Marsh and Marsh - [2016] FamCAFC 265

FAMILY COURT OF AUSTRALIA

MARSH & MARSH

[2016] FamCAFC 265

FAMILY LAW – APPEAL – application for leave to appeal out of time against interim parenting orders – where no merit or utility in the proposal appeal – application dismissed.

Family Law Act 1975 (Cth)

Gallo v Dawson (1990) 64 ALJR 458
Harris & Caladine (1990) FLC 92-130

APPLICANT:

Ms Marsh

RESPONDENT:

Mr Marsh

FILE NUMBER:

PTW

4013

2016

APPEAL NUMBER:

2016

DATE DELIVERED:

19 September 2016

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

O’Brien J

HEARING DATE:

19 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M Beckerling

SOLICITOR FOR THE APPLICANT:

Balmoral Legal

COUNSEL FOR THE RESPONDENT:

Ms C McKenzie

SOLICITOR FOR THE RESPONDENT:

McKenzie & McKenzie

Orders

The Application in an Appeal filed by the Appellant, Ms Marsh, on 25 August 2016 be and is hereby dismissed.
The Appellant contribute towards the costs of the Respondent, Mr Marsh, in the sum of $500.

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 Marsh & Marsh 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 17 of 2016
File Number: PTW 4013 of 2016

Ms Marsh

Applicant

And

Mr Marsh

Respondent

REASONS FOR JUDGMENT

The matters before the Court for determination are the application filed by Ms Marsh (“the wife”) on 25 August 2016 seeking leave to commence an appeal out of time and, should that leave be granted, her application filed on 26 August 2016 seeking a stay of the orders made by Magistrate X in Town A on 8 July 2016 pending determination of the appeal.
In support of her application for leave to commence the appeal out of time the wife relies on two affidavits of her solicitor, Mr Quartermaine-Thompson, sworn on 16 and 24 August 2016. If leave is granted and the application for a stay falls to be determined, the wife relies on her affidavit sworn on 26 August 2016 in support of that application.
Mr Marsh (“the husband”) has not filed any affidavit material in relation to either application. His solicitor forwarded written submissions by fax to the Court after the close of business on the working day immediately prior to the hearing. To the extent those written submissions contain statements of fact more appropriately contained in an affidavit and which might, in that sense, be characterised as evidence from the bar table, I have disregarded them. I have otherwise had the benefit of the written submissions filed on behalf of each party and the oral submissions of Mr Beckerling this morning.

