Padgett & Padgett (No 3)
[2024] FedCFamC1A 175
•4 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Padgett & Padgett (No 3) [2024] FedCFamC1A 175
Appeal from: Padgett & Padgett [2024] FCWAM 44 Appeal number: NAA 209 of 2024 File number: PTW 3906 of 2018 Judgment of: SCHONELL J Date of judgment: 4 October 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the applicant seeks an extension of time in which to file a Notice of Appeal – Where the application is opposed by the respondent – Where the applicant advances no satisfactory explanation for the 10 month delay – Where the appeal enjoys no merit – Where no prejudice can be suffered by the dismissal of an unmeritorious appeal – Application dismissed – Costs ordered in a fixed sum. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Cases cited: Gallo v Dawson (1990) 93 ALR 447; [1990] HCA 30
Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207
Number of paragraphs: 38 Date of hearing: 3 October 2024 Place: Sydney The Applicant: Self-represented litigant Counsel for the Respondent: Mr Raphael Solicitor for the Respondent: Clement and Co ORDERS
NAA209 of 2024
PTW 3906 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PADGETT
Applicant
AND: MR PADGETT
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
4 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 13 August 2024 is dismissed.
2.The Response to an Application in an Appeal filed 25 September 2024 is dismissed.
3.The applicant pay the respondent’s cost assessed in the sum of $5,000 within three months.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Padgett & Padgett has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application in an Appeal filed 13 August 2024, the applicant wife (“the applicant”) seeks an extension of time in which to file a Notice of Appeal. The application is supported by two affidavits; one filed on 13 August 2024 and the other on 6 September 2024.
On the day prior to the hearing the applicant sought to rely on two further affidavits; one affirmed 28 May 2024 (thus predating the application) and the other affirmed 5 September 2024. Leave was granted to the applicant to rely on those affidavits.
The order the subject of the Notice of Appeal was made on 10 November 2023 with short reasons delivered that day and what is described as “settled written reasons for the orders” delivered 29 January 2024.
The application is opposed by the respondent husband (“the respondent”) who relied on an affidavit filed 26 September 2024. In addition to dismissal, the respondent sought orders pursuant to s 102QB. That is not an application that can be heard by the Full Court and is a matter to be heard by the Family Court of Western Australia.
BACKGROUND
The proceedings involve the parties’ two children. The children are now aged 16 and 15.
Proceedings were first commenced by the respondent in May 2018 and proceeded to an undefended final hearing on 26 March 2021 (“the March 2021 proceeding”). On that date, orders were made for the respondent to have sole parental responsibility and for the children to spend time with the applicant as agreed. It would appear from the reasons that the applicant failed to comply with directions for filing affidavits, arrived at the hearing late and did not participate in the hearing in any meaningful way.
The orders for the children to live with the respondent reflected that which had been in place since 2019.
On 4 November 2021, the applicant, albeit well out of time, filed an appeal. That appeal was ultimately abandoned.
On 4 February 2022, the applicant filed a further application seeking to reagitate the issue in relation to parenting. That application was finally determined by the Magistrate on 10 November 2023 (“the November 2023 proceedings”). The Magistrate observed the applicant had a long history of filing multiple interim applications concerning the children, a long history of inadequate participation in the court proceedings, calculated that the matter had been before the court for approximately 67 months, and that both parties had spent a significant sum of money.
The Magistrate observed that a single expert witness had provided two reports for the March 2021 proceedings and two further reports for the November 2023 proceedings. The Magistrate observed that the reports made it clear that the children no longer wished to spend time with the applicant and did not feel comfortable in her presence. In the March 2021 proceedings, the single expert concluded the applicant’s thinking was, at times, illogical and disorganised. The single expert further concluded that the applicant had a pattern of behaviour where if she did not get her own way, she would behave illogically.
The Magistrate recorded the single expert opining, as follows:
33.The [applicant], on the other hand, strongly believes the [respondent] is a violent and aggressive person. She believes he has coerced and influenced the children against her. She claims the [respondent] was extremely violent and in the past, made multiple threats to kill her, the children and to self-harm. She believes the children are too frightened of the [respondent] to speak their true mind or go against his wishes. The [applicant] made various allegations about communications she has received from the children through electronic means and by text message, in which the children articulated a wish to spend time with her and fear of the [respondent].
