PALMER & HAMMER
[2011] FamCAFC 48
•10 March 2011
FAMILY COURT OF AUSTRALIA
| PALMER & HAMMER | [2011] FamCAFC 48 |
| FAMILY LAW - APPEAL – CHILDREN – Relocation – Where the Federal Magistrate allowed the mother to relocate the child’s primary place of residence – Where the father’s time with the child was limited due to the geographical distance between the parent’s homes – Where it was said the best interests of the child would be best met in the mother’s care and where the mother had support, permanent employment and where the mother was able to attend to her sick mother – Where it was considered the father’s relationship with the child could be sustained. FAMILY LAW - APPEAL – Application to extend time to appeal – Where the father’s solicitors attempted to file a notice of appeal in the incorrect registry on the last day for filing within time – Where the notice of appeal was not accepted for filing – Delay adequately explained – Leave opposed by the mother – Where the only prejudice to the mother is inconvenience and the possible costs of an appeal – Where dismissal of the father’s application would prevent him from appealing the orders – Where the father would be prejudiced – Where there are considerable arguments to be made on appeal – Application allowed. FAMILY LAW - APPEAL – Application for expedition – Where there has been a radical change in the parenting arrangements of the child – Where there are significant costs to the father in facilitating spending time with the child – Appeal expedited. FAMILY LAW - 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 Palmer |
| RESPONDENT: | Ms Hammer |
| FILE NUMBER: | NCC | 1669 | of | 2007 |
| APPEAL NUMBER: | NA | 10 | of | 2011 |
| DATE DELIVERED: | 10 March 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 10 March 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 January 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 14 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Dura |
| SOLICITOR FOR THE APPELLANT: | Rice More & Gibson Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Kelly |
| SOLICITOR FOR THE RESPONDENT: | Bridge Street Lawyers |
Orders
The father have leave to file a notice of appeal on or before 4pm Monday, 14 March 2011.
The hearing of the appeal be expedited.
IT IS ORDERED BY CONSENT:-
That the parties’ costs of and incidental to the applications be reserved to the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym Palmer v Hammer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 10 of 2011
File Number: NCC 1669 of 2007
| Mr Palmer |
Appellant
And
| Ms Hammer |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
Two applications were filed by the father in this matter on 18 February 2011. The first is an application for leave to appeal out of time. The second is an application for expedition.
Counsel for the mother explained that the application for leave to file an appeal is opposed.
Should leave be granted the father wishes to appeal the orders made by Federal Magistrate Lapthorn on 17 January 2011. These orders relate to the parenting arrangements for J Hammer-Palmer (“the child”), born in July 2004. She is six years old.
His Honour’s orders allowed the mother to relocate with the child to L, Victoria, and provided for the child to spend time and communicate with the father. Orders 5 to 8 made specific provisions for this time:
5.That the child spend time and communicate with the father as follows:
(a)On the fifth weekend of each school terms in Melbourne from Friday 6.30pm to Sunday 5.00pm;
(b)From 12 noon on the first day after the child’s last day at school for terms one and three each year until 12 noon on the day immediately prior to the day on which the child is required to return to school for the commencement of terms two and four;
(c)For ten days at the end of the second term each year from 12 noon on the first Monday of the holidays to 12 noon on the tenth day thereafter;
(d)For half of all Christmas school holidays being the first half in even numbered years and the second half in odd numbered years;
(e)By telephone and internet communication at all reasonable times;
(f)Other times as agreed between the parties.
6.That for the purposes of facilitating the father’s time with the child, the mother or her nominee shall meet the father or his nominee at Sydney Airport at the start and end of each period of time spent in order 5(b), (c) and (d).
7.That for the purposes of the father spending time with the child in order 5(a), the mother or her nominee shall meet the father at Southern Cross Railway Station in Melbourne at the start and conclusion of the time spent.
8.That each party bear their own costs in delivering/collecting the child to/from Sydney Airport and Southern Cross Railway Station in Melbourne.
Should leave not be granted the father will be unable to appeal the orders.
History
The mother and father commenced living together in 1998 and separated in 2007. They are apparently first cousins.
The father has a child from a previous relationship. Currently the father does not see his son, although he has recently commenced court proceedings to resume a relationship with him.
On 28 May 2008 final orders were reached by consent. These orders provided that both parties were to have equal shared parental responsibility for the child and that the child was to live with the mother. Pursuant to the order the father had been spending time with the child from Friday afternoon to Sunday afternoon each alternate weekend and for one week in each school holiday period.
Orders were also made permitting the mother to travel to Victoria for periods of up to 4 weeks in cases of family or medical emergencies, upon notice of 48 hours to the father. The order was made as the maternal grandmother, who resides in L was diagnosed with a malignant brain tumour in early 2006.
