Long and Long

[2018] FamCAFC 52

FAMILY COURT OF AUSTRALIA

LONG & LONG [2018] FamCAFC 52

FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where there is a reasonable explanation for the delay in filing a Notice of Appeal – Where the proposed appeal lacks merit – Application dismissed.

Family Law Act 1975 (Cth) ss 60CC, 70NBA

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
De Winter and  De Winter (1979) FLC 90-605
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT: Mr Long

RESPONDENT: Ms Long

FILE NUMBER: PAC 4450 of 2012

APPEAL NUMBER: EA 20 of 2018

DATE DELIVERED: 21 March 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 1 March 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 14 December 2017

LOWER COURT MNC: [2017] FCCA 3118

REPRESENTATION

THE APPELLANT: In person

THE RESPONDENT: In person (by telephone)

Orders

1. The Application in an Appeal filed on 22 January 2018 is dismissed.

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 Long & Long 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 20 of 2018
File Number: PAC 4450 of 2012

Mr Long

Appellant

And

Ms Long

Respondent

REASONS FOR JUDGMENT

Introduction

1. By an Application in an Appeal filed on 22 January 2018 Mr Long (“the applicant”) seeks an extension of time in which to appeal against parenting orders made by Judge Newbrun on 14 December 2017. In those proceedings the applicant contended that Ms Long (“the respondent”) had contravened orders providing for the children to spend time with him. The primary judge dismissed the applicant’s contravention application and pursuant to s 70NBA(1) of the Family Law Act 1975 (Cth) (“the Act”) varied the orders to remove what his Honour regarded as an ambiguity.

Application for an extension of time

1. The principles to be applied in applications for extensions of time 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.

Explanation for the delay

1. The primary judge’s orders were made on 14 December 2017.  Any appeal from those orders should have been filed by 11 January 2018.

2. The applicant’s explanation for not filing the Notice of Appeal within the prescribed time was that he did not receive a copy of the orders until 9 January 2018.  He adds, however, at that stage he had still not received the reasons for judgment.  He nonetheless prepared a Notice of Appeal and on 10 January 2018 posted it to the GPO box of the Appeals Registry in Sydney.  The Notice of Appeal was delivered to that post office box on 11 January 2018, which was the last day in which an appeal could be lodged.  However, the Notice of Appeal was not received by the registry until 12 January 2018 and it could not be accepted for filing. 

3. Whilst prudence might have dictated not relying upon the post when time was critical, the applicant has a reasonable explanation for his delay in filing a Notice of Appeal. He was only one day late and this application was filed promptly thereafter.  These matters favour an extension of time.

Merits of the appeal

1. Before turning to the merits of the proposed grounds of appeal, it is necessary to set out briefly the reasons of the primary judge.  In doing so I note that there were four contraventions alleged – two in relation to spend time orders and two in relation to alleged breaches of non-denigration orders.  All were dismissed.  As far as I can discern, the appeal is only against the findings in relation to the contraventions of the spend time orders and the subsequent amendment of them.  I shall therefore confine myself to those aspects of his Honour’s reasons.

2. On 25 June 2014 orders were made in the Federal Circuit Court of Australia for the children to live with the respondent and spend substantial time with the applicant.  Relevantly, at the time of the alleged contraventions, the children were to spend the following time with the applicant, as provided for in order 8:

   During all school holiday periods [from after the end of term 4 in 2015]

   c.For half of each school holiday period on dates as agreed and failing agreement the children to spend the first half of the school holiday period with the [applicant] in even numbered years and the second half of the school holiday period with the [applicant] in odd numbered years.

3. In addition orders 15 and 16 provided:

   15.Commencing from 7 October 2014, once in every three month period the [applicant] is permitted to travel to Queensland with the children for a block period of up to 5 days upon the [applicant] giving at least 28 days notice of the date of travel to [respondent].

   16.Any travel authorised by order 11 [sic – order 15] above is to occur at a time including a day or days on which the [applicant] is already spending time with the children.

4. The applicant sought to take the children to Queensland in the periods 24 to 28 March 2016 and 16 to 20 June 2016.  The respondent refused and that refusal formed the basis of the contravention applications.

5. The respondent did not dispute that she did not consent to the children spending time with the applicant on those dates. However, she asserted that orders 15 and 16, properly construed, did not permit him to take the children to Queensland on those dates. The applicant’s position, on the other hand, was that on the correct construction of orders 15 and 16, he could take the children to Queensland during the time that the children would otherwise be spending with the respondent and when the children would otherwise be at school. Thus he asserted that he was entitled to have the children spend time with him on the dates referred to in [9].

6. In other words, the applicant’s position was that orders 15 and 16 gave him time in addition to the time provided for by the other orders, while the respondent asserted that those orders did not.

