Oscar and Delaware; Oscar and Austen
[2012] FamCAFC 102
•17 July 2012
FAMILY COURT OF AUSTRALIA
| OSCAR & DELAWARE; OSCAR & AUSTEN | [2012] FamCAFC 102 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where the delay in bringing the appeal was only one day – Where the father sought a further extension of time claiming medical circumstances and absence of his counsel – Where the effect of the orders sought to be appealed is very significant – Where the prejudice to the respondent mothers can be addressed by a limit to the time which the father is granted to file his appeal and by an order for costs where such costs were reasonably incurred – Applications allowed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Clivery & Conway [2007] FamCA 1435 Gallo & Dawson (1990) 93 ALR 479 |
| APPELLANT IN NA 36 & 37 OF 2012: | Mr Oscar |
| RESPONDENT IN NA 36 OF 2012: | Ms Delaware |
| RESPONDENT IN NA 37 OF 2012: | Ms Austen |
| INDEPENDENT CHILDREN’S LAWYER IN NA 36 & 37 OF 2012: | Rimmer Lawyers |
| FILE NUMBERS: | BRC | 4067 | of | 2009 |
| BRC | 4069 | of | 2009 |
| APPEAL NUMBERS: | NA | 36 | of | 2012 |
| NA | 37 | of | 2012 |
| DATE DELIVERED: | 17 July 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 17 July 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 April 2012 |
| LOWER COURT MNC: | [2012] FamCA 220 [2012] FamCA 211 |
REPRESENTATION
| APPELLANT NA 36 & 37/2012: | Mr Oscar in person (by telephone) |
| COUNSEL FOR RESPONDENT NA 36/2012: | Mr Hanlon |
| SOLICITOR FOR RESPONDENT NA 36/2012: | P L Corby & Co |
| RESPONDENT NA 37/2012: | Ms Austen in person (by telephone) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER NA 36 & 37/2012: | Ms Kathryn Hodges |
Orders
The time for the appellant father to file a Notice of Appeal in appeals
NA 36 and 37 of 2012 out of time against the orders of Benjamin J made
5 April 2012 be extended to 28 September 2012.
The Notices of Appeal be served on the respondent mothers at their addresses for service and the Independent Children’s Lawyer on or before 4pm on
28 September 2010.
The appellant father pay the costs of the first respondent fixed at $2,500. It is certified that it was reasonable to brief a lawyer to appear as counsel for the first respondent Ms Delaware in the proceedings.
The costs of the Independent Children’s Lawyer be reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oscar and Delaware; Oscar and Austen 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 Numbers: NA 36 & 37 of 2012
File Numbers: BRC 4067 & 4069 of 2009
| Mr Oscar |
Appellant
And
| Ms Delaware |
First Respondent
And
| Ms Austen |
Second Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
The father seeks an extension of time to file notices of appeal against two final parenting orders made by Benjamin J on 5 April 2012. The orders were made in respect of two children of different mothers, born July 2008 and January 2007. The circumstances of the matters were such that all parties consented to concurrent proceedings and a joint trial was held, with the same evidence being made available in each proceeding. The proceedings were conducted according to the Court’s Magellan protocols. The effect of the orders which the father now seeks to appeal was such that he have no time or contact with the children, other than sending letters and or cards on special days such as birthdays, Easter and Christmas.
The father should file two separate appeals in respect of each child should leave by given. Most likely the appeals will be consolidated. For the purposes of the extension of time applications, it is appropriate to consider the two matters together.
The proceedings before the trial judge were complex. There were allegations of sexual abuse, allegations of family violence, uncertainty surrounding the father’s immigration status, and alleged misuse of an interpreter in the court proceedings. The matter was conducted within the Court’s Magellan program, which deals with cases involving serious allegations of physical and sexual child abuse. An Independent Children’s Lawyer was appointed.
The trial was heard intermittently over the course of twelve days, between August 2011 and March 2012. The father was represented by counsel on a direct brief, a Mr Barajaraj. Ms Austen, the mother of the elder child, was self-represented. Ms Delaware, the mother of the younger child, had engaged solicitors and was represented by Mr Hanlon of counsel at the trial. The trial concluded on 13 March 2012 and the trial judge made two sets of orders and delivered separate reasons on 5 April 2012.
