NABER & SOBCZAK - [2015] FamCAFC 144

FAMILY COURT OF AUSTRALIA

NABER & SOBCZAK

[2015] FamCAFC 144

FAMILY LAW – APPLICATION IN AN APPEAL – Application to file a notice of appeal from an interim parenting decision of a Federal Circuit Court Judge out of time – Where the Federal Circuit Court Judge made a recovery order for the child – Where the Federal Circuit Court Judge changed with whom the child was to live – Where the delay is adequately explained – Where there is merit in the appeal – Application allowed.

Family Law Act 1975 (Cth) s 94AAA(10), 60CC
Family Law Rules 2004 r 1.14, 22.03

Gallo v Dawson (1990) 93 ALR 479
Goode and Goode (2006) FLC 93-286

APPLICANT:

Ms Naber

RESPONDENT:

Mr Sobczak

FILE NUMBER:

BRC

11069

2009

APPEAL NUMBER:

2015

DATE DELIVERED:

24 July 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

24 July 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 July 2015

LOWER COURT MNC:

[2015] FCCA 1824

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Heazlewood
SOLICITOR FOR THE APPLICANT:	Pagano Burlovich Lawyers

COUNSEL FOR THE RESPONDENT:	Mr Cooper
SOLICITOR FOR THE RESPONDENT:	Journey family Lawyers
INDEPENDENT CHILDREN’S LAWYER:	Parker Family Law

Upon the undertaking of the applicant mother’s lawyers to pay the fee for filing the Notice of Appeal,

It is Ordered:

The applicant mother’s Application in an Appeal filed 30 June 2015 seeking an extension of time to file a Notice of Appeal against the orders of Judge Leanne Turner made on 15 January 2015 be allowed.
The applicant mother have leave to file a Notice of Appeal this day.

By Consent it is Further ordered:

Upon the filing of the appeal, the appeal be allowed and the orders made 15 January 2015 be set aside.
Until further order, the child, born … 2007, live with the father.
The application for parenting orders and contravention proceedings be heard by a judge other than Judge Turner.

Further It is Ordered:

The matter be listed for a directions hearing on 28 July 2015 at 9.30 am before Judge Spelleken in the Federal Circuit Court of Australia at Brisbane.
No orders as to costs of today.

Notation

Noted that the Contravention Application filed by the respondent father on 9 January 2014 to be discontinued on the condition that any factual issues the subject of the Contravention Application can be raised on the final hearing.
Noted that agreement has been reached as to interim orders until a final hearing or Christmas school holidays, whichever first occurs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Naber & Sobczak has been approved by the Chief Justice 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 45 of 2015
File Number: BRC 11069 of 2009

Ms Naber

Applicant

And

Mr Sobczak

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 30 June 2015, Ms Naber (“the mother”) filed an Application (together with an affidavit) seeking various orders including an extension of time to file a Notice of Appeal from orders made on 15 January 2015 by Judge Turner.
On 15 January 2015, Judge Turner issued a recovery order to State and Commonwealth police to recover the child, born in 2007 (“the child”). The child was removed from her mother in New South Wales and delivered to Mr Sobczak (“the father”) to live with him in Queensland. The orders also provided the child would live with the father until further order and that he could change the child’s school.
The mother was not in court on the day these orders were made as she was with the duty lawyer, and apparently did not know the matter had been called. The matter proceeded by way of an undefended hearing because the mother was not in court. In her absence, Judge Turner made orders as follows:
(1)That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)To find and recover the child … and to deliver the said child to the Applicant Father …, or such other place as the Applicant Father and the person effecting such recovery agree to be appropriate; and
(b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
(2)That the child … born … 2007 (“the child”) live with the father.
(3)That the parents do all things necessary to enrol the child in [the Queensland] State School.
(4) That costs be reserved.
(5)That this matter be adjourned for mention/hearing to 9:00am on 12 February 2015 in the Federal Circuit Court of Australia at Brisbane.
THE COURT NOTES:
(6)Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
(original emphasis)
The child has continued living with the father and is presently seven years of age.
Although she had initially engaged lawyers, the mother was without legal representation for several months until April 2015, with the financial assistance of her family. It was upon advice of those lawyers that the mother became aware she could appeal the orders of Judge Turner, causing the mother to file this Application in an Appeal on 30 June 2015.
The father opposed the Application, and submitted that the mother did not properly utilise the community legal aid services available to her.
Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a Notice of Appeal must be filed “within 28 days after the date the order appealed from was made”. The mother was therefore approximately five months out of time when she filed the application on 30 June 2015.
I heard this application as a single judge pursuant to s 94AAA(10) of the Family Law Act 1975 (Cth) (“the Act”).
At the urging of the Independent Children’s Lawyer (“the ICL”) there were discussions in this matter which ultimately resolved issues relating to the proposed appeal. However, as orders were made allowing the application and consent orders, some reasons are necessary.

