M & M
[2005] FamCA 129
•4 March 2005
[2005] FamCA 129
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT CANBERRA Appeal No. EA 9 of 2005
File No. CAM 584 of 2003
BETWEEN:
M
Applicant Mother
-and -
M
Respondent Father
REASONS FOR JUDGMENT
BEFORE: Finn J
DATE HEARD: 21 and 28 February 2005
DATE OF JUDGMENT: 4 March 2005
APPEAL SUMMARY
MATTER:M and M
APPEAL NUMBER: EA 9 of 2005 (CAM 584 of 2003)
CORAM:Finn J
DATE OF HEARING: 21 and 28 February 2005
DATE OF ORDER: 4 March 2005
DATE OF JUDGMENT: 4 March 2005
CATCHWORDS: FAMILY LAW – APPLICATION for an EXTENSION of TIME to APPEAL FROM FEDERAL MAGISTRATES COURT – RESIDENCE AND CONTACT – Final orders made on 28 July 2004 granting residence to the father and defining contact arrangements for the mother – The length of the mother’s delay in filing a notice of appeal was difficult to determine – The mother’s reasons for the delay (whatever its length) not of themselves justifying the grant of an extension of time – The likely success of the mother’s proposed grounds of appeal discussed as the most significant consideration in determining the application – Grounds unlikely to be successful on an appeal – Consideration of whether any prejudice to the father would be able to be compensated by a costs order against the mother – Application for an extension of time refused.
Caselaw cited:
Gallo v Dawson (1990) 93 ALR 479
McMahon v McMahon (1976) FLC 90-083
Gillard v Gillard (unreported, Family Court of Australia, Melbourne, 8 April 1994)
Application for an extension of time to appeal dismissed.
Introduction
This is an application by the mother, formally filed by her on 1 December 2004, whereby she seeks an extension of time in which to file a notice of appeal against orders made by Brewster FM on 28 July 2004. The effect of those orders was that the child E, who is the child of the mother’s marriage to the father and who was born in April 2002, should live with the father and have defined contact with the mother. The precise terms of the orders are as follows:
1.THAT all previous Orders in relation to residence and contact with respect to the child … be discharged.
2. THAT the child live with the father.
3. THAT the mother have contact with the child as follows:
(a)Commencing 30 July 2004 from the conclusion of childcare, pre school or school on Friday to the commencement of childcare, pre school or school on Monday (or Tuesday if a long weekend) each alternate weekend.
(b)From 9.00am on the Monday preceding a contact weekend until 5.00pm on Tuesday. If the mother is working however it will be from the end of childcare or pre school on Monday until the commencement of childcare or pre school on Tuesday. This Order will terminate when the child commences school.
(c)For one half of each mid year school holiday period being the first half in odd numbered years and the second half in even numbered years.
(d)From 9.00am on 1 January 2005 to 5.00pm on 8 January 2005.
(e)From 9.00am on 24 December 2005 to 5.00pm on 2 January 2005.
(f)From 9.00am on 1 January 2006 to 5.00pm on 15 January 2006.
(g)From 9.00am on 24 December 2006 to 5.00pm on 6 January 2007.
(h)Thereafter for one half of the Christmas school holiday period being the first half of holidays commencing in an odd numbered year and the second half of holidays commencing in an even numbered year.
(i)From 10.00am to 5.00pm on Mother’s Day if it does not fall on a contact weekend.
(j)By telephone between 6.00pm and 6.15pm each Wednesday.
4.THAT in the event the mother establishes a residence in the [Central Coast] area, Orders 3(a), (b) and (i) are discharged. In such event the mother may exercise weekend contact in Canberra in the same terms as Order 3(a) on any weekend of her choosing provided she gives the father at least 14 days notice of her intention to exercise that contact. This contact is not to extend over two consecutive weekends.
5.THAT if Father’s Day falls on a contact weekend contact will end at 12.00 noon on that day.
6. THAT:
(a)Weekend and Monday contact is suspended during mid year school holidays and, after the child commences school, during the Christmas school holidays.
(b)After the contact referred to in Orders 3(d), (e), (f) and (g) weekend and Monday contact is suspended for an equivalent period of time that the mother is entitled to contact.
