Markes & Markes
[2018] FamCAFC 222
•16 November 2018
FAMILY COURT OF AUSTRALIA
| MARKES & MARKES | [2018] FamCAFC 222 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – INADEQUACY OF REASONS – where the trial judge made a declaration that the mother had contravened parenting orders without reasonable excuse – where the trial judge provided no reasons for judgment and the transcript of proceedings was said to constitute the reasons for judgment – where the judicial act being performed was serious in nature and carried potentially very serious consequences for the mother including a term of imprisonment – where the failure to deal with, by adequate reasons, a central controversy raised for resolution itself demonstrates inadequacy of reasons and an error of law – where there is a substantial issue to be raised on appeal – where explanation for delay is a discretionary consideration but it is not determinative – application allowed – no order as to costs. |
| Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 94AAA(5), 117(1) Federal Circuit Court of Australia Act 1999 (Cth) s 16 Family Law Rules 2004 (Cth) rr 1.14, 22.03 |
| Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 |
| APPLICANT: | Ms Markes |
| RESPONDENT: | Mr Markes | ||||
| FILE NUMBER: | MLC | 9396 | of | 2009 | |
| APPEAL NUMBER: | SOA | 64 | of | 2018 |
| DATE DELIVERED: | 16 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 12 November 2018 and written submissions received 13 November 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms B. Tulloch |
| SOLICITOR FOR THE APPLICANT: | Rigoli Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr R. Smith |
| SOLICITOR FOR THE RESPONDENT: | Matthew Oldham Barrister & Solicitor |
Orders
The time for filing a Notice of Appeal from the declaration and orders made by Judge Kelly in the Federal Circuit Court of Australia on 1 March 2018 be extended up to and including 23 November 2018.
There be no order as to costs of the applicant mother’s Application in an Appeal filed 11 September 2018.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Markes & Markes 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 MELBOURNE |
Appeal Number: SOA 64 of 2018
File Number: MLC 9396 of 2009
| MS MARKES |
Applicant
And
| MR MARKES |
Respondent
REASONS FOR JUDGMENT
On 1 February 2018, Mr Markes (“the father”) filed a Contravention Application[1] alleging that Ms Markes (“the mother”) had contravened parenting orders made on 30 September 2013 concerning the parties’ children Y born in 2005 and X born in 2008.
[1] Pursuant to the provisions of the Family Law Act 1975 (Cth) (“the Act”).
Whilst the mother acknowledged that she had “contravened an order” within the meaning of s 70NAC of the Act, the mother contended that she had a “reasonable excuse for contravening an order” within the meaning of s 70NAE. The mother’s defence of reasonable excuse was founded upon the contention, in summary, that she was acting on her belief on reasonable grounds that her non-compliance with the parenting orders was necessary to protect the health of her children. Thus the central issue joined between the parties for determination by the trial judge was whether or not the mother established “reasonable excuse” within the meaning of s 70NAE.
On 1 March 2018 Judge Kelly in the Federal Circuit Court of Australia determined the contravention application save and except for the question of penalty. The trial judge made a declaration in the following terms:
THE COURT DECLARES THAT:
1. The respondent mother contravened orders made by Judge Hughes on 30 September 2013 as alleged in each of paragraphs 6 to 39 of the contravention application filed 1 February 2018 by failing, without reasonable excuse, to make available for contact or deliver the children [Y] born … 2005 and [X] born … 2008 to the husband’s residence.
I interpolate here that on the hearing of this application the Court invited further submissions as to whether or not the trial judge had power to make the declaration in the terms in which it was made on 1 March 2018, as distinct from recording a finding. Those further submissions were provided on 13 November 2018. In summary, I am satisfied that s 16 of the Federal Circuit Court of Australia Act 1999 (Cth) provides power for a judge of the Federal Circuit Court to make a declaration, whether or not any consequential relief is or could be claimed.
By Application in an Appeal filed on 11 September 2018, the mother applies for an extension of time to file an appeal from the declaration made by the trial judge and a consequential costs order. The application is opposed by the father.
Applicable principles
The grant of an extension of time under r 1.14 of the Family Law Rules 2004 (Cth) (“the Rules”) is not automatic.[2] McHugh J said in Gallo “[t]he discretion to extend time is given for the sole purpose of enabling the court … to do justice between the parties”.