As described above, the single expert prepared two reports for the November 2023 proceedings. The learned Magistrate observed, as follows:
37.[Dr C] explained to the [applicant] that he was interested in the dynamics of the dispute between the parents, and decisions in relation to factual issues were to be determined by the Court and not by the Expert, notwithstanding he found it difficult to engage with the [applicant] in a normal manner. Time ran out, and he had to schedule a further appointment. The [applicant], in her affidavit material, which was considered by [Dr C], attached relevant annexures about the authenticity of communications between the [applicant] and the children and in relation to the taped telephone conversations that she had referred to.
38.She put this forward to highlight her concerns about the care the [respondent] provides to the children and including, her allegation that [Y] allegedly stated he wanted to kill himself. She claimed that [X] was so concerned and scared of [the respondent] that she believed he would kill her if he knew she was speaking with [the applicant].
39.[Dr C] described the [respondent]’s position in relation to the tapes and communications, and the [respondent] expressed concern that the [applicant] had previously studied information technology, and he was concerned the [applicant] may have accessed passwords to the children’s account. He believed the communications the [applicant] wished to rely on were, in fact, forgeries.
40.[Dr C] asked the child [Y] about the text messages relevant to him, and [Y] said, "I think she made it up," referring to the [applicant]. [Y] said, "I think she created a different account and texted herself." He said at the time, [the applicant] was not a friend on Snapchat, and she would send texts. He denied that he had said that he wanted to kill himself.
41.[X] was also adamant, saying that she did not write the text messages the [applicant] referred to and described them as all fake. She said in terms of the content, "Dad never takes the phone off me or puts me in the room. I do not write "please' as in PLZ. I always write ‘please’ spelling it correctly." She said that she does not refer to Dad as Dad but as Father, and she said she makes fun of people who use abbreviations like "U2". [X] denied the contents were something that she would have said.
42.[Dr C] described the factual dispute as being a fundamental problem in the case. [Dr C] said if the children truly wrote these texts, it reflects quite significant concerns for their functioning and the fact they would discount and deny is suggestive of very strong alignment and loyalty to the [respondent]. On the other hand, if the [applicant]’s allegations are not true, it suggests an elaborate hoax on the part of the [applicant] designed to pervert the course of justice.
43.[Dr C] said that unless the source IP address could be found, these allegations made it almost impossible to determine what is going on for the children. [Dr C] said he could readily see [Y] aligning with [the respondent], so his comments were not as significant in weight, but he considered the comments made by [X] as more dependable in terms of her presentation. [Dr C] also described the [applicant] as presenting as extremely intense and emotionally agitated.
44.The [applicant]’s position, as she said to [Dr C], is that everything the [respondent] says is a lie and the children have been strongly influenced. She alleged all evidence the [respondent] placed before the Court and [Dr C] was false and misleading.
…
50.[Dr C] described the situation as having no middle-ground explanation and suggested the factual dispute might be resolved by the identification of IP addresses, which could prove the origins of the emails. He said that this would involve a forensic examination. [Dr C] then went on to speak about the difficulty for the children in terms of being caught in the dispute.
51.Unfortunately, notwithstanding various applications made to the Court for the appointment of a forensic computer expert, cost barriers, prevented the forensic examination of the communications as [Dr C] had recommended and upon which the [applicant] so heavily relied. The [applicant] issued a number of subpoenas to Microsoft, Facebook, to Snapchat, and she filed an application for [Dr E] to be appointed as an expert to access the relevant devices and prepare reports in relation to the authenticity of the communications.
52.Unfortunately, after a number of hearings, it transpired that neither party had the financial resources to meet the very substantial costs involved in the forensic examination. The quotes for the forensic examination ran into tens of thousands of dollars, and the application had to be abandoned.
53.[Dr C] reported again after his more recent discussions with the children. [Y] described having a visit with [the applicant], which initially had gone well. [Y] said that he thinks about [the applicant] from time to time and he decided to spend time with her, but he said after an initial happy 24-hour period, the [applicant] began talking about the Court proceedings and questioning [Y] about the [respondent]. [Y] said this ruined the experience for him.