7.THAT for the purposes of Orders 3(c) and (h) the first half of school holidays will commence on the day school breaks up and end at 5.00pm on the middle day of the holidays. If the holidays have an uneven number of days the mother will have the extra day in even numbered years and the father will have the extra day in odd numbered years.
8.THAT for the purposes of Orders 3(c) and (h) contact in the second half of the school holidays will commence at 9.00am on the middle day and end at 5.00pm on the day before school resumes. If there are an uneven number of days the mother will have the extra day in even numbered years and the father will have the extra day in odd numbered years.
9.THAT when changeovers do not involve collection from childcare, pre school or school the mother shall collect the child from and return her to the father’s residence.
10.THAT the parties are restrained from taking the child more than 350 kilometres by road on a weekend.
11.THAT except for the purposes of collecting or returning the child the mother is not to visit the father’s house other than at his invitation.
12.THAT neither party is to telephone the other unless it is reasonable necessary and concerns the child.
13.THAT the mother sign such documents as are necessary to enable the child to have a passport.
14.THAT the father’s [Canberra] property … is charged in favour of the mother to secure his return to Australia from any overseas trip he undertakes with the child. The mother is at liberty to seek consequential orders should this occur.
15.THAT if the father wishes to travel overseas with the child he may cancel weekend and Monday contact to enable him to be overseas for 3 weeks. Weekend contact is to be made up immediately upon his return. He is to give the mother at least 28 days notice of his intention to do this and may not do so more than twice before the child commences school. When the child commences school this Order shall be discharged.
These orders were made by Brewster FM at the conclusion of a two day hearing on 27 and 28 July 2004. At that hearing, the mother was represented by a barrister who has had long experience in this jurisdiction and who was instructed by a firm of solicitors who specialise in this jurisdiction. The father was represented at the hearing by his solicitor, also a specialist in the jurisdiction.
On 19 August 2004, his Honour delivered comprehensive reasons for judgment in relation to the orders which he had made on 28 July 2004.
I commenced to hear the mother’s application for an extension of time to file her notice of appeal on 21 February 2005. On that date, the matter had to be adjourned part-heard until 28 February 2005 when the hearing was concluded. At the hearings on 21 and 28 February 2005, the mother appeared on her own behalf while the father was represented by his solicitor.
Principles governing an application to extend time to institute an appeal
The principles which govern the determination by this Court of an application to extend time to file a notice of appeal are as follows:
(1)There should be adequate reasons which explain the delay.
(2)There should be some prospect of success of the appeal, or alternatively, there should be a substantial issue to be raised on the appeal.
(3)There should not be hardship or prejudice or injustice to the respondent, which cannot otherwise be compensated by orders as to costs.
(4)The fundamental issue is whether the granting of an extension of time for leave to appeal out of time is necessary to enable the court to do justice between the parties.
(See Gallo v Dawson (1990) 93 ALR 479, McMahon v McMahon (1976) FLC 90-038 and Gillard v Gillard (unreported, Family Court of Australia, Melbourne, 8 April 1994)).
The length of the delay and the reasons for it
The mother’s evidence (both affidavit and oral) concerning her delay in filing a notice of appeal against the residence and contact orders made on 28 July 2004 was not always easy to follow. Overall, however, I am satisfied that her delay in filing a notice of appeal can be explained in the following way – whether that explanation is adequate is another matter.
On 29 July 2004, that is, on the day following the making of the orders, the mother apparently spoke by phone to the Registrar at the Sydney Registry of the Court who is responsible for appeal matters and also to her solicitor about aspects of the appeal process.
On 11 August 2004 the mother’s solicitors wrote her a very comprehensive letter which was in evidence before me and in which, amongst other things, various matters which had occurred at the trial were recorded and the processes and costs involved in an appeal against an order of a Federal Magistrate were also explained. Importantly, the solicitors explained to the mother that even though the Federal Magistrate’s reasons for judgment were not yet available, the appeal period would expire on 25 August 2004.
