Langley and Tarelli & Anor

[2018] FamCAFC 181

FAMILY COURT OF AUSTRALIA

LANGLEY & TARELLI AND ANOR [2018] FamCAFC 181

FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Application for an extension of time in which to file a Notice of Appeal – Explanation for the delay – Merits of the appeal – Where the proposed parenting appeal raises serious subject matter – Application allowed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.03

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jess v Scott (1986) 12 FCR 187; [1986] FCA 365

APPLICANT: Ms Langley

FIRST RESPONDENT: Mr Tarelli

SECOND RESPONDENT: Secretary, Department of Family & Community Services

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: PAC 4311 of 2014

APPEAL NUMBER: EA 113 of 2018

DATE DELIVERED: 19 September 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 6 September 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27 June 2018

LOWER COURT MNC: [2018] FamCA 522

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jones solicitor (by telephone)

SOLICITOR FOR THE APPLICANT: Executive Legal Pty Ltd

COUNSEL FOR THE FIRST RESPONDENT: Mr Shaw solicitor

SOLICITOR FOR THE FIRST RESPONDENT: B David & Associates

COUNSEL FOR THE SECOND RESPONDENT: Ms Barnett

SOLICITOR FOR THE SECOND RESPONDENT: Crown Solicitor’s Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

Orders

1. The time for filing a Notice of Appeal against the orders made by Cleary J on 27 June 2018 is extended up to and including 24 September 2018.

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 Langley & Tarelli 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 113 of 2018
File Number: PAC 4311 of 2014

Ms Langley

Applicant

And

Mr Tarelli

First Respondent

And

Secretary, Department of Family and Community Services

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. By an Application in an Appeal filed on 13 August 2018, Ms Langley (“the mother”) seeks an extension of time in which to file a Notice of Appeal from final parenting and property orders made by Cleary J on 27 June 2018. 

2. The proceedings were between the mother and Mr Tarelli (“the father”). The Secretary, Department of Family and Community Services (“FACS”) intervened in the parenting proceedings and an Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the parties’ child, D (“the child”).

3. Her Honour’s parenting orders provided for the child to live with the father and for the father and the Minister for Family and Community Services (“the Minister”) to share parental responsibility for him for a period of 12 months from the date of the orders.  Thereafter, the father was to have sole parental responsibility for the child, except in respect of the issues of the time the child would spend and communication he would have with the mother, for which the father and the Minister were to continue to share parental responsibility for a further 12 months. 

4. The property orders included a declaration that the mother and father were in a de facto relationship from May 2012 to March 2014 and provided for the mother to pay the father $257,912.  In exchange, the father was required to transfer all his right, title and interest in a property in Suburb C to the mother.

Application for an extension of time

1. The principles to be applied in this case are set out in the well-known case of Gallo v Dawson (1990) 93 ALR 479 at 480:

   …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.

2. The hearing of such an application 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 consequence for the parties of the grant or refusal of leave and the merits of the appeal.  The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the rules will work an injustice.

3. The father opposes an extension of time being granted.  The ICL and FACS did not wish to be heard on the application.

Explanation for the delay

1. The orders the subject of the proposed appeal were made on 27 June 2018. Accordingly, any Notice of Appeal against those orders was required to be filed by 25 July 2018 (r 22.03 of the Family Law Rules 2004 (Cth)).

2. The mother’s explanation for the delay was confusing but, stated simply, was that her solicitor mistook the date by which the Notice of Appeal had to be filed.  As a consequence, he attempted to file the Notice of Appeal two days late, on 27 July 2018.  While this explanation is not particularly compelling, I keep in mind that the consequences of a solicitor’s default should not readily be borne by his or her client (Jess v Scott (1986) 12 FCR 187 at 194–195).

3. The more significant delay, however, is that between the initial attempt to file the Notice of Appeal and the filing of this application for an extension of time some two weeks later.  No explanation was given as to why the mother took so long to file her application when the Notice of Appeal had already been prepared.

4. I consider that the mother’s explanation for the delay is less than satisfactory.  However, the delay itself was relatively short.

The merits of the proposed appeal

1. The mother’s solicitor was not in a position to make submissions as to the merits of the proposed appeal.  The draft Notice of Appeal and the primary judge’s reasons, however, give an indication of the nature of the appeal.

2. As outlined above, the appeal is against both parenting and property orders. For present purposes, it is sufficient to focus on the parenting aspect of the appeal.

3. Before the primary judge, each of the parties sought an order for sole parental responsibility and for the child to live with him or her and to spend time with the other parent as determined by the Court.  Ultimately, the primary judge made the orders outlined in [3] of this judgment.

4. The background to the making of those orders is long and complex but a short overview, taken from the primary judge’s reasons, is as follows.

5. The parties lived together for just under two years, from mid-2012 to March 2014.  The child was born during that time, in early 2013.

6. At some point shortly after the child’s birth, the mother began to attend on two psychologists.

7. In November 2013 the mother contacted FACS for the first time, reporting that she “could not do anything when [the child] was crying”.  In January 2014 she commenced participating in the Brighter Futures program supported by FACS.

8. During 2014 the mother made a number of allegations against the father of sexual assault and family violence.  The primary judge set out those allegations at [42] – [55] and found that the evidence did not bear out those allegations (at [155]).

9. On 20 February 2014 the mother threatened the father with a knife.  He reported the incident to the police and the police arrested the mother.  The police took out an Apprehended Violence Order for the father’s protection.  A risk of serious harm report was made to FACS about the incident.

10. Following this incident, the parties separated.

11. In May 2014, a FACS officer attended the mother’s home in relation to a report of a serious risk of harm to the child, after he was left at home by himself.

