said:
120.b) Given that the child has not spent any time with either the father or the paternal grandmother, if orders were made for the child to spend time away from the mother and with the father or paternal grandmother, this has the potential to cause the child some distress. Although, it should be noted that for the purposes of the Child Inclusive Conference and the family report interviews, the child was not observed to be distressed in any way, having regard, particularly, to the role of [the family consultant] (including a security guard) in that process and to which the Court attaches some weight.
Having heard the evidence, the court made orders for the provision of submissions. The father failed to provide any submissions.
Thus his Honour made the impugned findings.
The application
All parties, including the Independent Children's Lawyer, appeared by telephone on the application. In the first instance, the father did not appear. The paternal grandmother informed the court that she was hopeful that the father might be able to ring but said that he was extremely unwell and the prospect of his attending the court by telephone had precipitated physical illness. The paternal grandmother considered the task of preparing the appeal to be extremely burdensome and was not in a position to say when or, indeed, if, the father could get the appeal ready for hearing.
Towards the end of the hearing the father appeared by telephone. He was asked how long he required in order to attend to the matters required of him to prepare the appeal. There then ensued a torrent of words in a conversation between the father and the paternal grandmother about whether he could or could not answer that question and how long he might need to answer the question. He could not be interrupted nor was he apparently able to answer that question. The call was then terminated.
The principles relating to applications for an extension of time are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion, which 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 the prospects of a successful appeal.
It is to be acknowledged that delays in proceedings before courts affect not only the litigants themselves but the general administration of justice. Attenuation of hearings increase the understandable feelings of uncertainty and unease in respondents. Particularly too in cases involving children, their lives are affected by the resulting delay and uncertainty as to their future.
In this matter, three factors are important in determining the fate of the application. The first relates to the prospect that any extension granted would in fact lead to the father complying with the orders. His response to the request of the Appeals Registrar to post documents to the court, together with his conduct on the hearing and the paternal grandmother’s concerns that his significant ill health will prevent him from preparing the appeal does not bode well for any future compliance.
Secondly, having considered both the trial judge’s reasons for determination and the proposed appeal grounds, I am unpersuaded that the husband’s appeal would necessarily enjoy success.
In Jackamarra v Krakouer (1998) 195 CLR 516 Kirby J said at 540 at [66]:
The party seeking indulgence bears the burden of persuading the decision‑maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile.
(Citation omitted)
In Jorgensen v Slater & Gordon Pty Ltd [2009] VSCA 39, Ashley JA, with whom Maxwell P agreed, said:
7 It does not follow, because an appeal cannot be said to be wholly devoid of merit, that breach of a rule which imposes a time limit for the taking of a procedural step demands the making of an order under r 64.16(2) [providing for reinstatement of an appeal deemed abandoned]. To conclude otherwise would fetter the discretion which Tadgell J described in Lagarna. Moreover, it would be incompatible with the range of pertinent considerations identified by Kirby J in Jackamarra v Krakouer. So, it may be accepted that an appeal on foot should normally be allowed to run its course to hearing and determination unless it is quite devoid of merit. But that generality admits of exceptions.
(Citations omitted)
While it could not be said that the appeal was so wholly devoid of merit that to grant an extension of time would be futile, this matter falls squarely within the exception to the general rule of which Ashley JA spoke.
Finally, in Jackamarra v Krakouer (1998) 195 CLR 516, Gummow and Hayne JJ said at 528:
33. Her appeal is as of right and was instituted within time but that right must be exercised subject to the limitations imposed by the rules. If exercising her right in accordance with those rules, she should not be denied the opportunity to present her appeal in the ordinary way except in a clear case. So, too, when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way.
In this case, all other things are not equal. The trial judge’s reasons speak powerfully of the need to protect the child from the risk of emotional harm and from further uncertainty and anxiety.
For the foregoing reasons, the application to extend the time in which to file the appeal books will be dismissed.
The effect of dismissal of the application is that the father is in breach of his obligation to file and serve the appeal books as directed in the procedural orders of 20 September 2016. Pursuant to r 22.21 of the Family Law Rules 2004 (Cth), the appeal will be deemed abandoned.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 30 November 2016.
Associate:
Date: 30 November 2016
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