The mother claims that she did not receive the solicitors’ letter until about 4 September 2004 (by which time the appeal period had technically expired). It seems that after receiving that letter, the mother had some discussions with her solicitors, but they were not prepared to release to her the reasons for judgment (which had become available on 19 August 2004) because she still owed them money. I understood the mother to claim that she did not at that time realise that she could obtain a copy of the judgment from the Court – although she did apparently subsequently do this.
In early October 2004, the mother had “school holiday” contact with the child. I am satisfied that, as a result of difficulties experienced with the father in relation to that contact, the mother became convinced that the contact orders were unworkable and that she should pursue her appeal.
Annexed to the mother’s formal application (filed 1 December 2004) for an extension of time to appeal is a document (Annexure “A”) dated 18 October 2004 addressed to a Registrar and requesting “Review, Reword, Appeal Final Orders”. There is also an unfiled notice of appeal dated 18 November 2004. Whether the mother ever attempted (prior to the filing of her application to extend the time to appeal) to file either of these documents on the dates which they bear is not clear to me. However, as already mentioned, it was on 1 December 2004 that the mother filed her application to extend the time to appeal.
It is thus difficult to be precise about the length of the mother’s delay in seeking to file a notice of appeal. On the most adverse view, so far as she is concerned, her delay was technically from 25 August to 1 December 2004; that is, over three months. On the most generous view to her, the appeal period could be seen as commencing on or about 17 September (that is, 28 days after the delivery of the reasons for judgment) and the document, which was addressed to the Registrar and dated 18 October, could (if indeed it was ever filed in the Court) be regarded as the institution of the appeal. On this approach, the delay would only have been a few days.
Thus, as I have said, it is difficult to be precise about the length of the delay. However, it is somewhat easier to understand what were the reasons for the delay (whatever its length) – although the adequacy of those reasons remains an issue. While there was apparently some weeks’ delay in the mother receiving the solicitors’ letter of 11 August 2004, I am satisfied that the initial delay in this case was for the most part caused by the mother having insufficient funds either to pay her solicitors for the work done in connection with the trial or to put them in funds to commence the appeal process, and also by her own ignorance of her rights to obtain a copy of the reasons for judgment from the Court.
While I have considerable sympathy for the mother’s apparent financial plight, it could only be in the most extreme case, in my view, that a litigant would be entitled to rely on his or her financial position as an adequate reason for delay in instituting an appeal (for the purposes of extending the time to institute the appeal).
As to the mother’s self-represented status and to any alleged ignorance of the law, it was made clear by McHugh J in Gallo v Dawson, that ignorance of the law cannot generally be relied on to obtain an extension of time to appeal.
Whatever may have been the cause of the mother’s failure to file a notice of appeal prior to the October school holidays, I am, as I have previously indicated, reasonably satisfied that what caused the mother finally to take steps to initiate an appeal (apparently in the document addressed to the Registrar dated 18 October 2004) were the practical difficulties which she experienced with the contact orders in that school holiday period. It may be that in certain cases, practical difficulties experienced with the implementation of contact orders might be relied on by a litigant who wishes to appeal against those orders “out of time”. But I am not satisfied that such difficulties would, without more, justify granting the mother an extension of time in this case.
Overall, therefore, the mother’s explanations for the delay (whatever its length) would not of themselves justify the grant of an extension of time to appeal. At the same time however, I do not see that either the length of the delay or the mother’s attempted explanations for it, would necessarily operate as a bar to the extension of time which she seeks. The more important issue in this case is whether the mother’s appeal has any real prospects of success.
The likely success or otherwise of the issues that would be raised on the appeal
As I understood the mother’s submissions and the material which she has filed in support of this application, the essential issues which she would want to raise on the appeal are as follows:
·the fact that the Federal Magistrate would not grant an adjournment of the hearing to enable a report in the nature of a family report to be obtained;
·an alleged failure on the part of the Federal Magistrate to have regard to the mother’s claims of domestic violence (and, in this context, an issue arose concerning the evidence of a Ms LG);
·the limited amount of contact which the mother had been granted under the orders of 29 July 2004; and
·difficulties with the drafting and interpretation of those orders and their failure to make provision in relation to parental responsibility.