Brief background

The parties began living together in October 2009. They were married in 2012 and separated in December 2014. They are not divorced. There are two children of the marriage; J born in 2012 and K born in 2014 (“the children”).
It is common ground that since the parties separated the children have lived primarily with the wife. At the time of separation the parties lived in Town B. After the parties separated the wife moved to Perth. The husband does not suggest that she did so other than with his consent. The husband has continued to live in Town B and the wife continues to live in Perth in Suburb E.
The husband commenced proceedings by filing a Form 1 application in the Magistrates Court in Town A on 1 June 2016. He sought final orders for equal shared parental responsibility and for the children to spend time with the parties, in his words, “as this honourable Court may deem fit”. On an interim basis he sought orders that the children be made available to him for telephone communication twice per week, that he spend unsupervised time with them for a transitionary period to re-establish his relationship with them and that, in the first instance, that unsupervised time be for two to three hours each two weeks in Town D, being an approximate midpoint between Town B and Suburb E.
The wife filed a Form 1A response in the Magistrates Court in Town A on 5 July 2016. She did not specify the final orders she sought. Rather, she sought an order in the following terms:
That the respondent wife be at liberty to particularise those final orders she seeks when and if the applicant husband is able to establish a relationship with the children.
The wife sought a variety of interim orders. Primarily, she sought that the proceedings be transferred to the Family Court of Western Australia, that the parties attend family dispute resolution and that the proceedings be adjourned generally with liberty to the parties to re-list once family dispute resolution had taken place.
For reasons which are not entirely clear, she also sought on an interim basis an order that the husband pay her costs fixed in the sum of $5,500 at a point when no hearing had taken place and the only documents filed on her behalf were that Form 1A response, a case information affidavit and a request to attend the hearing in Town A by electronic communication.
In the event that the Court was, as expressed in the orders sought by the wife, “disinclined to compel the parties to attend family dispute resolution”, the wife sought orders on an interim basis for the children to have electronic communication with the husband each Tuesday and Thursday from 6.30 pm to 6.45 pm. In that circumstance, she also sought an interim order that the children spend time with the husband, supervised by a suitably qualified supervision agency as close as reasonably practicable to Suburb E, each weekend for a period of two hours on each occasion, subject to the husband undertaking certain steps to arrange the supervision, pay for it, give her notice of his intention to spend the time with the children and organise for a report regarding his time with the children to be prepared after no less than 10 supervised periods.
The wife also sought other orders to schedule the matter to a case assessment conference on a date to be advised by the Court in 2017 and interim orders for the issue of passports and costs.
The matter proceeded to a hearing before Magistrate X in Town A on 8 July 2016. His Honour made interim orders for family dispute resolution to take place through Centrecare with the wife participating via video link or audio link. He transferred the proceedings to the Family Court of Western Australia with a request that they be listed, if possible, in the next Town A Circuit. He made orders requiring the wife to facilitate the husband spending time with the children at 3.00 pm on each of 23 July 2016, 27 August 2016, 24 September 2016 and 29 October 2016 at a specified address in Suburb F for a period of two hours on each occasion, supervised by Mr L Marsh or Ms V Marsh and with the wife being entitled to have a person of her choosing other than Mr L present.
The wife sought to file a notice of appeal on 8 August 2016. The appeal Registrar took the view that the notice of appeal had been filed out of time and returned the documents. That led to the filing of the application for leave presently before the Court.