[2]Gallo v Dawson (1990) 93 ALR 479, 480 (“Gallo”).
Recently, in Harrison & Ward,[3] Murphy J by reference to relevant authorities summarised the relevant considerations to take into account when determining an application to extend time to appeal at [30] as follows:
·Is there an adequate explanation of the delay?
·Do the proposed grounds have some merit?
·The prejudice to the respondent; whether any prejudice can be compensated by an order for costs and any consequences otherwise for the parties;
·The conduct of the parties; and
·The nature of the order appealed.
[3][2018] FamCAFC 136.
Background to the proceedings
Final parenting orders were made by consent on 30 September 2013. Those orders provided, inter alia, for:
a)the parents to have equal shared parental responsibility;
b)the children to live with the mother;
c)the children to spend time with the father:
i)during the school term – each alternate weekend from 6:00 pm Friday to 5:00 pm Sunday plus two hours each Thursday evening;
ii)during school holidays – for one week subject to the father giving the mother at least 30 days’ notice that he intends to spend time with the children; and
iii)special days – including Christmas, Easter, Father’s Day, the children’s birthdays and the father’s birthday.
Following those orders being made, the father has filed three Contravention Applications on 28 February 2014, 16 March 2016 and the subject application on 1 February 2018. On each occasion the mother has been found to have contravened the orders made on 30 September 2013 without reasonable excuse.
On the first occasion, the mother consented to make up time being ordered and that she would pay the father’s costs fixed in the sum of $3,000 and complete a post separation parenting course (see Orders made 8 April 2014).
On the second occasion, the mother was ordered to pay the father’s costs fixed in the sum of $4,000 and enter into a good behaviour bond for one year.
The proceedings before Judge Kelly
As noted, on 1 February 2018, the father filed a third Contravention Application. On 28 February 2018 Judge Kelly listed the hearing of the Contravention Application to the following day, being 1 March 2018, and also ordered that the parties and youngest child, X, present for a s 11F interview on 1 March 2018 prior to the hearing. The eldest child, Y, was not able to be present as she was at a school camp.
On 1 March 2018, the hearing commenced with a preliminary oral report from the family consultant who interviewed X and the parents earlier that morning. The family consultant recommended, on an interim basis, that the children’s time with the father pursuant to the orders made 30 September 2013 be reinstated. She also foreshadowed possible recommendations for family therapy, counselling for the children and a psychological/ psychiatric assessment of the mother, however expressed the view that it was preferable that the family consultant have the opportunity to interview Y before making those recommendations. Y’s interview was scheduled for 13 March 2018 following which a written s 11F report was to be published.
Following the family consultant’s oral evidence, the mother sought that the matter be adjourned until after Y was interviewed and the s 11F report was published. The father sought for the contravention to be determined immediately and for any penalty to be considered after the s 11F report was published. The trial judge ultimately acceded to the father’s proposal and determined the application after counsel for the mother was afforded the opportunity to make submissions as to reasonable excuse.[4] The trial judge did not deliver reasons for judgment – the transcript of 1 March 2018 is said to constitute the reasons for judgment. The question of the penalty to be imposed was adjourned until 2 May 2018 to allow time for Y to be interviewed and the s 11F report published.
[4] Transcript, 1 March 2018, p 9 ln 39 to p 12 ln 1.
On 2 May 2018 the parties consented to orders varying the final parenting orders made 30 September 2013. The consent orders provided for the children to spend time with the father from 6:00 pm Friday to 5:00 pm Sunday for the first two out of three weekends and varied the children’s time with the father over Christmas. The parties agreed to an order that the children commence attendance upon an agreed counsellor for the purpose of therapeutic, non-reportable counselling, the costs of which were to be met equally by the parents. The mother also consented to being psychiatrically assessed as recommended in the s 11F report published on 15 March 2018. Determination of the penalty to be imposed for the mother’s breach was adjourned to 14 September 2018.
The mother filed the current Application in an Appeal on 11 September 2018 seeking an extension of time to appeal Judge Kelly’s declaration made on 1 March 2018 that the mother has contravened the orders of 30 September 2013 without reasonable excuse. The mother was more than five months out of time to file a Notice of Appeal (which ought to have been filed by 29 March 2018).