The refusal to grant an adjournment to enable a family report to be obtained
The situation in relation to the lack of a family report at the hearing on 27 to 28 July 2004 is set out in the letter from the mother’s solicitors to her dated 11 August 2004 (Exhibit 1). As I did not understand either the mother or the solicitor for the father to challenge the accuracy of what is said in that letter about the absence of a family or other expert psychologist’s report, I will set out the relevant passages from that letter:
As you are aware at about 4.30pm on 26 July 2004 the matter came on for mention at our request before Federal Magistrate Brewster. [Counsel] appeared on your behalf and sought an adjournment of the hearing. [Your Counsel] informed the Court that you wished to have an opportunity to obtain a report from [Dr H] who he had spoken to that day and had raised concerns about the depth of your relationship with [the child]. [Your Counsel] indicated that you also needed time to respond to the report of [Dr C].
As you know Federal Magistrate Brewster refused that adjournment application indicating that it was unsatisfactory to have litigation hanging over the heads of both of you and that the Court had set aside time to hear the matter and it should be heard.
As you know the following morning the writer again sought an adjournment of the hearing. Some of the matters relied on were:
(a)An Expert’s report should have been prepared in this matter to canvass the quality of your relationship with [the child]. The Federal Magistrate commented that this could have been requested a long time ago. In response the writer submitted that decisions had been made in part due to financial constraints which perhaps had not been the correct ones at the time and that for much of the period you were representing yourself.
(b)That you needed an opportunity to respond to [Dr C’s] report which contained some fairly damaging recommendations in relation to contact and further that [Dr C’s] report had only been received on the previous Friday in the afternoon and that we had not had an appropriate opportunity to deal with that material.
(c)That there was a great deal of dispute between yourself and [the father] about dates of contact and it would assist the Court if we prepared some form of schedule.
(d)The writer was not at that stage ready to conduct a hearing but that [your Counsel] would be likely to be available in the afternoon.
Federal Magistrate Brewster then indicated to [the solicitor for the father] that [the father] would have to submit to an adjournment if he insisted on relying on the report of [Dr C]. After a brief adjournment to take instructions [the solicitor for the father] informed the Court that [the father] would proceed with the case without any reliance on [Dr C’s] report except to the extent that it showed that [the father] was attending upon [Dr C] for advice from time to time. In light of that concession by [the solicitor for the father] Federal Magistrate Brewster confirmed the matter would commence hearing at 2.15pm.
It is my understanding that the report of Dr C had been obtained by the father.
While it is, in my view, generally of great assistance to a Court in the determination of residence and contact cases, to have the benefit of a report by an independent expert in relation to such matters as the subject child’s attachments, it is certainly not essential that the Court have such a report available to it before making its determination. In deciding whether such a report should be available and, importantly, whether an adjournment should be granted to enable such a report to be prepared, the Court will have to balance a number of matters including the availability of hearing dates and the need which may exist to bring to an end litigation in a particular case.
In the present case, his Honour set out in some detail in his paragraphs 3 to 8 of his judgment the history of the litigation between the mother and the father, and when considering the question of “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”, he said (paragraph 30):
30.… This is a factor in this case. There have been too many applications and too many court appearances in this matter. This is not in [the child’s] best interests. I have endeavoured to make orders that will cover all contingencies and eliminate the need for further litigation.
It is thus clear that his Honour considered that there was a need to try to bring to an end the litigation in this case. Further, as the solicitor for the father pointed out in her submissions before me, comprehensive directions had been made by his Honour for the preparation and filing of material for the trial as early as 19 January 2004. Both parties were represented by their solicitors at that directions hearing. That was the time for an application for a family report to have been made. But even if the application had not been made then, there remained another six months before the trial during which time the application could have been made. Therefore, in my view, any challenge on appeal to his Honour’s decision not to grant the adjournment to enable the family report to be prepared would have very little chance of success.
The mother also expressed some concerns before me that his Honour would have read the report of Dr C and that that report might therefore have influenced his decision. However, as I endeavoured to explain to the mother when she was before me, Judges and Magistrates often have to read material which a party wishes to put into evidence only then later to have to rule that the party cannot rely on that evidence. In such circumstances it is accepted that the Judge or Magistrate will not have had regard to the rejected material (unless of course it is referred to in his or her reasons for judgment).
