LEDFORD & WESSLING
[2015] FamCAFC 226
•2 December 2015
FAMILY COURT OF AUSTRALIA
| LEDFORD & WESSLING | [2015] FamCAFC 226 |
| FAMILY LAW – APPLICATION IN AN APPEAL – PRACTICE AND PROCEDURE – Application seeking an extension of time to file Notice of Appeal – Where the delay is explained but the significant issue is whether there is any merit in the appeal – Where there is no merit in the appeal – Application dismissed. |
| Family Law Act 1975 (Cth) s 65L Family Law Rules 2004 (Cth) r 22.03 |
Gallo v Dawson (1990) 93 ALR 479
House v The King (1936) 55 CLR 499
| APPLICANT: | Ms Ledford |
| RESPONDENT: | Mr Wessling |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton |
| FILE NUMBER: | BRC | 5199 | of | 2012 |
| APPEAL NUMBER: | NA | 61 | of | 2015 |
| DATE DELIVERED: | 2 December 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 1 December 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 July 2015 |
| LOWER COURT MNC: | [2015] FCCA 2027 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Applicant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Respondent appeared in person | ||
| Ms Boulton |
Orders
The Application in an Appeal filed 9 September 2015 is dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ledford & Wessling has been approved by the Chief Justice 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: NA 61 of 2015
File Number: BRC 5199 of 2012
| Ms Ledford |
Applicant
And
| Mr Wessling |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 9 September 2015, Ms Ledford (“the mother”) filed an Application in an Appeal seeking an extension of time to file a Notice of Appeal from parenting orders of Judge Cassidy made on 28 July 2015. The parenting orders concern the child, born in 2004 (“the child”) and his living arrangements as between the mother and Mr Wessling (“the father”).
The orders of Judge Cassidy provide the father have sole parental responsibility for the child, with the mother to write and send gifts only on the child’s birthday, Easter and Christmas. The mother would otherwise have no time with the child. This order was consistent with the submissions of the Independent Children’s Lawyer (“the ICL”) at the trial.
The mother has no legal representation. In support of the Application the mother filed an affidavit on the same day. Unfortunately, the mother in this affidavit fails to explain the reason for the delay or the possible merits of the appeal. A draft Notice of Appeal accompanying the affidavit does not contain grounds of appeal and is barely comprehensible.
Background and Reasons of the Primary Judge
As the judge explained, this is a complicated matter with a long history in the courts including child protection proceedings in the State Courts. The primary judge set out the relevant parts of reports prepared for the child protection proceedings. The Child Protection Order ceased to have effect on 10 June 2011. The mother had no contact with the child after that time until an order was made pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) to enable supervised visits by the mother with the child.
A report dated 23 April 2013 was provided to the court in relation to those visits:
21.Ms [S] concluded at paragraph 98 of the first report:
“[98] I believe that [Ms Ledford] poses a risk of physical and emotional harm to [the child] as a result of her ongoing drug use and her inability to regulate and manage her emotions which often results in abusive and aggressive behaviours. I believe that [Ms Ledford] does not have sufficient and robust coping strategies to manage her emotions, particularly in relation to anxiety, stress and anger, and I am concerned about her ongoing use of marijuana and the exposure of this lifestyle to [the child]. Until such time she is able to demonstrate sufficient change in these areas, her time with [the child] either needs to be supervised or if unsupervised limited in duration to decrease the stress that can be associated with providing care for a long period of time.”
22.Ms [S’s] recommendations, at paragraph 100 of that report, were:
“[100] Based on this assessment it is respectfully recommended that:
a.[The child] live with his father.
b.[Mr Wessling] is given sole parental responsibility for all decisions regarding [the child].
c.[The child] spend supervised time with his mother at a contact centre each month. I can not envisage this increasing or becoming unsupervised any time in the near future, and certainly not before [the child] is at least twelve years of age.”