54.[X] presented to [Dr C] at the second interview as a particularly mature and balanced young person with a strong mind. [X], in her conversations with [Dr C] made clear she did not enjoy spending time with the [applicant] and attempted to avoid her. [X] went on to describe a number of incidents involving [the applicant], which had caused her strong feelings.
55.In conclusion [Dr C] said the dynamics were unchanged from the previous report with the primary reason for children not wanting to see the [applicant] related to her behaviour when they do see her. [Dr C] concluded that the children do not feel safe and cannot trust what will happen. [Dr C] commented on the fact that by the time the matter reached trial, the children would be much older, and their opinions and feelings were likely to become more intense as they exercised more authority over their care arrangements.
…
60.The Court made final parenting orders on 10 November 2023, having found no prospect of the [applicant]’s application succeeding and summarily dismissing the application. Those orders provided for the children to live with the [respondent], for the [respondent] to have sole parental responsibility, for the children to communicate and spend time with the [applicant] in accordance with their wishes, and, otherwise, the proceedings were dismissed.
…
68.I determined at the conclusion of the hearing on 10 November 2023, that the [applicant]’s application for the children to live with her and the various other orders she sought had no reasonable prospects of success. The evidence overwhelmingly indicated that for several years the children had been adamant and expressed clear wishes to the Single Expert Witness that they were happy, and content residing in the [respondent]’s care and did not wish to live with or spend time with the [applicant].
69.The [applicant] had sought an order for the children to live exclusively in her care. The children have no wish to live in the [applicant]'s care or to live in the [applicant]'s care on an equal shared care basis and, in fact, both children and particularly the child [X] expressed views that they did not wish to have any contact. [Y] said that from time to time he would think of [the applicant] and wanted to see her but that it would end badly when he did.
70.There have been multiple interviews of the children. The matter has been litigated off and on for 67 months. Unfortunately, the [applicant], has been self-represented for a sizeable portion of the proceedings. At times legal counsel has represented her. She has not properly conducted the proceedings. There have been multiple occasions when the [applicant] failed to file documents as directed by the Court and failed to comply with orders made by the Court.
71.The [applicant] appears to have failed to properly analyse or understand the recommendations of the Single Expert Witness. This is notable, particularly given the contents of the judgment of Chief Justice Sutherland about her Honour’s acceptance of his evidence. The [applicant] has been a non‑compliant litigant. She has caused multiple hearing dates to be unproductive and a waste of the Court’s resources which have also caused frustration for both parties and resulted in significant wasted costs.
72.The [applicant] has made multiple allegations against the [respondent] about serious family domestic violence. She has alleged the [respondent] has tampered with communications, with the messages and fraudulently presented his case to the Court but the [applicant] has been unable to establish based on any expert evidence that the [respondent] has behaved in the manner she describes.
73.Although the matter has not proceeded to an undefended hearing the [applicant] did have an opportunity to thoroughly and properly test the evidence during the first tranche of the proceedings but for reasons which are difficult to understand particularly given the serious nature of her allegations, she did not properly prosecute her application or participate in the trial process.
74.As a result of the [applicant]’s allegations that the [respondent] was not complying with the orders made at the undefended hearing, the Court permitted the reopening of the proceedings by the [applicant]’s Form 1 Application filed in 2022.
75.The matter has now been before the Court for another two-year period and there is no forensic evidence to support the claims the [applicant] has made about the [respondent]’s alleged conduct. I am conscious of the fact that whilst the allegations have not been assessed in the second tranche of the proceedings when I review the case in its entirety, I am persuaded I should summarily dismiss the application because there is no prospect of the [applicant]’s application being successful in any event.
76.Even if the [applicant] was able to factually establish some of the allegations she has raised against the [respondent], the children have now been living in the [respondent]’s care for several years without any major incident. Although the [applicant] is critical of the standard of care the [respondent] has provided, there have been no major incidents involving the children. Both children are attending school regularly. There does not appear to be any risk to the children in the [respondent]’s care on the available evidence.
77.Very sadly, the children currently do not enjoy a relationship with the [applicant] which is troubling and very upsetting for the [applicant]. However, the [applicant]’s own conduct, as [Dr C] has described it, has very much created the dynamics apparent in this case. The [applicant]’s inexplicable actions in refusing to spend time with the children when things did not go her way is at odds with her allegations that the [respondent] is a dangerous, aggressive person who is a risk to the children and that he may harm or kill the children or kill the [applicant]. The [applicant]’s own actions in causing the children to have no contact with her over those periods of time are entirely inconsistent with the allegations she makes.