Subsequent to the delivery of his Honour’s judgment, the mother obtained a report from a psychologist, Dr H. The report was directed to the mother’s relationship with the child, with Dr H concluding that she could “see no reason why [the mother] could not have increased access to her daughter.” The mother apparently hopes that she could rely on this report at the hearing of the appeal.
In order to rely on Dr H’s report at the hearing of the appeal, the mother would have to persuade the appeal court to receive Dr H’s report as further evidence. In my opinion, it would be most unlikely that an appeal court would be prepared to accept as further evidence the report of Dr H given its contents and recommendations, and given that it was prepared so soon after Brewster FM’s decision. The existence of Dr H’s report would certainly not be a reason for granting the mother an extension of time to appeal.
The domestic violence issue
In his reasons for judgment at paragraph 28, Brewster FM said:
28.Paragraph (g) addresses issues of violence. Paragraph (i) does likewise and paragraph (j) requires me to consider any family violence order applying to the child or a member of the child's family. The mother has applied for family violence orders. However allegations of violence were not pursued at the hearing and these paragraphs are therefore not relevant to my decision.
In paragraph 14 of her affidavit (filed 16 July 2004), which was relied on before his Honour, the mother stated:
14.On 2 May 2003 an Application was made on my behalf by the … Police out of the … Local Court. At about the time of signing the orders in August 2003 I consented to the withdrawal and dismissal of proceedings. I had sought and obtained another AVO against [the father] out of the Canberra Magistrates Court. I consented to the withdrawal of this AVO also (as part of the agreement entered into on 7 August 2003).
Against the background of that evidence from the mother, it would seem that his Honour’s conclusion in paragraph 28 was open to him.
However, the mother sought to persuade me that it was the detailed description of various incidents between herself and the father which are set out in paragraph 15 of her affidavit, which should have been taken into account by his Honour. I do not know to what extent, if any, the mother’s Counsel relied on this material at trial.
However, and again as I explained to the mother, I have difficulty in seeing how, even if the material in paragraph 15 had been pressed at trial and if his Honour had accepted in its entirety the mother’s version of events as contained in that paragraph, his ultimate decision in favour of the child residing with the father would have been different. I say this because the reasons why his Honour made that decision as they are to be found in his judgment are as follows:
19.… Since the change in residential arrangements in August last year the status quo has been somewhat variable but I accept that for most of the time the child has lived with the father. In this respect I accept his evidence as set out in paragraph 34 of his affidavit filed on 21 July 2004. This paragraph states that from October 2003 until June 2004 [the child] was with him for 211 nights and with the mother for 63 nights.
…
23.I have no reservations about the capacity of each parent adequately to provide for [the child’s] intellectual needs. I have no reservations as to the father's capacity to provide for [the child’s] other needs. I do, however, have some reservation about the mother's capacity to do so.
24.The mother suffers from an obsessive compulsive disorder and depression. She takes medication for this. Her compulsive disorder sometimes manifests itself in impulsive actions which are not always consistent with proper parenting of [the child]. An example of this is found in the evidence of [Ms LG] who shared a house with the mother for a few weeks in July 2003. I quote from paragraphs 3 to 9 of [Ms LG’s] affidavit where she says:
3.On Sunday night, 13 July 2003 [the mother] called me on my mother's phone. I was not at home. She said to me words to the effect of, "Would you babysit [the child]?". This was approximately 7.15pm. I said to her, "I will be home in 30 minutes."
4.Minutes later [the mother] called me again and said, "[The child] is asleep and I am leaving now". I said to her, "Don’t do that, you must wait until I get there." She replied, 'I will."
5.When I arrived home [the mother] was gone and [the child] was in bed asleep. There was no-one else in the house.
6.On Monday night, 14 July 2003, I arrived home from work. [The mother] arrived soon after and said to me words to the effect of, "I will be putting [the child] to bed and going out for dinner". She assumed that I will look after [the child] but did not specifically ask me to do so.