7. The primary judge dismissed the contraventions saying:

   28.In these circumstances, without proceeding to express a view on the correct construction of orders 15 and 16, and assuming for the moment that the [applicant]’s contended construction of orders 15 and 16 is correct, the Court finds that the [respondent] did not “intentionally” fail to comply with orders 15 and 16 (see s 70NAC(a)(i) of the Act), and the [applicant]’s pleaded contraventions in this context should be dismissed accordingly.

   29.In the alternative, again in these circumstances, and assuming for the moment that the [applicant]’s contended construction of orders 15 and 16 is correct, if the Court is incorrect in relation to the above finding, then the Court would find that the [respondent] had reasonable excuse for contravening orders 15 and 16 because, or substantially because, she did not, at the time of the contraventions, understand the obligations imposed by the orders on her, and the Court is satisfied that the [respondent] ought to be excused in respect of the contravention.

   30.The Court should state that it follows that if the [respondent]’s contended construction of orders 15 and 16 is correct, then there has been no relevant contravention by her in this context.

8. His Honour went on to find that the parties’ differing interpretations of orders 15 and 16 had caused much conflict between them which, in turn, caused the respondent to experience “adverse emotional reactions over a significant period of time” (at [57]).  His Honour felt that therefore it was in the interests of the children that the orders be amended because if not “there is a significant risk that the children’s meaningful relationship with the respondent will be adversely affected” (at [58]).  On the other hand, his Honour found that the orders he proposed to make would not adversely affect the meaningful relationship that presently existed between the children and the applicant. Orders 15 and 16 were amended as follows (at [59]):

   Order 15: commencing 15 December 2017, once in every 3 month period, the [applicant] is permitted to travel to Queensland with the children for a block period of up to 5 nights (subject to an extension of this 5 night block period during, and only to the extent of, the [applicant]’s permitted school holiday time with the children) upon the [applicant] giving at least 28 days’ notice of the date of travel to the [respondent].

   Order 16: Any travel to Queensland authorised by order 15 above shall only occur:

   (a)during any school holiday period that the [applicant] is entitled to spend with the children pursuant to order 8, or

   (b)during the time that the [applicant] is entitled to spend with the children pursuant to order 7 g), with the [applicant] being permitted to extend such time in order 7 g) (so as to total 5 nights) until the commencement of school Thursday in the first week.

   Order 17: For the purpose of orders 15 and 16, the [applicant] is to provide to the [respondent] the address and contact details of any place where he and the children will be staying throughout the period of travel.

9. The applicant asserts that these orders effected a reduction of his time with the children by 20 days a year.  The respondent, of course, asserts that they merely give effect to the intention of the earlier orders.

10. The proposed grounds of appeal are:

    1.His Honor made errors of fact demonstrated in his Reasons For Judgement (For eg. paragraph 27, 28 and 61 which changed the overall result of his findings and new orders.  These errors came about by:

    a.His Honor overlooking relevant evidence which was vital to his findings (27, 28).  (Respondent Lawyers letter).

    b.His Honor being mistaken about the applicants work commitments which affected his new orders (61).

    c.His Honor made errors of fact regarding the interpretation and the context of the original orders.

    d.His Honor, as a result of errors of fact, made findings and new orders inconsistent with the evidence.

    2.His Honor made new orders that adversely affect the children, contrary to His Honor’s intentions as mentioned in paragraph 59 in his Reasons for Judgement, and are also now extremely bias against the children’s time with their paternal family.

    3.Procedural Unfairness.  His Honor made orders (17^th March 2016) to limit the length of my further amended affidavit to less than the respondent’s affidavit.  I feel that this was bias against me from the start and diminished my chances of receiving natural justice.

11. In his oral submissions the applicant said that his four main complaints were:

    ·The primary judge had made an error in referring to his work commitments;

    ·The primary judge erred by not referring to a letter sent to him by the respondent’s lawyers;

    ·The amended orders reduced his time with the children without any explanation

    ·The primary judge restricted his affidavit in reply to six pages, which was procedurally unfair.

12. I note that the last point is not the subject of appeal and the applicant seeks no orders to address it.

Work commitments

1. The applicant submits that there was no evidence of his work commitments before the court, so that they could not be properly considered by the primary judge.

2. The only reference to work commitments is in the following paragraph of his Honour’s reasons:

   61.The above proposed variations to orders 15, 16, and 17, will result in the [applicant], pursuant to those proposed varied orders, being permitted to spend additional time with the children during school term times (but only if he travels to Queensland with the children at these times), noting his Saturday time with the children, under order 7 g), cannot begin until 4pm on that Saturday by reason of his work commitments. Such additional time will enhance the children’s meaningful relationship with him.