23.Supervised time was put in place and the contact occurred at the [C] Family Contact Centre. The contact continued to occur at that Contact Centre until February of 2015. On 11 February 2015 the [C] Family Contact Centre wrote the following letter:
“Dear [Ms Ledford],
We wish to advise that supervised contact visits between [the child] and you at [the Contact Centre] have been cancelled by us. Our rationale for this decision is as follows –
You have breached Numbers 4, 5 and 7-2 of the service agreement, which are as follows, at a visit with your child on the 24th January 2015.
4. Respectful Behaviour –
I will behave in a respectful and responsible manner at all times during the provision of the service, and I will take responsibility for my children’s behaviour whilst they are at the Centre, in my care. I will listen and abide by staff members guidance at all times.
5. Mobile phones and Photographs –
I am aware that the use of mobile phones, cameras, videos and audio taping equipment is strictly prohibited during contact at the centre.
7. Parental Conduct –
I understand that while I am at the centre there are certain codes of conduct that must be adhered to, and failure to comply with the following points may result in contact being cancelled, I must,
- Not ask the children questions about where they live, attend school or the other parent’s life.
This decision is final and the [C] Family Contact Centres will not enter into any further discussion with you on this matter by phone or by written correspondence.
Yours faithfully,’
Board of Management
[C] Family Contact Centre”
24.As a result of this history, at the moment the child is having no time with the mother and there is no obvious place where supervised time can be commenced.
(Original emphasis)
Other issues before the primary judge included a history of family violence alleged by both parents, drug and alcohol abuse and the child’s expressed views.
The trial judge carefully considered a number of options and finally decided that there was no alternative other than a no time order to protect the child.
Principles for an Extension of Time
A Notice of Appeal must be filed within 28 days of the making of the relevant order (pursuant to r 22.03 of the Family Court Rules 2004 (Cth) (“the Rule”)). The Rules allow a party to apply to extend the period of time fixed under the Rules. No further criteria are contained within the Act or the Rules to assist in how the discretion is exercised to extend time.
The principles for granting an extension of time are well known. Reference is often made to Gallo v Dawson (1990) 93 ALR 479 at 480-481 per McHugh J, and in particular the following three factors (although they are not decisive or exhaustive):
· Whether there is an adequate explanation for the delay;
· The proposed grounds of appeal having some merit; and
·That any prejudice to the respondent can be compensated by an order for costs.
The mother submits that the reason that she did not file a Notice of Appeal in time is that she mixed up the dates. The Notice of Appeal was due to be filed on 25 August 2015 so at the time of filing the application to extend time the mother was just over two weeks out of time. The delay issue is of little relevance in this application. The real question is whether it can be seen that there is any possible merit in an appeal.
The Proposed Appeal
The mother submits the primary judge was in error as the judge did not take into account that the information from the Department of Child Safety was incorrect. An example given, in relation to her conviction for grievous bodily harm, the mother submits that the information incorrectly stated that she threw a brick at a person’s head but in fact, she threw the brick at the person’s leg. The mother said that she has been a victim of police harassment and that her criminal history should not be held against her.
In relation to the father, the mother submits that he has a history of mental health issues and that the judge should have ordered that the father undergo a psychiatric examination. It is not clear whether the mother asked the judge to make that order.
The mother further submits that the child is in serious danger of abuse if he remains with the father.
The mother made complaints in relation to the legal representatives that have acted for her in this matter in the past. The mother was self represented at the trial which no doubt caused her some difficulty, but when asked about this she was unable to say how there was any unfairness to her.
In relation to the mother’s complaint that a psychiatrist should have prepared a report in relation to the father, the ICL submitted that there was no suggestion in the family report that psychiatric reports were recommended. It was explained by the ICL that the primary judge had the benefit of a considerable amount of expert evidence.
The application was not supported by the ICL.
The father opposes the application.
Conclusion
Although it is unusual to refuse an application for an extension of time to file an appeal where the delay is not great, it cannot be said in this case that there is any merit in the appeal. Apart from stating that the child should be living with her rather than the father, the mother was unable to point to any error on the part of the primary judge.
It may be helpful to repeat the well-known passage from House v The King (1936) 55 CLR 499 at 504-505:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
The application should be dismissed.
costs
There will be no order as to costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 2 December 2015.
Associate:
Date: 2 December 2015
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