7.[The child] woke up screaming at 11.15pm. [The mother] was not home. I rang her mobile phone and left a message to the effect of, "[The child] is very upset, please come home now". My call was not returned. I settled [the child].
8.I was aware that on a few other occasions during the course of the night [the child] was crying. I woke up at 6.30am. [The mother] was still not home. I rang her mobile phone again but there was no answer. She did not contact me.
9.At 7.10am I rang [the father] as I needed to leave for work by 7.45am and had not heard from [the mother]. [The father] arrived about 7.30am. [The father] was leaving with [the child] at about 7.45am when [the mother] arrived home at the same time.
25.Another illustration of the mother’s impulsive nature was when she decided to leave [the Central Coast] late at night to drive to Canberra to see [the child]. She left without telling her partner. The first that [the mother’s partner] knew of this was when he woke up in the morning to find that she was not there. She sought to, and in fact did, exercise contact with [the child] notwithstanding the fact that she had driven throughout the night.
26.I accept the father's evidence that on a number of occasions he has had to collect [the child] from childcare whilst [the child] was in the care of her mother because the mother had not made any arrangements for collecting her.
…
32.I do not believe it is appropriate to make an order for shared residence essentially for three reasons. These are:
(a)I do not believe that the parties can achieve a degree of cooperation or communication sufficient to maintain an adequate shared regime. This situation is exacerbated by the mother's rather erratic personality. For a shared arrangement to work to an optimum degree parents need a degree of compatibility and an ability to achieve a reasonable degree of cooperation and communication.
(b)I have concerns as to the capacity of the mother adequately to care for [the child]. My comments on paragraph (e) above are apposite in this respect.
(c)In my opinion a longstanding status quo should not be changed unless there are sufficient reasons for doing so. In this case there are no sufficient reasons.
33.In my opinion the appropriate order is that [the child] live with her father and I have made orders accordingly. …
Against the background of the matters referred to in the above-quoted paragraphs from his Honour’s judgment, I consider it unlikely that an appeal court would conclude that his Honour’s discretion had miscarried on the ground that he had not decided on the basis of the material contained in paragraph 15 of the mother’s affidavit, that the child should live with the mother.
It is convenient in this context to refer to the mother’s complaint that his Honour should not have accepted the evidence of Ms LG for the reason that she was, or had been, an employee of the father. It appears that the mother’s Counsel did not require Ms LG for cross-examination, and in those circumstances, it would be extremely difficult for the mother to persuade an appeal court that his Honour should not have accepted the evidence of Ms LG or given the evidence the weight which he did.
The amount of contact awarded to the mother
I understand that the mother would also want to argue on appeal that Brewster FM erred in not giving her a greater amount of contact with the child.
In his reasons for judgment his Honour gave careful consideration to the amount of contact which there should be between the mother and child as the following paragraphs from his judgment show:
34.If the mother lives in Canberra I have ordered that she have contact from the conclusion of childcare, pre-school or school on each alternate Friday until the commencement of childcare, pre-school or school the following Monday or Tuesday if a long weekend.
35.Whilst [the child] is of preschool age I believe that there should be more frequent contact than simply each alternate weekend. I therefore made an order for contact on the Monday through to the Tuesday in the week preceding weekend contact. The father would have me make an order for contact from the conclusion of childcare on Monday until the commencement of childcare on Tuesday. He believes that [the child] should attend childcare rather than be cared for by the mother. His reasons essentially concern routine and stability. At the moment the mother does not work and would be available to care for [the child] during the day. Whilst I respect the father’s views and I understand the reasons for them I believe that the benefits that could be obtained from the more extended contact with the mother which she is presently able to provide justify extending that contact from 9am Monday to 5pm Tuesday and I made orders accordingly.
36.As I have indicated, the father proposes two block periods of contact a year of seven days until [the child] attends school. I do not believe this is sufficient. I therefore ordered additional block contact. For convenience I made this coincide with the school holidays so that a pattern will be established that can continue when [the child] starts school. I ordered that this contact be for seven nights and eight days in the midyear holidays and for the same period in the Christmas holidays in 2004 and 2005. I increased the level of contact in the subsequent Christmas holidays until [the child] attends school. Once [the child] starts school contact will be for half of all school holidays alternating between the first and second half each year. Weekend contact and Monday contact is to be suspended during midyear school holidays and also for periods during the Christmas school holidays equivalent to the periods of contact.
