Mallows & Harrod
[2022] FedCFamC1A 92
•17 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mallows & Harrod [2022] FedCFamC1A 92
Appeal from: Mallows & Harrod [2022] FedCFamC2F 36 Appeal number(s): NAA 30 of 2022 File number(s): LEC 92 of 2018 Judgment of: ALDRIDGE J Date of judgment: 17 June 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father seeks an extension of time to file a Notice of Cross-Appeal and to remove the Independent Children’s Lawyer from the proceedings and have another appointed – Where the proposed grounds of appeal do not indicate that the proposed cross-appeal has reasonable prospects of succeeding – Not in the interests of justice for the application for the extension of time to file the Notice of Cross-Appeal – Where the evidence falls short of establishing that the Independent Children’s Lawyer has behaved in such a way to require replacement –
Application dismissed.Legislation: Family Law Act 1975 (Cth) s 60CC(2), 65LA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.07(2), 15.06
Cases cited: Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Number of paragraphs: 51 Date of hearing: 10 June 2022 Place: Brisbane (via video link) Solicitor for the Applicant, the Second Respondent and the Intervener: G J Donaghy & Company Solicitors Solicitor for the First Respondent: Guy Sara & Associates Solicitor for the Independent Children’s Lawyer: Did not participate ORDERS
NAA 30 of 2022
LEC 92 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HARROD
Applicant
AND: MS MALLOWS
First RespondentMS ROBIE
Second Respondent
MS BOWDEN
Intervener
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
17 JUNE 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 6 June 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mallows & Harrod has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
By an Application in an Appeal filed on 6 June 2022, Mr Harrod (“the applicant”) seeks an extension of time in which to file a Notice of Cross-Appeal. He also seeks to remove the Independent Children’s Lawyer from the proceedings and have another appointed. The applications are made notwithstanding that the appeal itself is fixed for hearing on 21 June 2022.
The proceedings concerned the two children of the applicant, who were born in 2014 and 2015. Neither the applicant nor their mother, Ms Robie, played any active role in the hearing, although they were both present for at least some of the proceedings. Neither of them propounded any orders to the Court for consideration. Rather, the proceedings were actively between Ms Mallows (the paternal aunt and the appellant in the appeal) and Ms Bowden (the maternal grandmother).
The children have been in the care of the paternal aunt since January 2018. At the hearing, she sought orders that the children continue to live with her and spend time with the maternal grandmother one weekend each school term and for the first week of the short school holidays and for three weeks of the Christmas holidays. Orders largely along those lines were made, although the children were to spend two weekends per term with the maternal grandmother.
The paternal aunt also sought orders enabling her to move the children from Town B in New South Wales to Town A in Queensland. That application was refused and the children were required to live in New South Wales and no more than three hours from Town C, except with the written consent of the maternal grandmother.
The maternal grandmother, and the parents for that matter, live in or near Town C.
The orders as to whether the children should live, at Town A or in New South Wales, are the subject matter of the appeal in which the paternal aunt is the appellant.
In the proceedings, the maternal grandmother sought orders for the children to live with her and then quickly progress so that within nine months the children were spending two nights a fortnight in the sole care of the mother or the applicant. As indicated, the maternal grandmother’s contentions were not accepted.
The primary judge’s orders were made on 24 January 2022 and a Notice of Appeal was filed by the paternal aunt on 21 February 2022. No cross-appeal was filed.
Rule 13.07(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requires a Notice of Appeal for a cross-appeal to be filed within the later of 14 days after the Notice of Appeal was served on the cross-appellant or 28 days after the date the order appealed from was made.
It is the applicant’s evidence that he has never been served with the Notice of Appeal, but it is plain that a lawyer instructed by him appeared before the appeal registrar on 5 April 2022 when directions were made preparing the appeal for hearing. I infer from this that either the applicant or his then solicitor had been served with a copy of the Notice of Appeal or had it in their possession. Therefore, at the latest, a Notice of Appeal raising the cross-appeal should have been filed by 19 April 2022. The application is therefore for an extension of time under r 15.06 of the Rules.
The principles that apply to such an application were set out by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480–481 where he said:
… 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The aim is overall to attempt to do justice between the parties.
A procedural hearing was conducted before the appeal registrar on 5 April 2022. On that day, all the parties appeared, including the applicant who appeared via his solicitor. The Independent Children’s Lawyer did not appear, having filed a Submitting Notice. Directions were made for the preparation of the appeal. The paternal aunt, who is the appellant, was to file her Summary of Argument on or before 13 May 2022 with the parents and the maternal grandmother to file their Summaries of Argument by 3 June 2022. No issue as to a cross-appeal was raised at that hearing by either the applicant or the maternal grandmother.