Order 1 made 1 March 2018 (the contravention declaration) was stayed by Judge Kelly on 14 September 2018 pending the outcome of the mother’s Application in an Appeal. No penalty has yet been imposed. On 2 May 2018, counsel for the father indicated that the penalty sought by the father is for a suspended term of imprisonment.
Grounds of appeal
The mother’s draft Notice of Appeal seeks leave to appeal and sets out five grounds of appeal.
Those grounds are as follows:
1.The learned judge erred as a matter of law by failing to give reasons and/or adequate reasons.
2. The learned judge erred as a matter of law by failing to follow the procedure outlined in Part 25B.04 of the Federal Circuit Court Rules 2001.
3.The learned judge erred as a matter of law by failing to afford procedural fairness in his refusal to grant the appellant’s request that the Section 11F Report be completed prior to his determining whether the appellant had contravened the relevant orders without reasonable excuse.
4. The learned judge erred as a matter of law by failing to give consideration to the appropriate standard of proof to be applied, when the issue of a term of imprisonment for the appellant was raised by him at the outset of the proceedings.
5. The learned judge pre-judged the issue in dispute as his remarks prior to the hearing of the matter suggest that he had already determined:
a. That the appellant had contravened the relevant orders without reasonable excuse; and
b. The contravention would be dealt with under the provisions of Subdivision F of Division 13A of the Family Law Act 1975.
I note that by her draft Notice of Appeal, the mother seeks an order that this Court set aside the orders made by Judge Kelly on 1 March 2018 and the orders made by Judge Kelly on 2 May 2018 which are not the subject of this appeal and were largely made by consent save for an order relating to January school holiday time (Order 9).
Leave to appeal
In her draft Notice of Appeal the mother seeks leave to appeal Orders 1 (the contravention declaration) and 7 (the costs order) of the orders made 1 March 2018.
The authorities are unclear as to whether leave to appeal is required in relation to orders regarding the contravention of parenting orders.
In Kovacs & Graham[5] Thackray J (with whom May and Forrest JJ agreed) made the following observation in respect of an application for leave to appeal against an order adjourning a contravention hearing:
26.The father’s Notice of Appeal and Summary of Argument were both drafted on the basis that leave to appeal was required, given that Kent J’s order was interlocutory. However, I am not convinced that leave is needed, since it is at least arguable that the order was “in relation to a child welfare matter” (see reg 15A of the Family Law Regulations 1984 (Cth)).
27. I therefore propose to adopt the same approach as was taken in similar circumstances in Kettle & Baker [2014] FamCAFC 85; namely, in the interests of simplicity, I would proceed on the basis that leave is not required.
(Emphasis added)
[5] [2015] FamCAFC 98.
In Kettle & Baker[6] the Full Court consisting of Finn, Strickland and Hogan JJ said:
3. There may be an argument that in order to appeal Forrest J’s order adjourning the hearing of the contravention application, the father requires leave to appeal as the order is interlocutory. However, it might also be argued that it is an interlocutory order relating to children’s issues and thus does not require leave. Given the complexities that surround the proceedings in which the father has been involved, we propose in the interests of simplicity, to proceed on the basis that leave to appeal is not required.
[6] [2014] FamCAFC 85.
However in Graft v McCormick[7] Murphy J found that leave to appeal was required to appeal from an order adjourning a contravention hearing in relation to parenting orders (at [50]). However, Murphy J said the following in relation to leave to appeal from orders dismissing a contravention application:
58. The mother has, perhaps out of caution, sought leave to appeal, however this appeal is against orders summarily dismissing four contravention applications. Counsel for the father does not make any submissions relating to leave to appeal. My inclination is that the orders are final orders. In any event, I will proceed on the assumption, favourable to her, that the mother has a right of appeal and that leave is not required.
[7] [2018] FamCAFC 49.
In circumstances where the order appealed from is a declaration that the mother has contravened parenting orders without reasonable excuse, in my judgment such a declaration is probably a final order relating to a child welfare matter, within the meaning of Division 13A of Part VII of the Act. That is, that the declaration is binding upon the parties and finally determines their rights with respect to its subject matter. As such, it is in the nature of a final order and leave to appeal from that order is not, in my opinion, required.
Of course, if the mother is given leave to file an appeal and her appeal proceeds to determination, it will be a matter for the Full Court which ultimately hears the appeal to determine whether or not leave to appeal is required. For the purposes of considering the current application, I proceed on the footing that the mother would not require leave for the reasons identified.