The orders which the father now seeks to appeal provided for essentially the same parenting arrangements for each child: that the mother have sole parental responsibility, including the exclusive parental responsibility to determine where within Australia the child resides, that the child live with the mother and communicate with the father (and his family) only by cards and letters on special days such as birthdays, Father’s Day, Christmas and Easter. Orders were also made restraining the father from approaching, meeting or spending time with each child, and from going to the home or school of the each child and to each mother’s place of employment. It was also ordered that the children’s names be put on the Australian Federal Police airport watch list. According to the father’s draft notices of appeal, he seeks to appeal only those orders which concern parental responsibility, time and communication with the children.
The respondent mothers and the Independent Children’s Lawyer did not file any material in response to the husband’s applications for an extension of time. It is quite clear however, that the mothers oppose the application on the basis that they are entitled to rely on the orders made, now that the appeal period has lapsed. The Independent Children’s Lawyer properly neither consented nor opposed the granting of leave.
In the intervening period between the listing of this hearing and last week, the father contacted the Appeals Registry to request an adjournment, citing medical problems. The father was informed an affidavit, ideally with medical certification, would be required for an adjournment to be considered. He did so, and in the circumstances I determined to hear the parties on both the extension of time and adjournment issues today.
The father’s draft notices of appeal raise only one tangible complaint, which essentially relates to the effect of the orders. There are two proposed grounds:
1. His Honour failed to adequately consider and apply the principles s65L, which would have enabled the father to spend supervised time with each of the children.
2. There are not provisions in the order to ensure that the mothers of the children will communicate or get to the children any letter or material sent by the father.
As will be seen, the first complaint is sufficient to meet the merit requirement for the extension of time purposes. As there is no further particularisation of alleged error on the part of the trial judge and as I intend to allow the extension of time particularly in view of the extremely short delay in filing the appeal, I do not consider it necessary to set out here the reasons for judgment of the trial judge other than one part of the reasons of Benjamin J. In paragraph 35 of the reasons in relation to the Ms Delaware’s child, his Honour said:
335.The impact of the evidence from Dr [V] and the family consultant is that there would be a significant adverse impact on both mothers if their respective child spent time with the father. The only way that could occur was with the complex treatment over many years as set out earlier, even this was based upon the goodwill of the parties and the willingness of the father to accept education. Neither of which is likely to occur. That significant adverse impact upon the mothers will undermine or diminish their ability to parent each of the children.
In making the decision to grant leave the Court is aware of the serious impacts on the mothers should the appeal proceedings continue.
Relevant Principles
In Clivery & Conway [2007] FamCA 1435 the well known principles applicable to extension of time applications were 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.
Explanation for the Delay
The 28 day appeal period prescribed by rule 22.03 of the Family Law Rules 2004 (Cth) expired on 3 May 2012. The father filed the extension of time applications on 4 May 2012, and in this sense is therefore barely delayed in seeking to appeal the orders. He also filed brief affidavits in support of his applications, in which he explained, “I am seeking an order for an extension of time…the reasons being legal representative is overseas until early June or July and I have been advised to seek medical attention for the traumas and stress created by the years of necessitated legal action; I request extension until July if not earlier, to allow get help and counsel”.
To allow the husband time to obtain the legal advice of which he spoke in the affidavit, and as the pleadings in the draft notices of appeal were clearly deficient, the hearing of the applications was not listed until today 17 July 2012. The parties were advised of the hearing date on 4 June 2012.
The father does not provide a specific explanation for filing the appeal one day out of time, but I do not consider the one day issue to be of great importance in the circumstances of this case. The more difficult issue for consideration is the application for an adjournment and the timing of the filing of a notice of appeal should leave be given.
In support of this request, on 7 July 2012 the father filed an identical affidavit in each appeal. He said:
1. Due to medical reasons professionals [sic], I request a further extension of time to the appeal. I request a further extension of time file the appeal, until the end of September 2012.
I attach with this affidavit as exhibit 1 the medical certificates to show my unfitness.
2.My barrister will also not be available until this date.
The first annexure to the affidavit is a referral letter from Dr W to Mr S, a psychologist, dated 15 May 2012. Dr W wrote: “Thank you for seeing [the father], who has major distress from the outcome of the Family Court determination that means he cannot see his 3 and 5 yr old girls…One is in [Queensland] other in tasmania [sic], different Mums, and he’s seeking support, having been helped by psychologist therapies in past yrs [sic] […]”.