The application for leave

In the written submissions filed on behalf of the wife it was contended that the notice of appeal was filed within time and that leave, accordingly, was not required. At the commencement of the hearing this morning her counsel conceded that, in fact, the notice of appeal was filed out of time.
Clearly, the Court has the power to extend the time for filing and can do so before or after the expiry of the time period. Again, appropriately, the wife refers in her submissions to the High Court decision in Gallo v Dawson (1990) 64 ALJR 458, 459 where the Court 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.
The wife in her submission also accurately says that in determining that issue the Court should have regard to the extent of the delay and whether there is an adequate explanation, the merits of the appeal and whether it raises a substantial issue and the relative prejudice to the parties.
The first of those factors is easily disposed of. The delay was only one working day. The appellant’s solicitor, Mr Quartermaine-Thompson, has sworn an affidavit making it clear that the delay arose as a result of his miscalculation and not as a result of any fault on the part of his client. I accept what Mr Quartermaine-Thompson says and I accept that the explanation is, insofar as it relates to the proposed appellant herself, adequate.
Where the wife runs into a more significant difficulty, however, is in the consideration of the merits of the appeal, whether it raises a substantial issue, and relative prejudice.
Pursuant to s 96(1) of the Family Law Act 1975 (Cth) (“the Act”) an appeal lies from a decree of a Court of summary jurisdiction of a state exercising jurisdiction under the Family Law Act to the Family Court of Australia, unless the Court of summary jurisdiction is constituted by a Family Law Magistrate.
Magistrate X is not a Family Law Magistrate as that term is defined in the Act.
Pursuant to s 96(4):
The Court hearing the appeal shall, subject to subsection (5), proceed by way of hearing de novo, but may receive evidence of any record of evidence given, including any affidavit filed or exhibit received, in the Court of summary jurisdiction; and may make such decrees as it considers appropriate, including a decree affirming, reversing or varying the decree the subject of the appeal.
Subsection (5) provides that:
The Court hearing an appeal may, on the application of a party or of its own motion, refer the appeal to a Full Court.
A hearing de novo involves a complete re-hearing of the matter and, in effect, is conducted as if the matter had not previously arisen for determination. As the High Court observed in Harris & Caladine (1990) FLC 92-130, the proceedings at a hearing de novo are conducted in the same way as any original proceedings of the same kind. The Court may consider any issue that arises in the proceedings at a hearing de novo regardless of whether it was raised at the original hearing and, accordingly, may consider issues which had arisen since the original hearing.
In the affidavits upon which she relies in support of the application for leave to appeal, the wife raises no such matters.
As the parties may present new evidence and raise new issues, the fact that any appeal would proceed by a hearing de novo means that the particulars of the precise proposed grounds of appeal are perhaps of less significance than would be the case if the matter was to proceed as an appeal simpliciter. Nevertheless, in reviewing the merits of the proposed appeal, a summary of the proposed grounds is informative.
Firstly, the wife contends that the learned Magistrate:
…erred in fact and/or in law and denied the mother procedural fairness in his determination of the matter by treating the matter as urgent and in determining the father’s application for time and contact with the children before a Family Dispute Resolution Conference or Case Assessment Conference in the absence of any, or any credible evidence, of urgency and in circumstances where neither party had pressed then for orders in those terms. (errors appear as in original)
Leaving aside the fact that the drafter of the notice of appeal has chosen not to try and identify whether the error alleged is one of law, fact or absence of procedural fairness, that ground rather overlooks the fact that in her Form 1A response filed prior to the hearing the wife proposed orders which expressly contemplated the possibility of the learned Magistrate declining to adopt her primary position that the proceedings should be adjourned generally until family dispute resolution had taken place. It is difficult to understand the proposition that the mother was denied procedural fairness when the Magistrate had before him her specific proposals as to what orders should be made should he not simply adjourn the matter.
Similarly, it is difficult to understand the proposition that the learned Magistrate somehow erred in fact or in law or denied the mother procedural fairness, by in her words, “treating the matter as urgent” when both parties proposed that interim orders be made.
In essence, the wife’s complaint in that regard can only be based on a proposition that the learned Magistrate somehow erred in the exercise of his discretion in making orders before family dispute resolution had taken place. That was a matter clearly within His Honour’s discretion, particularly given that the wife lives in the Perth metropolitan area and the husband lives in Town B. His Honour clearly had regard to s 60I(1) in making an order for family dispute resolution to take place if practicable.
The criticism by the appellant of what she says was the perception of the learned Magistrate that a case assessment conference would only be listed if there was some risk is also misplaced. As those advising the wife would know, the Family Court of Western Australia does not have the resources to list case assessment conferences in all parenting matters.
As a broad rule, such conferences are, in fact, only listed where there are allegations or issues associated with risk. In any event, the proceedings having been transferred to the Family Court of Western Australia, it remains open at any time for the wife to seek the listing of a case assessment conference.
Similarly, the complaint that the learned Magistrate dismissed the wife’s application to transfer the proceedings to Perth ignores the fundamental point that the learned Magistrate did no such thing.
