MULDOON & CARLYLE
[2011] FamCAFC 135
•9 June 2011
FAMILY COURT OF AUSTRALIA
| MULDOON & CARLYLE | [2011] FamCAFC 135 |
| FAMILY LAW - APPEAL – Application to extend time to appeal – Where the delay in filing the notice of appeal was adequately explained – Where the prejudice to the mother was limited to the costs and inconvenience of the appeal – Where there are proper grounds to be argued on appeal – Application allowed. FAMILY LAW - COSTS – Costs reserved to the Full Court. |
| Family Law Act 1975 (Cth) |
| Clivery & Conway [2007] FamCA 1435 Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Mr Muldoon |
| RESPONDENT: | Ms Carlyle |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRF | 1472 | of | 2004 |
| APPEAL NUMBER: | NA | 44 | of | 2011 |
| DATE DELIVERED: | 9 June 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 9 June 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 February 2011 |
| LOWER COURT MNC: | [2011] FamCA 51 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Clutterbuck |
| SOLICITOR FOR THE APPELLANT: | Sanderson & Parks |
| SOLICITOR FOR THE RESPONDENT: | Family Law Doyle Keyworth & Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The applicant father have leave to file a notice of appeal out of time and the time within which the appeal may be filed be extended to 4.00pm on 17 June 2011.
The costs of and incidental to this application be reserved to the Full Court.
That a directions date be fixed with the Appeals Registrar.
IT IS NOTED that publication of this judgment under the pseudonym Muldoon & Carlyle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 44 of 2011
File Number: BRF 1472 of 2004
| Mr Muldoon |
Appellant
And
| Ms Carlyle |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
On 16 May 2011 the father filed an application in an appeal seeking leave to appeal out of time the orders made by O’Reilly J on 11 February 2011. To comply with the Rules it was necessary to file the appeal on or before 11 March 2011. The orders sought to be appealed are final parenting orders.
The mother opposes the father’s application. Obviously, should leave not be granted, the father will be unable to appeal.
Three accompanying affidavits have been filed in support of the father’s application. First, an affidavit of Ms Curtis, a law clerk in the father’s solicitors firm. Second, an affidavit of the father explaining the delay in filing the notice of appeal. The third affidavit is from the father’s solicitor annexing a letter from the father’s doctor.
History
The parties were married in September 1986 and separated in February 2004.
The parties’ children, L Muldoon born in February 2001 and S Muldoon born in July 2003 were the subject of the orders. Those children now aged are ten and seven.
The trial judge’s orders provided for equal shared parental responsibility for decisions relating to major long term issues concerning the children, with the exception of decisions about their health and education which is solely to be the mother’s responsibility. It was ordered that the children live with the mother and spend time with the father in or near O on alternate weekends from 4.00pm Friday until 4.00pm Sunday and for half the Easter and Christmas school holiday periods and the whole of the mid year school holidays. Times were also specified for special days and for Saturdays when the children have soccer matches. On those occasions the father has less time with the children. A crucial issue in the trial was whether the mother should move with the children away from O to R. It is relevant to refer to the Notation which provided as follows:
These final orders are predicted on the mother’s evidence of her intention to move from [O] to [R], and the Court’s understanding that such is likely to occur promptly after the date these orders are pronounced.
Relevant law
In Clivery & Conway [2007] FamCA 1435 the well known principles referable to such leave applications was discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Reason for the delay
Ms Curtis in her affidavit filed 16 May 2011 explains that the transcript of the trial was “extremely lengthy” and that consequently it took counsel time to read the material and prepare an advice.
The father in his affidavit explains:
7.I was informed of the decision of my Solicitor, that is, that the decision had been published on the 11th day of February 2011 and I was informed by my Solicitor, Mr Richards Parks, of the orders that had been made.
8.I did not have the opportunity to read the Judgment as at that time I was recovering from surgery for an abdominal hernia. Following that surgery and recovery, I spent the majority of time attempting to re-establish my business. The surgery I underwent necessitated I rest for a five week period thereafter. As such, I was not able to carry out my duties associated with my … enterprise and my work fell behind.