12. The father filed an Initiating Application in the Federal Circuit Court of Australia in September 2014.

13. In February 2015 the child was again left at home by himself.  The maternal grandmother had been looking after the child, but left before the mother returned home. On attending the mother’s house, the father discovered the child had been left there unsupervised, took the child into his care and contacted the police.

14. The mother filed a Response in July 2015 seeking sole parental responsibility for the child and that the child live with her and spend no time with the father.

15. Orders were made in the Federal Circuit Court on 8 July 2015 allowing FACS to intervene, providing for the child to live with the mother subject to her permitting FACS to randomly attend on her home and for the father to spend supervised time with the child facilitated by FACS.

16. Shortly after those orders were made, the mother’s mental and physical health deteriorated.  The child began to be detrimentally affected by the mother’s poor state.

17. In September 2015 the child’s time with the father ceased when the father travelled overseas.  The mother reported that she began to feel much better.  The primary judge said:

    85.I conclude that the mother felt confirmed, by these positive changes in herself and the child, in her belief that the visits for the child were harmful and destructive and that the child would be better off not seeing his father at all.

    86.Later in 2015, when FACS began to raise with her arrangements for the visits to resume, the mother describes as becoming seriously unwell immediately:

    My anxiety returned and I stared hyperventilating, experiencing palpitations, flashbacks and disassociation, my vigilance was again heightened and I felt paralysed with fear.

    87.I further conclude that the mother did not attribute the cause of her ill health to anything other than the father’s conduct towards her.

    88.The mother began to avoid communication with FACS knowing it would lead to discussion of time for the child with the father.

18. On 11 December 2015 an order was made for the preparation of a Single Expert Report.

19. The report was released on 27 June 2016.  The primary judge recorded the following observations made by the single expert in the report:

    158.The Single Expert identified a complex situation for the child. His analysis of the mother is that she has borderline personality dysfunction with narcissistic and antisocial personality traits. He explained that this manifested in the mother as having a sense of superiority and entitlement. She can be interpersonally exploitative, lack empathy or be unwilling to identify with the feelings and needs of others and can show arrogant behaviours.

20. The single expert recommended that the child live with the mother and that she have sole parental responsibility for him.  He recommended that the child’s time with the father gradually be increased in accordance with a defined series of steps.  There was also a recommendation that the mother and father attend on a therapist for the purpose of receiving parenting advice and family and individual therapy.

21. On 16 December 2016 the father amended his application so as to seek an order for sole parental responsibility and for the child to live with him.  The primary judge attributed the father’s change in position to his loss of “confidence in the possibility of a therapeutic solution to the parties’ conflict over the child or even the negotiation of any time for the child with himself at all” (at [98]), noting that by this time the child had spent no time with the father for almost 18 months.

22. On 8 September 2017 FACS filed an Application in a Case seeking sole parental responsibility for the child and proposing that the child live with the father.  Orders were made to that effect on that same day, and the child was removed from the mother’s care and placed in the care of the father and the father’s partner.

23. The final parenting and property proceedings were heard by the primary judge in October 2017 and judgment was reserved.

24. The mother made an application to re-open the proceedings on 28 May 2018.  In that application she sought leave to rely on five additional affidavits and material produced on subpoena.  In an amended application filed on 20 June 2018, she further sought that there be an updating report by the single expert in relation to the child.

25. On 27 June 2018 the primary judge delivered judgment both in relation to the substantive parenting and property proceedings and the mother’s application to re-open.  Orders were made in the terms described in [3] and [4] above and the mother’s application to re-open was dismissed.  The mother has not seen the child since 8 November 2017.

26. In respect of the parenting orders, the mother’s appeal focuses on three different areas:

    ·    Her Honour’s refusal to re-open the proceedings and her failure to have regard to the evidence of witnesses the mother wanted to call (Grounds 1 to 5);

    ·    Various challenges to her Honour’s findings, including in relation to family violence (Grounds 6-12); and

    ·    Failure to give reasons for the allocation of parental responsibility to the Minister (Ground 13).

27. It is accepted the primary judge did not, in terms, refer to the evidence of the witnesses referred to in the first group of grounds. That may or may not be an error depending upon the materiality of it. The mother’s evidence does not disclose the nature of the named witnesses’ evidence.

28. A number of grounds in the second group complain about inconsistencies in the primary judge’s findings, particularly those made in [22] compared with a number of later findings. Unaided by assistance from the mother’s solicitor, it is far from apparent to me that there is such a difficulty because [22] refers to findings of family violence in the mother’s home when she was a child and the later findings are as to violence in the relationship between the parties.

29. There are thus some difficulties in assessing the prospects of success of the proposed appeal. A large part of that difficulty arises from the cursory evidence adduced in support of the application. Once the time limit for the filing of an appeal has passed without a Notice of Appeal having been filed, the appellant has lost his or her right of appeal. An application for an extension of time in which to appeal is therefore not a mere formality but a substantive application. The evidence in support must adequately deal with all matters necessary to persuade the Court to grant the extension sought.

30. In this matter, therefore, it is tempting to say that the application should be dismissed because the evidence in support of it is inadequate. However, it is clear from the above background and the mother’s grounds of appeal that, at least in respect of the challenges to the parenting orders, the proposed appeal concerns serious subject matter and orders that have a marked effect on the child’s life.

31. I also take into account the fact that the delays appear to be those of the mother’s lawyer and not of her. The same may be said of the difficulties with the manner in which this application was prepared and the paucity of assistance on the hearing of the application.

Conclusion

1. In the circumstances of this case, taking into account these matters, with some reluctance I am satisfied that there is a sufficient basis for an extension of time to be granted.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 19 September 2018.

Legal associate: 

Date:  19 September 2018