Do the proposed grounds of appeal have some merit?
The mother’s first proposed ground of appeal is that the trial judge provided no, or no adequate, reasons for judgment. No reasons for judgment were published – the transcript is said to constitute the reasons for judgment.
It bears emphasis that the application before Judge Kelly was obviously not some minor matter concerned with, for example, practice and procedure. It was a serious application with potentially very serious consequences for the mother – her potential imprisonment. Such consequences were obviously also potentially very serious for the children, given that they lived primarily with the mother. The trial judge’s obligation to provide reasons for judgment is obvious in this context. The need for, and adequacy of, reasons for judgment is governed by the judicial act being performed in the context of the nature of the proceedings.
In Keehan & Keehan (No. 2)[8] Murphy J (with whom Aldridge J and I agreed) said the following:
[8] [2018] FamCAFC 139.
14. Her Honour gave no formal reasons at all for making the parenting orders which she did. In U & U [[2000] FamCA 703 (unreported)], the Full Court dealt with a case in which the trial judge did not deliver formal reasons for dismissing an adjournment application. In that case, Holden and Jerrard JJ said:
10.That familiarity with the matter also extended to his Honour, and has had the unfortunate consequence that he omitted to state reasons for his refusal, other than the comments made during argument on the application. It is more than understandable that when an experienced Judge hears arguments from legal representatives who are familiar with a matter that all concerned make unstated assumptions about facts within their common knowledge and understanding.
11.Those common understandings, when not translated into brief reasons, can make it difficult for others to identify what the reasons were for making, or not making, particular orders. In the instant case, his Honour identified several matters in argument recorded over some 28 pages of transcript, and all of those were plainly relevant to the exercise of the relevant discretion.
15. Justice Finn said in the same case at [6]–[7]:
…it needs to be emphasised that the obligation to give reasons in [a matter of practice and procedure] does not require the giving of lengthy or detailed reasons.
However, some reasons are required…
16. Her Honour’s familiarity with this matter stretched over almost five years. There can be little doubt that her Honour was aware of its complexities and nuances and, crucially, the coincidence between the issues relating to this child and the now adult other child of the parties the subject of earlier proceedings and orders. Equally, the views of an apparently intelligent and apparently mature 16 and a half year old deserved very significant weight and the consideration of that relevant consideration is manifest in the transcript.
17. Yet, the mother sought to agitate other important issues. Centrally, for example, she contended that C did not have the maturity to which the father, and it would seem her Honour, accorded her. It may be that, by reference to the evidence before her and the child’s best interests, her Honour regarded that those issues – referenced to s 60CC – should receive little or no weight. In that respect, the reasons dealing with them may well have needed to be brief – indeed, very brief. However, there were no such reasons and they cannot be gleaned from the transcript.
18. This is by no means the first case in which an appeal from the Federal Circuit Court of Australia has seen no formal reasons and either an express or implied reliance upon the transcript as those reasons. Whether or not as a matter of law the transcript can stand as reasons, it is a practice – certainly in respect of a trial – which, with all respect, in my view, should cease. Whatever might be thought of the merits of a party’s case, formal reasons, however brief and suited to the proceedings at hand, are an essential part of transparent justice.
19. I am of the view, then, that the concession that the appeal should succeed is properly made and the appeal should be allowed.
(Emphasis added)
The transcript of proceedings also constituted the reasons for judgment in the matter of Matenson & Matenson.[9] In that case, Murphy J said the following:
45. In the absence of argument or reference to authority and noting the self‑representation of both parties, these reasons are not the place to express a concluded view as to whether in the particular circumstances of a particular case – including for example, the narrowness of the issues to be determined and the proximity of a trial – the transcript can be taken to be the reasons for decision.
46. I am currently inclined to the view that it is the adequacy of reasons in the particular circumstances of the case that is the central issue as distinct from the form of the reasons, with the consequence that the transcript might, in some limited circumstances, form adequate reasons. That said, I am equally of the view that such occasions should be rare – the provision of reasons for decision is central to the judicial function and the principles of transparent justice.
47. However, even if the transcript might constitute the reasons, a fundamental requirement is that reference to it in fact reveals reasons. That is, where a fair reading of the transcript reveals that the judge has, relevantly, adumbrated the relevant proposals and issues; engaged with those issues; and adequately explained – within the confines of “an abridged process” where the “enquiry is significantly curtailed” – why the orders were being made.