3. The orders made on 25 June 2014 provide for the children to spend time with the applicant during school terms on weekends commencing at 4.00 pm Saturday.  The applicant informed me that he did, in fact, have work commitments that prevent the children from spending time with him until 4.00 pm on Saturday, but that restriction did not apply to occasions when he wished to take the children to Queensland. 

4. The primary judge seems simply to have followed the format of the earlier orders. The reference to work commitments in [61] seems to have been picked up from the reasons for judgment for the 2014 orders, in which the applicant’s work commitments were referred to as the explanation for why the children’s time with the applicant was to commence at 4 pm each Saturday during school terms. To do so would not involve any error.

5. In any event, that accords with what the applicant told me – that is, he generally does have work commitments until 4 pm on Saturdays.

6. Assuming that there was a contest as to this issue, the primary judge was not obliged to accept the applicant’s statement that his work restrictions did not apply to the trips to Queensland. Even if his Honour had accepted evidence to that effect, he would not have been compelled to select a different commencement time. Such matters are very much within a trial judge’s discretion.

7. It follows that even if there was an error in referring to work commitments, any such error would seem to be immaterial to the outcome: De Winter and De Winter (1979) FLC 90-605 at [71].

8. It is difficult to identify any error as asserted by the applicant.

The solicitor’s letter

1. The applicant submits that the primary judge erred by not taking into account a letter sent to him by the respondent’s solicitors.  The applicant asserts that the letter sets out an interpretation of the orders that was not consistent with the respondent’s so that, according to the applicant, she has breached the orders as they were understood by her lawyers. 

2. It is difficult to assess this ground of appeal because the applicant did not annex to his affidavit a copy of the letter said to have been sent to him by the respondent’s solicitors.  Nor did he have a copy of it available in court at the hearing of this application.

3. As I have indicated, the primary judge clearly accepted the respondent’s evidence as to her interpretation of the orders.

4. For himself, the primary judge considered that “the proper construction of orders 15 and 16 is arguably open to different interpretations, and is arguably open to some doubt” (at [56]).

5. In the absence of any cross-examination of the respondent on the letter and her intention, I do not see how the letter could be regarded as relevant. If, however, there was cross-examination about the letter, then the primary judge’s finding as to the respondent’s understanding of the orders would have been made in the light of that cross‑examination. A trial judge is not obliged to refer to every piece of evidence and a failure to mention something does not mean that it has been overlooked: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 and 271.

6. However looking at his Honour’s reasons as a whole, I do not see how the letter as described by the applicant to me in his oral submissions would have a material impact on the outcome.  It is difficult to see that the failure of the primary judge to refer to it is a material error.  Indeed, as I have said, it may not even be an error at all. 

Did the changed orders reduce the applicant’s time with the children without any explanation?

1. As would be apparent from what I have already written, the applicant’s view of the amended orders is that they reduced his time with the children.  The respondent’s view is that they did not.  This of course depends upon the differing interpretations of orders 15 and 16.

2. I have already indicated the primary judge found the interpretation of orders 15 and 16 was open to doubt and that the parties were likely to remain in conflict over those orders.  This in turn carried the significant risk that the respondent would experience adverse emotional reactions “which potentially adversely affect her parenting capacity of the children” (at [58]).  In those circumstances, the primary judge felt that there was a significant risk that the children’s meaningful relationship with the respondent would be adversely affected if the orders were not changed.  On the other hand, he found that the children’s meaningful relationship with the applicant would not be adversely affected by the change.

3. After dealing with this primary consideration under s 60CC(2) of the Act, his Honour moved to other considerations in s 60CC(3) including the children’s wishes, the parents’ opportunities to participate in decisions about major long‑term issues and fulfilling their obligations to maintain the children. His Honour then concluded:

   74.It would be preferable to make orders varying orders 15, 16 and 17, as proposed above, as such orders would be least likely to lead to the institution of further proceedings in relation to the children, as opposed to the continuation of orders 15, 16 and 17 in their current form. The Court states this view, in light of the history of the parties’ disputation in relation to orders 15 and 16 and 17, including the current proceedings being dealt with by the Court.

1. His Honour then found that it would be in the best interests of the children to vary the orders as was done. 

2. Therefore there is a clear explanation in the reasons as to why the orders were varied and this ground of appeal must fail.

Conclusion

1. I am conscious of the very small delay in filing the Notice of Appeal and the explanation for it.  However it is not in the interest of justice to permit an appeal to go forward when it has no prospects of success.  I consider this to be such an appeal and accordingly the application will be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 March 2018.

Legal associate: 

Date:  21 March 2018