Subsequently, the appeal was fixed for hearing on 21 June 2022.
The timetable was not complied with and the paternal aunt’s submissions were only filed on 24 May 2022. Those submissions of the maternal grandmother and the parents are still yet to be filed – their solicitors have apparently taken the view that whatever the orders of the appeal registrar may be, they had 14 days from when they received the paternal aunt’s submissions and did not seek an extension of time from the appeal registrar. That is not the correct way to proceed.
The applicant said that sometime prior to 5 April 2022, he became aware that the paternal aunt had appealed. He added that he spoke to a number of solicitors from Legal Aid and in private practice who had all told him that there was no point in appealing the decision. The applicant said that he did not understand this advice, but instructed a solicitor to appear on 5 April 2022 nonetheless.
The applicant said that as he was unhappy with what occurred on 5 April 2022, he then spoke to the solicitor who was acting for the maternal grandmother who apparently advised him that he had a strong case for an appeal. The applicant says that his solicitor lost the relevant files and computer equipment during floods in New South Wales in February/March 2022 which hampered his ability, but nonetheless a Notice of Cross-Appeal was ultimately prepared and the solicitor attempted to file it with the appeal registry on 4 May 2022. There is no explanation as to why it was only on 6 June 2022 the present application was filed.
The solicitor acting for the applicant, who also acts for the mother and the maternal grandmother in the appeal, informed me from the bar table that there were technical difficulties in the filing of the application, which accounted for the delay. They are not identified in the evidence.
The above demonstrates that the applicant sought advice as to the prospects of appealing the decision and acted on that advice, although he did have a solicitor appear for him at the procedural hearing. When he did change his mind, there is nothing to suggest that the other parties or the Court were informed of the prospective cross-appeal.
THE PROPOSED CROSS-APPEAL
The proposed Notice of Cross-Appeal, in addition to seeking that the orders of the primary judge be set aside, seeks orders that the children live with the maternal grandmother who is to have sole parental responsibility for them and spend time with the applicant. The time proposed in the Notice of Cross-Appeal is an entirely different arrangement to that proposed by the maternal grandmother at the hearing. Thus, if the leave sought by the applicant is granted, the rather odd circumstance would come about where the maternal grandmother, who failed to get the orders for which she contended, is not appealing, but the applicant who is seeking orders more expansive then those sought by the maternal grandmother at hearing but advanced no proposal of his own, is appealing. It needs hardly be said that a trial judge cannot be found to have erred by not making orders that were sought at the hearing that were outside the range of the orders that were in fact proposed.
The applicant says that at the hearing he supported the orders sought by the maternal grandmother.
The proposed Notice of Cross-Appeal raises six grounds of appeal. It is necessary to consider, at least briefly, the prospects of success of those grounds noting of course, that at present the Court has only very limited material available with which to assess their merits.
Proposed Ground 1 - “The honourable court erred as a matter of law by failing to consider, or to properly consider the impact upon the children of continuing to reside with the paternal aunt”.
The primary judge said:
92.In the absence of adequate evidence as to the impact on the children of any changes in their residence, I make the following findings based on the evidence:
(a) The children are unlikely to have much memory of their time living with the mother and the [applicant].
(b) The children will have limited memory of their week about time with the maternal grandmother and mother.
(c) The children have never lived primarily with the maternal grandmother.
(d) For over half their lives the children have lived in a stable and safe environment with the paternal aunt who has primarily cared for the children.
(e) The children’s involvement with the maternal family since living with the paternal aunt has been limited to day time periods only.
(f) Leaving the children in the primary care of the paternal aunt will result in no negative impact on the children as their routine will not be disrupted.
(g) A change of residence to the maternal grandmother will negatively impact the children as their stability and routine will be upended and their main role model will be removed from their life.
(h) Any stability and routine then established for the children with the maternal grandmother will again be upended upon the children being transitioned to live with the mother and where later the children may live in a shared care arrangement with the [applicant].
(i) This will result in further upheaval for the children which on the balance of probabilities will result in a negative impact on the children both psychologically and emotionally.
(j) The negative impacts on the children are likely to outweigh any positive impacts the children may experience by changing their residence to live with the maternal grandmother or the mother.
…
95.Although the maternal grandmother during the final hearing raised the issue of capacity of the paternal aunt to meet the needs of the children, the maternal grandmother failed to provide any written submissions that address capacity.
As clearly, the primary judge considered the above factors and took them into account, I do not quite understand what is meant by the phrase “failure to consider, or to properly consider” given the extensive nature of the findings. However, if it is intended to refer to the question of weight to be given to those considerations, that is a difficult ground of appeal to establish (Norbis v Norbis (1986) 161 CLR 513).