78.I have determined that it is appropriate in these circumstances for me to make orders to summarily dismiss the [applicant]’s application. If the matter were to progress to trial by the time the matter was reached the children would be older, and potentially they would need to be interviewed again. I believe the children have already suffered disadvantage by the very many interviews that have taken place over the life of this litigation.
79.I am not persuaded the children being interviewed again for a trial process is in their best interests. The [applicant] has not participated properly in the proceedings and, unfortunately, she has caused significant additional and unnecessary costs to be incurred.
The affidavit affirmed 28 May 2024 dealt with financial matters. The applicant advised that she only sought to rely on paragraphs 21, 56 and 60–68. None of those paragraphs contained evidence relevant to the issues the subject of the current application.
The affidavit filed 13 August 2024 addresses a range of matters, many of which are irrelevant to the current application and amount to a list of grievances about the respondent’s conduct. All but a few paragraphs address matters that predate the hearing on 10 November 2023.
The affidavit affirmed 5 September 2024 was filed in support of an application for contempt. As with the affidavit sworn 28 May 2024, it related to financial matters and otherwise traversed matters of history dating back to 2015. The applicant’s cover letter to the Court asserted that the affidavit dealt with the following issues:
1.Disposal of assets without consent.
2.Non-compliance with property orders and failure to declare disposals of property.
3.False and fabricated allegations in parenting matters.
4.Vexatious litigation and financial abuse.
5.Manipulation of interim consent orders (property).
6.Repeated contraventions of parenting orders.
7.Post-trial non-compliance with parenting orders.
8.Breaches of Family Violence Restraining Orders (FVRO) and vexation conduct.
9.Non-disclosure of breaches and welfare concerns by family therapists, lawyers, and the Independent Children’s Lawyer (ICL).
The affidavit is irrelevant to the issues the subject of the current application.
The affidavit filed 6 September 2024 addresses matters said to constitute a change of circumstances in relation to the parenting matters, including an assertion that the children’s school performance has declined, and that the paternal grandmother has moved into the respondent’s home. However, in the affidavit filed 13 August 2024, the applicant refers to being aware of each of these matters before the hearing on 10 November 2023. The balance of that affidavit addressed an application pursuant to s 79A and a contempt application. None of these matters have any relevance to the current application.
APPLICABLE LAW
The relevant principles applicable to extensions of time, including in which to file an appeal were identified by McHugh J in Gallo v Dawson (1990) 93 ALR 447 at 480 in the following terms:
…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: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92 ; Jess v Scott (1986) 12 FCR 187 at 194 5 ; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872 ; Hughes, at 263 4 ; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524 . It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201 . It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935 :
The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.
As his Honour identified, the purpose of an extension is to ensure that time limits in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) do not work an injustice. But it is not a one-way street. The interests of justice apply with equal force to the respondent as to the applicant. Thus, in exercising its discretion “in the interests of justice” the Court will consider the following:
(a)an explanation for the delay;
(b)the nature of the litigation;
(c)a history of the proceedings including the conduct of the parties;
(d)the prospects of the success of the appeal; and
(e)any prejudice to the respondent.
DISCUSSION
An explanation for the delay
In her affidavit filed 13 August 2024, the applicant says that the time in which to file the appeal expired on 20 December 2023. It did not. It expired on 10 December 2023.
She then says:
4.Due to unforeseen circumstances, e.g., health and safety concerns, dismissal of Review request, Appeal attempts and procedural challenges, I was unable to file the Notice of Appeal within the prescribed 28-day period.
5.I have obtained new crucial evidence that was not available at the time of the original hearing. This evidence significantly impacts the case and supports the grounds for appeal.
6.I encountered delays in obtaining appropriate legal advice due to unavailability of legal aid lawyer since … 2023 which effected my case and ability to present evidence appropriately. Limited legal assistance, unavailability of legal counsel, complexity of the case.