His Honour simply made an order until further order that the matter be transferred to the Family Court of Western Australia to be listed, if possible, in the next circuit hearing in Town A. The wife’s application for a change of venue remains alive and, even if it did not, it could be brought again at any stage.
The wife complains that the learned Magistrate erred in fact or in law or in denying her procedural fairness by making an order restraining the maternal grandfather from being present at the limited time the children were to spend with the father pursuant to his orders.
The case information affidavit filed on behalf of the husband, which was before the learned Magistrate, stated:
The father of the respondent mother, despite previous requests not to do so, continually bombards the father with harassing and intimidating texts and has previously threatened physical violence towards the father and has previously threatened to burn down the father’s house.
The wife’s Form 1A response did not seek any orders to enable her father to be present during the children’s time with the husband. Even assuming that the evidence of the husband in relation to his father-in-law is denied by the wife – although there was no reference to it in her responding documents – it was clearly open to the learned Magistrate in making short-term interim arrangements, to put in place orders which would keep the peace and avoid the possibility of conflict in the presence of the children, regardless of which of the adults might be the instigator of such conflict.
The wife then complains that the learned Magistrate gave inadequate reasons. She goes on to complain that he erred in law and/or in fact in giving no or no adequate weight to evidence of various matters set out in the second proposed ground of appeal.
The third ground of appeal was that the learned Magistrate erred in law and/or in fact in giving too much weight in the circumstances to a consideration of the benefit to the children of a meaningful relationship with the husband.
The fourth ground of appeal is that the learned Magistrate’s decision was manifestly unreasonable in the circumstances.
All of those grounds ignore a fundamental point. The learned Magistrate ordered that the children spend time with the husband on four occasions in the metropolitan area of Perth for a period of two hours on a supervised basis. While he did not order the use of a professional supervisory service as sought by the wife, he did entitle her to have a person of her choosing other than her father present.
In her Form 1A response, the mother sought the following interim orders in the event that the Court was not inclined to compel the parties to attend a family dispute resolution session:
That the child have supervised time with the applicant husband with such time to be supervised by a suitably qualified supervision agency in the Perth metropolitan area and as close as is reasonably practicable to [Suburb E], each weekend for a period of two hours on each occasion and commencing on a date to be agreed between the parties.
In other words, the learned Magistrate ordered that the husband’s initial time with the children be in the Perth metropolitan area as proposed by the wife rather than in Town D as proposed by the husband, that it be for a period of two hours on each occasion, as proposed by the wife, and that it be supervised, again as proposed by the wife, albeit on the basis already mentioned and against the background of the husband having sought that the time be unsupervised.
Apart from the details of supervision, the only departure from the orders sought by the wife herself was that His Honour ordered less frequent periods for the children to spend time with the husband than the mother herself had proposed, which was hardly surprising given that the wife’s proposal would involve the husband travelling to Perth from Town B every weekend.
It is, with all due respect, very difficult to understand the basis upon which the wife purports to criticise the substantive merits of the learned Magistrate’s decision in circumstances where the interim orders which he made align so closely with those which she herself proposed, albeit in the alternative. It is even more difficult to understand the perceived utility of the appeal when the method by which the appeal would proceed, if leave is granted, is considered.
As already noted, the appeal would proceed by way of a hearing de novo. It is to be anticipated that one or both parties might wish to file further affidavit material and time would need to be allowed for that to occur. Even if no further affidavit material was sought to be filed, it is unlikely that the substantive appeal could be heard within the next six weeks. Of course, r 22.29 of the Family Law Rules 2004 (Cth) provides that a date for hearing is to be fixed near as practicable to 56 days after the Notice of Appeal was filed.
There are only two more scheduled periods for the children to spend time with the husband pursuant to the orders; 24 September 2016, which is this Saturday, and 29 October 2016. In other words, the interim order, at least insofar as it provides for the children to spend time with the husband, will have run its course before any substantive appeal can be heard. It follows that, in my view, there is no merit in the proposed appeal. There is, accordingly, no utility in granting leave for the appeal to be filed out of time.
Even if I am wrong in my conclusion that leave should not be granted, I record that had the proposed application for a stay of the learned Magistrate’s order pending determination of the appeal come before me today, I would have dismissed it, both by reference to the matters to which I have already referred and noting that, given the timeframes involved, the granting of a stay would, in effect, determine the appeal in favour of the wife. As I pointed out to counsel, the substantive proceedings are already listed at the request of the husband before a Family Law Magistrate on 17 October 2016 at 10.00 am.

The parties might more usefully turn their attention to the appropriate steps to be taken at that hearing to advance the substantive proceedings before that Court.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Brien delivered on 19 September 2016.

Associate:

Date: 1 December 2016