Significantly for the issues that seem to be raised on appeal, as is apparent from the submissions of the applicant on this application, is the right of the children to enjoy their Aboriginal heritage and culture. The paternal aunt is not of Aboriginal descent. The primary judge, after some extensive discussion, said:
140.In summary as to this consideration of the right of the children to enjoy their Aboriginal culture I make the following findings:
(a) The children have not through their Aboriginal side of the family been extensively involved in their aboriginal culture.
(b) The paternal aunt has ensured that the children are aware of their Aboriginal culture and heritage since the children have been in her care.
(c) This consideration does not give rise to a change of residence for the children.
(d) The maternal grandmother intends to ensure that the children enjoy their Aboriginal culture moving forward.
(e) This enjoyment of the Aboriginal culture can be achieved with the children remaining in the care of the paternal aunt provided the children spend regular time with the maternal family including weekends and extended holiday time.
141.I therefore find that provided there are appropriate orders as to the children’s time with the maternal grandmother, then this consideration does not support an order for a change of residence for the children.
…
147.I find that in the absence of specific evidence as to the kinship and child rearing practices of the … culture then this is not a factor that will assist the court in determining the parenting arrangements for the children and therefore is not a factor that supports a change of residence for the children.
It therefore seems tolerably clear that the primary judge gave significant consideration to these matters, albeit the outcome of that consideration was not as the maternal grandmother contended, or the applicant would now contend. It is difficult to see this ground succeeding.
Proposed Ground 2 – “The court failed to properly consider the right of the children to enjoy their Aboriginal cultural heritage by failing to
a.Give sufficient weight to the Family Report writer’s opinion that the paternal aunt would not properly enable the children to enjoy their Aboriginal cultural heritage;
b.Give sufficient weight, to the fact that the children would be living off country when living with the paternal aunt;
c.By failing to give proper weight to ss60B(2)(c), Section B(3) of the Family Law Act 1975;
d.By failing to give proper weight to the kinship obligations and the child rearing practices of the children’s Aboriginal culture;
e.By failing to consider the non-Aboriginality of the paternal aunt and the impact upon the parents of the Aboriginal parenting of the children”.
As to proposed Ground 2(a), that has already been dealt with in the discussion of proposed Ground 1.
The other matters are all allegations that different weight should have been given to particular factors than that given to them by the primary judge. In House v The King (1936) 55 CLR 499 at 504–505, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
As can be seen from that passage, there is no separate challenge to an exercise of a discretionary judgment on the basis that inappropriate weight was given to particular considerations. Rather, it seems to me that the question of weight must be seen through the prism of whether the decision was unreasonable or plainly wrong. Having regard to her Honour’s reasons, I consider that this will be a difficult ground to establish.
Proposed Ground 3 – “The Honourable Court erred as a matter of law when considering, or failing to properly consider the recommendations of the Family Report writer”.
It is well established that a primary judge is not obliged to accept the recommendations of the Family Report writer. Nonetheless, the evidence of the Family Report writer was given substantial discussion at [71]–[74], [87]–[89], [113]–[117], [121]–[124], [130]–[134] and [143]–[144].
It will be difficult to persuade an appellate court that the Family Report writer’s recommendations were not properly considered. The fact that the outcome of that consideration did not favour the maternal grandmother’s case, once again does not establish error.
Proposed Ground 4 – “The Honourable Court erred as a matter of law when it denied the parties procedural fairness by determining that section 60CC(2)(a) did not apply to the consideration of this matter when the Court did not give notice to the parties of the Courts intention of determining that issue in that matter”.
It is plain from the terms of s 60CC(2)(a) of the Family Law Act 1975 (Cth) (“the Act”) that it does not apply to the paternal aunt or to the maternal grandmother. That is undoubtedly correct. See Finn J in Mulvany & Lane (2009) FLC 93-404 at [15] and [16] and Aldridge & Keaton (2009) FLC 93-421 at [74] and [112]. Thus the relevance and importance of considerations of whether the children should have the benefit of a meaningful relationship with their parents is less significant in this case than it would have been in a case between the parents themselves.
Nonetheless, the primary judge found that:
67.It is not disputed that the children have loving relationships with the maternal grandmother and the parents and understand the importance of these adults in their lives.
It is also of significance, that as noted in [92] (extracted above), the children are unlikely to have much memory of their time living with the mother and applicant and having spent time with them. Thus, the s 60CC(2)(a) considerations were unlikely to loom large in the determination of these proceedings.
The point however, as expressed, is that the parties were denied procedural fairness because her Honour did not give the parties notice that she would determine the matter in this way. I do not consider that as a question of lack of procedural fairness, her Honour simply applied the law and did not have to give advance notice of doing so.