She says her children contacted her after the single expert report, in September 2023, but asked her not to disclose that. This is not an explanation for delay. Either way, she agrees she advised the Magistrate of the same and then says that it impacted on her health. She also says that on 14 November 2023 she experienced a fall due to dizziness which had been affecting her during her visit to Legal Aid the day before.
She says that scans revealed an injury. She further says that the ongoing court proceedings have affected her existing phobias. The medical evidence attached in support is of little weight. One document dated 2023 refers to “? [injury]”, another being an ultrasound scan for pain is dated 2024 and a doctor’s certificate that predates the hearing before the primary judge records she told the doctor that her phobias affected her ability to meet due dates but provides no diagnosis.
The affidavit also refers to her filing reviews, but notes that they were dismissed. The reference to reviews is presumably a reference to the reviews dismissed by the Magistrate and referred to in the reasons as follows:
6.The issue of costs was one of the outstanding issues before the Court for determination on 29 January 2024. Other matters before the Court that day concerned four separate Form 2 Applications which the [applicant] had filed on 4th, 5th, and 7th December 2023. The Form 2 Applications were filed by the [applicant] after the Court had made final orders disposing of the child‑related proceedings on 10 November 2023. The [respondent] filed a Form 2A seeking the applications be dismissed with costs.
7.The Form 2 Applications of the [applicant], which I will come to describe in greater detail, appear to be attempts by the [applicant] to appeal the orders made on 10 November 2023, and also include what appears to be a fresh application pursuant to section 79A of the Family Law Act (1975) (the Act) to set aside various final property settlement orders which were made some time ago.
One of the reviews would appear to challenge the 10 November 2023 orders, while the others related to a reconsideration of the final orders made 26 March 2021, a contravention application, a recovery order and another seeking “compensation”. It is unexplained why the applicant filed reviews when she well knew from past experience that she was required to file a Notice of Appeal, having done so following the initial orders made on 26 March 2021, only to be subsequently abandoned. In that respect, that Notice of Appeal was also out of time, having been filed on 4 November 2021. Notwithstanding her reviews having been dismissed on 29 January 2024, there is no explanation as to why she did not then seek an extension.
The affidavit also refers to an appeal against that dismissal which was heard by Tree J on 5 August 2024 which was dismissed. A review of his Honour’s judgment reveals the subject matter to be a reinstatement hearing related to an appeal against an order for costs.
I am not satisfied that the applicant has adequately explained the delay.
The nature and history of the litigation
I have referred above to the nature and history of the litigation. If the applicant were granted leave to extend the time in which to file the appeal, it would result in further litigation in relation to these children, one of whom would be over the age of 18 by the time of hearing and one closely approaching that age.
The applicant has a long history of failing to comply with directions. I have no confidence that would change, leading only to further delay and cost if the application were granted.
The prospects of success of the appeal
Accepting for the moment that the applicant is not legally qualified and that no Summary of Argument has been filed in support, none of the grounds would appear to demonstrate any merit.
One of the grounds is not recognisable as a proper ground of appeal in that it fails to identify the actual error (Ground 2), another in so far as it refers to a change in the law is incompetent (Ground 7), in relation to another neither the ground nor the affidavit (ignoring the hyperbole in the affidavit) identify the critical evidence that was not considered (Ground 1). Ground 5, which seems to address procedural fairness issues, is unsupported in the affidavit by the facts or matters that would establish an arguable ground. None of the grounds seek to engage with the primary judge’s reasons or point to error in the primary judge’s reasoning.
I am not satisfied that any of the grounds have merit.
Prejudice
In circumstances where the appeal is absent merit, then there can be no prejudice to the applicant. Equally in those circumstances, it would be highly prejudicial to the respondent if leave were granted to permit an unmeritorious appeal to proceed.
DISPOSITION
For the above reasons, leave to extend time in which to file an appeal will be refused.
COSTS
In the event the application was dismissed, the respondent sought his costs assessed in the sum of $5,000.
The applicant contended that she had limited financial means, albeit I note that impecuniosity is not a basis to refuse to make a costs order (Nada & Nettle (Costs) (2014) FLC 93-612).
The applicant has been wholly unsuccessful, and I am satisfied the circumstances justify a costs order in the amount sought by the respondent.
Accordingly, I will order the applicant to pay the respondents costs assessed in the sum of $5,000. Such sum to be paid within 3 months.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 4 October 2024
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