The Application to extend time to Appeal

The father was born in 1971 and is presently 43 years of age. The mother was born in 1990 and is presently 24 years of age.
The parties were in a brief relationship from 2006 to 2007, and the child was born just prior to separation. After separation, the mother and the child moved to New South Wales to live with the maternal grandmother. The parties briefly reconciled in late 2007 to early 2008, when the mother and child recommenced living with the father in Queensland.
They separated on a final basis in March 2008, and the mother and child returned to live in New South Wales. On 15 July 2008, final consent orders were made, which provided for the child to live with the mother and spend time with the father for certain periods, usually for a weekend every second month.
The parties have a long history of litigation. Proceedings were commenced on an urgent basis by the father on 2 December 2009. He sought on an interim and final basis that the parents have equal shared parental responsibility for the child, but that the child should live with him and spend time with the mother. The father commenced the proceedings upon learning the mother at that time planned to relocate from New South Wales to Western Australia.
By way of a number of affidavits filed across 2009 and 2010, the father recorded that he at times did not know the whereabouts of the mother or the child, the sporadic time he had with the child and the contraventions of the mother.
On 30 July 2010, the parties resolved by consent, the time the father would spend with the child. In an affidavit filed 12 August 2010, the father noted that the mother had appeared to subsequently withdraw her consent. Further consent orders were entered into on 20 August 2010. From this period, until May 2013, the father and child spent time together as agreed by consent, but not without difficulty on the part of the mother.
Paragraphs [23] – [39] of Judge Turner’s reasons of 1 July 2015 sets out a useful history of the events after May 2013. It is convenient to summarise these events again in these reasons to explain, in part, the basis of the orders made by the judge:
a)In May 2013, the mother terminated all time the child was to spend with the father. Despite attempting to engage the mother in mediation, the mother did not participate (at [23]);
b)In January 2014, the father filed a contravention application alleging a number of contraventions by the mother (at [25]);
c)In April 2014, a location order was made for the child (at [27]);
d)In May and July 2014, at the mention dates for the contravention application, the mother was legally represented (at [28] - [29]);
e)In September 2014, the mother notified the court she was self-represented. The mother failed to attend the mention date in September 2014 and directions were made that unless the mother attended the next mention date, the matter would proceed undefended (at [31] – [32]);
f)In October 2014, the mother failed to attend. The matter was set down for 15 January 2015 (at [33]);
g)In November and December 2014, the mother failed to comply with procedural directions made in October 2014. The father had organised to spend time with the child and had paid for her flights from New South Wales to Queensland, however the mother failed to put the child on the flight (at [34]-[36]); and
h)On 15 January 2015, the mother failed to attend (at [39]).
The reasons were not published until 1 July 2015 after a request from lawyers for the mother.

Principles for an Extension of Time

Section 94AAA(10) of the Act provides that applications of a procedural nature, including applications for an extension of time within which to institute an appeal, may be heard by a single judge or by a Full Court. Rule 1.14 of the Rules allows a party to apply to extend (or shorten) a period of time fixed under the Rules. However, there are no further criteria contained in the Act or the Rules to assist in the exercise of discretion to extend time.
The general principles for granting an extension of time are well known. Reference is often made to Gallo v Dawson (1990) 93 ALR 479 at 480-481 per McHugh J, and in particular the following three factors (although they are not decisive or exhaustive):
·whether there is an adequate explanation for the delay;
·the proposed grounds of appeal having some merit; and
·that any prejudice to the respondent can be compensated by an order for costs.