Further, perhaps more importantly, there is no suggestion that at the hearing anyone raised the s 60CC(2)(a) consideration at all. Indeed the evidence before me is entirely silent on matters that might assist in determining the prospects of success of the proposed cross-appeal.
Proposed Ground 5 – “The Court erred as a matter of law by finding that the children were safe in the care of the paternal aunt”.
The primary judge found:
63.Taking into account the evidence and the submissions I find that the following considerations do not assist the court in making a determination as to the future parenting arrangements for the children for the reasons outlined:
(a) Need to protect the children (section 60CC(2)(b)):
(i) Although concerns have been raised from time to time about risk factors for the children with the paternal aunt and the maternal grandmother, I find that as at the date of the final hearing, there is no evidence to support a finding that the children are at risk living primarily with either the paternal aunt or the maternal grandmother.
(ii) As to the parents, safeguard orders have been proposed by both the paternal aunt and the maternal grandmother to ensure that risks to the children are minimised when time occurs for the children with the parents.
…
(Emphasis removed)
This was consistent with the fact that the children had been in the sole care of the paternal aunt for the last four years.
It was put to me that this finding was flawed because there was evidence before the primary judge that showed the paternal aunt had a limited licence to permitted her to drive for only 30 minutes, yet she was regularly taking the children on three hour trips (I note that these trips were for the children to spend time with the maternal grandmother and the parents). Even if that is so, that is not a substantial attack on the accuracy of the primary finding.
Proposed Ground 6 – “The Court erred as a matter of law in finding that the children having lived with the paternal aunt for three and a half years was, in and of itself sufficient grounds to make an order that the children live with the paternal aunt”.
That is not quite the finding. Her Honour said:
67.It is not disputed that the children have loving relationships with the maternal grandmother and the parents and understand the importance of these adults in their lives.
68.I find that this is a relevant consideration that must be taken into account in determining the future parenting arrangements for the children as a change of residence for the children from the paternal aunt to the maternal grandmother will result in the children being removed from their primary carer.
69.I find that this consideration on its own supports future parenting orders whereby it is in the children’s best interests to remain living with their primary carer, the paternal aunt.
I have already quoted [92] of her Honour’s reasons, which I will not do again, but at the end of those, her Honour said “[b]ased on these findings, I find that this consideration on its own supports future parenting orders whereby it is in the children’s best interests to remain living with their primary carer, the paternal aunt”. Self-evidently, the first matter raised by the ground of appeal was not the sole basis on which the orders were made, and I consider that this ground of appeal will be difficult to make out.
CONCLUSION
I consider that the grounds of appeal, while some of them may be arguable, do not indicate that the proposed cross-appeal has strong or even reasonable prospects of succeeding.
If the application is to be granted, the hearing date would have to be vacated. It was not suggested by the paternal aunt that this would cause any great cost or inconvenience (the paternal aunt has a grant of legal aid) or will necessarily involve a waste of resources.
Importantly, however, the need to allocate another hearing date will restrict other litigants in having their matters heard in due course.
In Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 the High Court said:
93.Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost‑effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected: “[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard …”.
(Footnote omitted)
There will be some considerable time before another hearing date can be fixed if the current date is vacated. The paternal aunt is entitled to have her appeal heard as promptly as the business of the court permits.
Taking all these matters into account, I am not persuaded that it is in the interests of justice for the application for the extension in which to file the Notice of Cross-Appeal be granted.
That therefore makes it unnecessary to deal with the application to replace the Independent Children’s Lawyer, however, I am not satisfied that that would be appropriate in any event. Section 68LA(2) of the Act requires an Independent Children’s Lawyer to form an independent view to what is in the best interests of the child and act in relation to the proceeding in what they believe to be in the children’s best interests. As s 68LA(5) of the Act makes clear, Independent Children’s Lawyers have a significant role to play at hearings at first instance.
Necessarily, the role of an Independent Children’s Lawyer is more constrained on appeal. It is not uncommon for Independent Children’s Lawyers to form the view that the issues before the Full Court will be sufficiently and appropriately ventilated by the other parties, so that it is not appropriate for them to further participate. The mere fact that the orders for which the Independent Children’s Lawyer contended for were not made, similarly does not require them to appear on appeal. Finally, it has to be said that the conditions of the grant of aid, or the circumstances in which the Independent Children’s Lawyer from Legal Aid acts, can also be relevant.
In summary, the evidence falls short of establishing that the Independent Children’s Lawyer has behaved in such a way as to require their replacement.
It follows that the application will be dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 17 June 2022
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