37.If the mother moves from Canberra the orders for Monday contact and regular weekend contact will be discharged. However if she is able to travel to Canberra from time to time at weekends I see no reason why contact should not occur on such occasions. I have therefore made provision for such contact but for adequate notice to be given to the father so that he can plan his life accordingly.
Decisions as to the exact amount of contact and also the precise details of the contact arrangements in any particular case are decisions which are very much within the discretion of the trial Judge or Federal Magistrate who determines the case. Accordingly, they are decisions with which an appeal court would be very reluctant to interfere. This, in my opinion, would be particularly so in this case, given the careful consideration which his Honour gave to these matters in paragraphs 34 to 37 of his judgment.
The drafting and interpretation of the contact orders
It was, however, common ground between the mother and the father’s solicitors that there was an error in the drafting of order 3(a) in that it should have been made clear that the contact there provided was to occur each alternate weekend. That matter would most appropriately be dealt with by a “slip rule” application to Brewster FM rather than by putting the parties to the expense of an appeal. Indeed, I understood that the solicitor for the husband has been endeavouring to obtain such an amendment.
I also understood from the mother that some controversy may have arisen between the parties as to the meaning of the expression “mid year school holiday period” in order 3(c), and also as to whether that expression covered the Christmas (i.e. December to January) holidays. What was intended by his Honour seems clear from paragraph 36 of his judgment. Again, if either party considers the orders as drafted do not reflect that intention, a slip rule application is the appropriate course.
The mother also expressed concerns about order 4 which provides for the contact arrangements in the event that the mother leaves Canberra. The mother is concerned that the orders will have the effect that she will have to negotiate with the father and she apparently considers that this would be a very difficult exercise. As I understand the situation, the mother is still living in Canberra, and thus the order in question is not yet operating.
In my view, there would be little purpose in seeking to re-draw the order in more precise terms until such time as the mother leaves, or is about to leave, Canberra. At that time if the existing order proves, or is likely to prove, to be unworkable the mother would, in my view, be entitled to make a further application at first instance. I understood the solicitor for the father to accept that this would be the appropriate course.
Finally, in relation to the orders of the Federal Magistrate overall, I understood the mother to complain that they failed to make provision for any division in parental responsibility and I further understood the mother to feel disadvantaged on this account.
The mother, and indeed also the father, should understand that where no order has been made to the contrary, s 61C of the Family Law Act 1975 (“the Act”) continues to confer parental responsibility for the child on both parents.
Conclusion in relation to the likely success of the appeal
It is not always easy in determining an application such as the present to determine the likely prospects of success or otherwise of the proposed appeal. However, in this case I have been able to consider in some depth the complaints which the mother would want to raise on her appeal and I have been able to conclude that an appeal by the mother is most unlikely to succeed for the reasons which I have given.
Prejudice to the father
Notwithstanding what the mother told me in relation to the sale of a car, I accept the submission of the father’s solicitor that, given the evidence which emerged during the hearing before me about the mother’s financial circumstances, it is unlikely that the father could be adequately compensated by a costs order for the expense he would incur in defending an appeal. However, this is not a matter on which I place great weight.
Conclusion
Rather, in my view, the most significant matter in this case is the lack of any real prospect of success for the mother in her proposed appeal. When that matter is taken into account together with my conclusions concerning the somewhat inadequate (at least from a legal point of view) explanations by the mother for her delay in seeking to file a notice of appeal, I am not persuaded that the interests of justice, nor indeed the interests of the child in this case, would be served by permitting the mother an extension of time in which to file her appeal.
To the extent that there might be some unsatisfactory aspects with the terms of the orders as drafted, or with their prospective operation, those matters would be more appropriately addressed either in the context of a slip rule application in the case of defects in the drafting of the orders, or a future application at first instance in the case of future changes in the parties’ living arrangements.
Order
That the mother’s application filed 1 December 2004 for an extension of time in which to appeal the order of Federal Magistrate Brewster of 28 July 2004 be dismissed.
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