The Mother’s Application

In an affidavit filed 30 June 2015, in support of the application, the mother provides a reasonable explanation of the reason for delay in filing the notice of appeal.
The mother had been without legal representation. On 17 September 2014, when the matter was mentioned the mother was with a duty lawyer when the matter was called and did not know it would proceed without her.
The mother explained that by the time of the hearing on 15 January 2015:
36.I had intended to appear before the Court on 15 January 2015, however could not recall the date I had to appear, when I made the inquiries as to when the matter was in Court, being the following day I became depressed and could not think straight and adopted the view that as I had not filed anything, the Judge would go off at me anyway, so what was the point of turning up.
37.I formed this view based upon my prior appearance before Court and the manner in which I was spoken to by Judge Turner.
The mother explains that it was only upon financial assistance from a family member could she afford to engage lawyers:
…
52.It was not until I had engaged the services of Pagano Burlovich Lawyers that I became aware that I could appeal the Orders made by Judge Turner.
53.In light of the Orders that her Honour had made when I was before her on 12 February, I had instructed Pagano Burlovich Lawyers to help me prepare an Affidavit and a response to the Orders which [the father] was seeking.
…
55.I understand that on 19 June 2015, Simone Pagano of Pagano Burlovich Lawyers received the transcript of 15 January 2015 following which certain advice was provided.
56.As a result, I have caused instructions to be provided to Ms. Pagano for the proceedings in support of which this Affidavit is to be filed. I submit this has been filed at the earliest available opportunity after becoming aware of the events which took place on 15 January 2015.
The delay is adequately explained. Although the mother has demonstrated a past history of not complying with court orders, it is also clear that on 17 September 2014 and 15 January 2015 the mother was without legal representation and did not properly understand or appreciate the mechanics of the legal system.
In granting an extension of time it is necessary to consider the merits of the appeal.
If given an extension of time, the mother has 10 grounds of appeal:
1.Her Honour erred in law in failing to consider the best interests of the child when making:-
(a)the recovery order; and/or
(b)the Order that the child live with the father.
2.Her Honour erred in law by failing to consider the legislative pathway set out in Part VII Family Law Act 1975 [Cth] when making:-
(a)the recovery order; and/or
(b)the order that the child live with the father.
3.Her Honour erred in making findings that the appellant was not going to comply with any order of the Court
4.Her Honour erred in failing to give the mother any procedural fairness by:
(a)dealing with the father’s oral application for recovery of the child and that the child live with the father without the mother having any notice of such an application;
(b)in dealing with such application without giving the mother an opportunity to consider same;
(c)in dealing with such application without giving the mother an opportunity to seek advice in relation thereto
(d)making findings that the mother was not going to comply with any order of the Court in circumstances where the mother was not given the opportunity of making any submissions in respect of such matters
5. Her Honour erred in law by prejudging the matters before her
6.Her Honour erred in failing to give adequate reasons for making the recovery order.
7.Her Honour erred in failing to give adequate reasons for making the order that the child live with the mother.
8.Her Honour erred in failing to give the Mother procedural fairness.
9.In all circumstances, Her Honour demonstrated actual bias against the [mother]
10.In the alternative, in all the circumstances any reasonable person would apprehend Her Honour was biased against the [mother]
If successful, the mother seeks that the orders of 15 January 2015 be set aside, the matter be remitted for hearing before a judge other than Judge Turner and that the father pay the mother’s costs of and incidental to the appeal.
The matter before Judge Turner on 15 January 2015 was a contravention hearing. As mentioned the mother did not appear, and in light of this counsel for the father and her Honour had the following exchange:
MS LYONS:It’s quite a pickle, your Honour ---
…
MS LYONS:--- in a sense because the father’s position is he would just like the orders to be complied with. I’ve explained to him this morning that your Honour must act in the best interests of this child. Even if the orders are upheld, or the orders that the father is seeking with some variations are made, it still would mean in reality that he’s not going to see the child.
(Transcript, 15 January 2015, p 2 l 26 – 34)
MS LYONS: It appears to me, sadly – and this is not the course my client wished to go down – that the orders may need to be looked at again. But in saying that, the mother, again, is not here. Her personal appearance is going to need to be required for that course to be taken in any event. Clearly, today, we would like contravention findings to be made, but then the question is what is the next step.
HER HONOUR:       That is the problem, isn’t it.
MS LYONS: Yes.
HER HONOUR:       Because the only application on foot, and correct me if I’m wrong, is the contravention application.
MS LYONS: I believe so.
(Transcript, 15 January 2015, p 2 – 3)
HER HONOUR:       Yes. The reality is she’s not going to. I could do things. I could issue a warrant for her arrest, but she’s likely to turn up and not do anything about anything anyway. It really is a – it’s a crossroads for your client in deciding what to do with this matter and which way to go because whilst we’ve got arrangements in place as they stand ---
MS LYONS: Yes
HER HONOUR:       Chances are mum’s never going to comply.
…
HER HONOUR:       What I would like you to do is, if you – and I know you’re involved in the next matter, but perhaps if your instructor could write out the orders that are being sought today.
(Transcript, 15 January 2015, p 4)
Judge Turner stood down the matter, and counsel for the father prepared new draft orders (of which the mother had no notice), seeking the child live with the father. Importantly, counsel for the father requested in the alternative that a warrant could be issued for the mother’s arrest and the matter be brought back before the judge prior to the start of the school term.
In deciding to make a recovery order, Judge Turner commented:
HER HONOUR: I think that is the only way. It is a drastic measure. It’s not a course that I take lightly, but then this is a situation where it is evidence that the mother is not going to do anything that the court requires her to do in facilitating time between the father and the child, and that pending the hearing of the contravention application, the court really has no choice but to ensure that the father does spend some time with the child, and that can only be done by way of a recovery order and an interim live-with order.
(Transcript, 15 January 2015, p 7 l 36 – 43)
The recovery order was made and her Honour adjourned the contravention hearing, stating that she wanted to give the mother an opportunity to be heard on the contravention matter (Transcript, p 8 l 1). There has been no hearing of the parenting orders or the contravention proceedings. The ICL informed the court that the contravention proceedings have been set down for hearing on 12 and 13 October 2015. It is the preference of the ICL for the parenting issues to be heard as soon as possible.
There is no doubt there is merit in this appeal. The parties’ matter was listed for hearing before her Honour on 15 January 2015 for a contravention hearing. While it is acknowledged that the mother does have a history of contraventions and non-compliance with orders, the mother was not afforded procedural fairness in the approach her Honour took on 15 January 2015.
The mother had no notice of the orders that were proposed by counsel for the father, nor did it appear that her Honour considered the alternative proposed by the father – that the matter be adjourned again prior to the start of the school term.