9.As soon as I was able, I concentrated all my energies on re-establishing my business.
10.Recently, I had the opportunity to speak with my Solicitor at which time he provided me with a copy of the reasons for the decision.
11.As identified in the trial, I have limited education and am a very slow reader. The judgment of Justice O’Reilly is 51 pages in length. It took me a considerable period of time to read the entire Judgment and also a considerable period of time to understand the meaning behind the Orders that were made.
The father explains that he is now aware of “the reasons why the Judge made the orders that she did according to the reasons that she has given” and while understanding that those are the orders now in place, the father is dissatisfied and believes that his relationship with the children is detrimentally impacted by the orders. After receiving the advice as to the prospects of an appeal the father now wishes to file a notice of appeal.
In case there is some doubt about the father’s assertions in relation to his health, a medical certificate from Dr T has been provided, which provides the following:
… I examined [the father] … who was suffering from Umbilical Hernia.
He had surgery at O Hospital on 12/01/2011.
After surgery, he was totally disabled for one month.
He resumed with light duties for one month, from 12/02/2011.
He was able to resume normal duties as from 12/03/2011.
…
The delay in this case is explained by the father’s ill health at the time the orders were made, together with his written comprehension difficulties.
Prejudice
Counsel for the husband submits that there is no prejudice to the mother “save and except for the inconvenience of an appeal, and costs associated with the appeal”.
This is no doubt correct, but I would emphasis that the wife resists leave being granted.
Merits of the appeal
Largely, the father is concerned that he now has very limited quality time with the children. He is now spending less time with the children than he did prior to the making of the orders.
In the proposed notice of appeal the father asserts eight grounds of appeal. The grounds allege both errors of fact and errors of law. In summary the grounds provide, that the trial judge erred:
1.In failing to make any orders that provided for the children to have substantial or significant time with the father.
2. In considering s 60CC(3) of the Family Law Act 1975 (Cth).
3. In placing the mother’s interests before the needs of the children.
4. In pre-determining the issues in dispute.
5.In failing to permit counsel for the father to agitate or enquire into relevant matters, and thereby making findings on an incorrect premise.
6.In making preliminary findings about parental responsibility and communicating those findings to the parties’, which in effect denied the parties the opportunity to cross examine the witnesses.
7.In failing to consider and make findings to the benefit of the children.
8.In failing to provide any or adequate reasons demonstrating that her Honour applied the relevant criteria as to “reasonably practicable” pursuant to s 65DAA(1) of the Act.
I note that in the affidavit of the father it is said that since the orders were made the mother has removed the children from O and relocated in R. The mother has subsequently enrolled the children in a school that is not the school prescribed by the trial judge’s orders. The father explains that he has been excluded by the orders and “from having any involvement in the long-term management, care and welfare of my children with respect to education and health matters”.
Counsel for the mother in their written submissions submits that the matters complained of by the father are a matter for contravention and not a ground of appeal.
That would be correct if the complaint was isolated to those matters. As Mr Clutterbuck, counsel for the father explained, the basis for the father’s appeal are far ranging and include the matters to which I have referred in the previous paragraphs.
If the father’s wishes to pursue the appeal it will be necessary for him to file an application to adduce further evidence together with an affidavit should part of his appeal relate to the children’s schooling.
Without commenting on the merits of the appeal anymore than is necessary for an application for an extension of time, it can be said that having regard to the grounds there are proper matters to be argued. It should also be said that as an appeal from a discretionary judgment the prospects of success are limited, especially in view of the comprehensive reasons given by the trial judge.
Conclusion
However, in all of the circumstances of this case I am of the view that leave should be granted.
Costs
At the end of the hearing submissions as to costs were heard. In the application in an appeal the father asks that, should leave be granted, the costs be reserved to the Full Court for consideration with the appeal.
As it is impossible to predict the outcome of the appeal, that is the most appropriate order.
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 9 June 2011.
Associate:
Date: 24 June 2011
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