The second annexure to the father’s affidavit is a letter from the psychologist Mr S dated 30 June 2012 and addressed to “The Family Law Court”. Mr S said:
I have been consulting in a therapeutic capacity with [the father] for three sessions to date after receiving a referral from his General Practitioner. [The father] was referred to me after he reported high levels of anxiety, stress and mood changes.
My understanding is that the lengthy legal proceedings of the past few months had a detrimental impact of [the father’s] wellbeing and his ability to deal effectively with ongoing legal proceedings.
I would like to recommend to the family Law Court to consider an extension of time for [the father] in regards to the upcoming hearing schedule to deal with his appeal to the Family Law Court. [The father’s] mental state is not conducive to dealing effectively at present with the matter and he will benefit from an extension of time.
Apart from the limited nature of this advice including when the father might be in an improved medical state, there is one other feature of these documents. It is clear that they were sent from Mr Barataraj’s office on 7 July 2012, the lawyer who previously acted for the father. In any event the father appeared by telephone and was well able to explain his position.
Merits of the Appeal
As mentioned, the proposed grounds of appeal in the father’s draft notices are deficient and would likely require amendment in order for an appeal to properly proceed.
Clarification is provided in the orders sought by the father. He seeks “supervised access for one (1) day every three months to be communicated to the mother at least eight weeks before the proposed access at an approved family relationship centre nearest to where the child resides”. It is apparent then that the father’s complaint in this ground is that the trial judge erred by ordering that he not spend time with the children when orders could have been made for supervised time.
The second proposed ground of appeal appears to be a complaint about lack of enforcement mechanisms within the orders to ensure that the communication from the father allowed by the orders will in fact occur.
On the current grounds of appeal therefore, the essence of the father’s proposed appeal would be that the orders made by the trial judge that the children spend no time with their father were not in the best interests of the children, and that supervised time ought to have been ordered.
It is extremely difficult without further particulars to consider the likely outcome of these grounds of appeal. However for the purpose of an extension of time application all that need be demonstrated is possible merit in the appeal. In circumstances where orders are made that a parent spend no time whatsoever and have in effect no interactive communication with their child, based on the comprehensive provision in the legislation and its operation to oblige judicial consideration of meaningful relationships and time spent by children with both parents, it cannot be said that there would be no possible merit in a proposed appeal of those orders.
Conclusion
The respondent mothers in these proceedings, understandably, oppose the granting of an extension of time on the basis that they are entitled to the security of the orders once the appeal period has lapsed. It is also understandable, given the background to this case, that the mothers are especially anxious about seeing an end to the litigation in the interests of themselves and their children.
The Independent Children’s Lawyer referred to the orders and that the children are having no contact with the father.
Although this is a procedural matter, the ultimate consideration remains what is required to do justice in the circumstances. The effect of the orders in this case is so serious that it would be unfair to apply the rules to prevent the father from appealing where he was only one day out of time in seeking to bring the appeal. On the basis of the material it cannot be said that there is sufficient merit in the proposed grounds to allow an appeal, however there is sufficient possible merit which is all that is required for an extension of time.
It is unfortunate for the respondent mothers that the proceedings may continue, however given the orders already provide that the children have no contact with the father, none will be impacted in the meantime. The prejudice to the mothers can be addressed with a limit to the extension of time granted to the father.
There being no good purpose in adjourning the application and the father indicating that he could file a notice of appeal by the end of September, that order would give the father the opportunity to appeal while also giving a time limit. Should the father not file a notice of appeal as ordered, his opportunity to appeal will come to an end.
Costs
Counsel for the first respondent Ms Delaware asked for costs and that there be certification for counsel. It could not be said that it was improper for the mother to oppose leave. It was necessary for Mr Hanlon to appear, especially as he had been counsel in the trial. Costs should be ordered. This application was necessary because the father did not comply with the Rules.
Apparently the questions of the father’s financial circumstances are controversial. In any event, a capacity to meet an order for costs is not conclusive.
The Rules provide that each party pay their own costs unless there are circumstances justifying an order for costs. As mentioned, in this instance the application was brought about solely because the father did not comply with the Rules. The order for costs should be made and to avoid the further expense and difficulties of assessment, the costs should be fixed. The sum sought of $2,500 seems reasonable.
The Independent Children’s Lawyer asked that their costs be reserved.
The second respondent Ms Austen asked for costs also, but it is apparent that at least for the moment, she has not incurred costs in relation to the proposed appeal.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 17 July 2012.
Associate:
Date: 17 July 2012
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