(Footnotes omitted)
[9] (2018) FLC 93-848.
Whilst those reasons need not be lengthy or elaborate,[10] it is necessary for a trial judge to give reasons sufficient to identify “generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues”.[11]
[10] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
[11] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259.
At the hearing on 28 February 2018 and 1 March 2018, counsel for the mother acknowledged on her behalf that the mother did, in fact, contravene the orders of 30 September 2013.[12] Therefore the contested issue to be determined was whether or not the mother had a reasonable excuse for the contravention.
[12] Transcript, 28 February 2018, p 3 ln 36 to p 4 ln 12; Transcript, 1 March 2018, p 7 ln 15 – 16.
The mother asserted that she did have a reasonable excuse, namely that she was concerned for the children’s mental health and therefore elected to cease their time with the father.
Counsel for the father asserted that the mother had drawn the Court’s attention to nothing which would support a finding that the mother had a reasonable excuse. As such, counsel for the father confirmed he would not require the mother for cross-examination.[13]
[13] Transcript, 28 February 2018, p 4 ln 36 – 41; Transcript, 1 March 2018, p 7 ln 24 – 34.
The trial judge then heard submissions from each party and determined:
a)that he would determine the contravention application on the evidence before him without waiting for the s 11F report to be published; and
b)that the mother did not have a reasonable excuse for the breach.
It is entirely unclear on the face of the transcript on what basis, or for what reasons, these determinations were made by the trial judge. That is, the transcript fails to reveal any reasoning process of the trial judge underpinning the conclusion that the defence of reasonable excuse was to be rejected.
It bears emphasis that at the very outset of the trial judge dealing with the contravention application on 28 February 2018, there were exchanges between the trial judge and the counsel then appearing for the father referring to the feature that this was the third contravention application brought by the father. As part of those exchanges, counsel for the father submitted “[t]his contravention is a very serious one in this sense…”. Also within those early exchanges the trial judge observed: “[a]nd the potential outcome for this case couldn't be more serious. We're working slowly towards jail [sic]” to which counsel responded in the affirmative.
Whilst counsel for the father indicated to the trial judge that he would not seek to cross-examine the mother on counsel’s assertion that “because I say that no reasonable excuse is made out on her affidavit” and the trial judge acknowledged “the forensic approach that you bring to the matter”, nowhere can it be seen in the transcript that the trial judge took the view (for reasons stated) that the defence was not engaged on the mother’s evidence; nor that the trial judge engaged with or determined the defence the mother sought to agitate.
That is, there is no reasoning whatsoever within the transcript which engages with the defence sought to be mounted by the mother.
In short, the failure to provide any reasons in the context of the serious nature of a contravention application constituted a clear error of law. There is ample authority for the proposition that a trial judge’s failure to deal with, by adequate reasons, a central controversy raised for resolution, itself demonstrates inadequacy of reasons and, consequently, an error of law.[14]
[14] See, for example, Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 per Allsop P (with whom McColl JA agreed) at [2]; and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA at [58] – [59].
It follows that there is a substantial issue to be raised on appeal by reference to Ground 1.
Having determined that the mother has, by her proposed Ground 1, established that she has a substantial issue to be raised on appeal, the discretionary considerations can be approached from that standpoint. That is, it is unnecessary, and potentially unhelpful to a Full Court called upon to determine an appeal if the mother is granted leave, for the balance of the mother’s proposed grounds of appeal to be analysed and discussed. Whether or not any of those other grounds can be seen to have merit cannot alter the conclusion reached and expressed with respect to Ground 1 that the mother has a substantial issue to raise on appeal.
Before moving to consider the relevant discretionary matters, an issue on this application was whether this Court ought receive and consider the completed s 11F report, completed after the determination and making of the contravention declaration on 1 March 2018. The mother opposed the report being received on the basis that it was not in evidence at the time when the declaration was made. The father sought to have this Court receive the report seemingly on the basis that its content was relevant to the question of the mother establishing reasonable excuse.
In my judgment, it is far from clear that the completed s 11F report provides an answer to the mother’s defence. That is, having read the report as the mother’s counsel conceded ought be done to determine the question, I am not persuaded that the report takes the matter any further. That is, I do not see that the content of that report is such that it, in and of itself, defeats the mother’s defence of reasonable excuse, or removes all foundation for the defence to be raised.