In deciding to issue the recovery order, make a residence order and change the child’s school, the primary judge did not give reasons demonstrating that she had considered the best interests of the child. It was an interim contravention hearing. Decisions involving children must take into account the relevant considerations found in s 60CC of the Family Law Act 1975 (Cth), including the well-known principles identified in Goode and Goode (2006) FLC 93-286.
At the time the judge made an order that the father have the child live with him and made no provision for time with the mother, the judge knew very little about the father’s capacity to care for the child. Thus, the judge could not have properly decided that such an order was in the child’s best interests.
Nothing in the transcript or reasons reveals a proper consideration of the consequences of ordering the child be recovered by police and put into the father’s care, such considerations including:
a)The child had only lived with the father briefly, as an infant, and otherwise had only spent short periods together;
b)The child had otherwise lived with the mother her entire life;
c)The child was settled into a school and community in New South Wales, with friends and extra-curricular activities forming part of her routine; and
d)The trauma likely to be caused to the child when the police arrived to recover her into the father’s care.
The application to file a notice of appeal out of time must be allowed.
The parties, including the ICL agreed that the appeal should be allowed and the orders of 15 January 2015 should be set aside. The child will continue to reside with the father until the parenting applications are heard. It was also agreed that the matter should be heard by a judge other than Judge Turner.
In the circumstances of this case, it would be hoped that the final hearing of this matter in the Federal Circuit Court could be expedited.

costs

At the conclusion of the hearing I asked the parties to make submissions as to costs.
Neither party sought costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 24 July 2015.

Associate:

Date: 24 July 2015