Is there an adequate explanation for delay?
Pursuant to s 94AAA(5) of the Act and r 22.03 of the Rules, the prescribed 28 day period for filing a Notice of Appeal in this matter expired on 29 March 2018. The onus rests upon the mother to explain her failure to file a Notice of Appeal by 29 March 2018 as well as her failure to file this application over the further period of more than five months before the mother filed this application on 11 September 2018.
In her affidavit filed in support of this application, the mother explained her delay in instituting the appeal was the result of her:
a)retaining new solicitors to act on her behalf on 28 March 2018;
b)obtaining her complete previous solicitors’ file on 16 July 2018;
c)conferring with counsel on 25 July 2018;
d)obtaining the relevant transcripts of proceedings in August 2018; and
e)instructing her new solicitors to draft and file the current application on 4 September 2018.
She provided no other evidence to support her explanation for the delay in bringing this application of more than five months.
Counsel for the mother, sensibly as it seems to me, acknowledged that there were questionable aspects concerning the mother’s explanation for delay. In my judgment the delay could not be said to be adequately explained in all the circumstances.
That noted, it is well settled that explanation for delay is a discretionary consideration but it is not determinative. That is, the fact that a delay is not wholly or adequately explained is a factor weighed in the balance rather than being determinative of the outcome.[15]
[15] As was observed by the Full Court in Tormsen and Tormsen (1993) FLC 92-392, 80,017.
Prejudice to the respondent
The delay of five months must be put into the context that the declaration has been made but penalty is yet to be determined. That is, whilst it is true that time has been running, the fact is that the question of penalty or sanction has not yet been determined and further proceedings or hearings will be necessary for that purpose. As already noted, further consent orders have been made in the interim.
In my judgment it cannot be said that prejudice or potential prejudice to the respondent of any substance arises by reason of the delay.
Conduct of the parties/nature of the order appealed
Aside from her delay in bringing this application for leave to extend time, I do not identify anything in the conduct of the mother relevant in the context of that delay.
Reference has already been made to the feature that the parents negotiated further orders for time and communication between the children and the father subsequent to the making of the contravention declaration. This is not a case where delay is accompanied by a continuing failure or frustration of parenting orders.
For the reasons already expressed, the nature of the order sought to be appealed is a highly significant matter in this case. Historically the mother has worked within the education system and as her counsel pointed out, the contravention declaration may well have the potential to affect the mother’s employability in future even if the penalty is confined to suspended, rather than actual, imprisonment.
The proposition that a party might face the imposition of a term of imprisonment, whether suspended or not, only needs to be stated for its seriousness to be obvious.
Conclusion and costs
In my judgment the mother establishes on this application that to refuse her application would constitute an injustice. Her application seeking an extension of the time prescribed for the filing of an appeal ought be granted. She ought have seven (7) days from the date of these orders to file her Notice of Appeal.
As to costs, whilst in her application the mother sought an order for costs, on the hearing of this application an order for costs against the father was not pursued. In the end result it was contended on behalf of the mother that each party should bear their own costs of this application, irrespective of its outcome.
For his part the father sought an order for costs against the mother irrespective of the outcome of the application on the basis that if the application were to be granted, the mother was receiving an indulgence. The father sought an order, if the application was successful, for costs fixed in the sum of $5,035. In the event the application was to be dismissed, the father sought costs on an indemnity basis in the fixed sum of $7,900.
The mother opposed the father’s application for costs. The mother pointed to her evidence concerning her financial circumstances set out at paragraphs 40 to 42 of her affidavit filed in support of this application on 11 September 2018. In summary, the mother contended that her financial circumstances were vastly inferior to those of the father, and there was no dispute from the father concerning that contention.
In all the circumstances, I am not persuaded that an order for costs should be made on this application such as to disturb the operation of s 117(1) of the Act providing for each party to bear their own costs of proceedings.
For these reasons I make the following orders:
(1)The time for filing a Notice of Appeal from the declaration and orders made by Judge Kelly in the Federal Circuit Court of Australia on 1 March 2018 be extended up to and including 23 November 2018.
(2)There be no order as to costs of the applicant mother’s Application in an Appeal filed 11 September 2018.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 16 November 2018.
Associate:
Date: 16 November 2018
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