On 11 October 2011 the mother filed an initiating application seeking orders permitting her to relocate the child’s primary place of residence to L. The mother proposed orders to vary the time the child would spend with the father. It was clear that should the mother be permitted to relocate with the child the child’s time with the father would be limited to periods during the school holidays and at other times in the L area.
In response, the father sought a continuation of the orders made in 2008. He also sought that his time with the child be increased during the Christmas holiday period. Despite the father seeking orders that the child live with him if the mother relocated, the case proceeded on the basis that the mother would not relocate if the child was not permitted to move with her to L.
An application for expedition was granted with the matter being heard on 22 December 2010.
At paragraph 10 the trial judge summarised the issues:
In determining what parenting orders would be in the child’s best interest the court was asked to consider a number of issues the most significant being:
(a)The effect on the mother should she not be permitted to relocate;
(b)The ability of the child to maintain a relationship with her father and maternal grandmother if she was to live in Victoria; and
(c)The desirability of the child developing a closer relationship with the maternal grandmother by living in [L].
Ultimately the Federal Magistrate said:
70.I find that the child’s best interests would be served if she continues to live primarily with her mother. I am also satisfied the mother would be relieved of stress if she was living with her mother and working in permanent employment. Such relief would be of great assistance in her parenting of the child which would have a flow on benefit to the child. The child would also benefit from developing a closer relationship with her maternal grandparents if she and the mother were able to live with them in [L]. The child’s relationship with the father should be able to be sustained given her age and development and the current strength of that relationship. The practical difficulties in moving the child between the two homes whilst significant can be overcome as the mother is confident of assistance from her family. When I weigh all of these considerations I am persuaded it would be in the child’s best interests to live with her mother in [L].
71.I am persuaded the child should spend extended block periods of time with the father during the school holidays as well as mid term weekend. The mid term weekend would need to take place in Melbourne or another place close to [L] so that the child is not burdened with significant travel for only a short period of time with her father. I propose to order the father be responsible for the costs of transporting himself to Melbourne and the mother is to ensure the child is delivered to the father and collected from him at her expense.
72.I am persuaded the child should spend virtually all of the holiday time with the father at the ends of terms one and three and for 10 days at the end of term two. Ordinarily a child should spend holiday time with their primary carer as well as their other parent but in the circumstances of this case I am persuaded the child’s best interests require her to spend as much time with her father as can be realistically arranged. The evidence of Ms [C] was that she would not require the mother to work on weekends so the child would benefit from spending regular time with her mother then. In relation to the Christmas school holidays I am persuaded they should be split equally to enable the child to have block holidays with each parent. The costs associated with school holidays should be met by the mother paying for any transport from [L] to Sydney and return and the father paying for the costs of any transport from Sydney to [A] and return.
Leave to appeal
The father seeks that he be granted an extension of time to file a notice of appeal and an application in an appeal for the hearing of the appeal to be expedited.
The principles referable to such leave applications were discussed in Clivery & Conway [2007] FamCA 1435, where reference was made to the High Court decision in Gallo v Dawson (1990) 93 ALR 479:
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
In the affidavit filed in support of the father’s application for an extension of time his solicitor explains that the parties were advised that judgment would be delivered on 10 January 2011 in Brisbane. Due to the extraordinary weather events in Brisbane this did not occur.
On 17 January 2011 the parties received a copy of the judgment by way of email.
On 19 January 2011 the solicitor for the husband forwarded a letter to him informing him that should be dissatisfied with the decision, an appeal would need to be filed within 28 days, that date being 14 February 2011.
The next day the father spoke with his solicitor and informed him that he would be discussing with his mother the possibility of lodging an appeal as he was dissatisfied.
Subsequent to this discussion the father informed his solicitor that he did wish to appeal the decision of the Federal Magistrate. A brief to advise was forwarded to counsel on 28 January 2011.
On 8 February 2011 the advice from counsel was received. On same date the solicitor requested counsel draft the necessary documentation to facilitate the filing of the appeal.
The required documentation was received on 11 February 2011. On 13 February 2011 the father attended his solicitor’s office to finalise his affidavit. The father’s affidavit was sworn by him on 14 February 2011.
On the last date the appeal could have been filed to comply with the Rules the father’s solicitor telephoned the National Enquiry Centre and said words to the effect of “I wish to lodge an appeal from a decision of Federal Magistrate Lapthorn. Today is the last day for filing, may I send it to the Eastern Regions Appeal Registry by fax for filing and the originals in the DX Mail today. Will the registry file a fax copy?”. The customer service officer is said to have responded “You will need to provide a covering letter with the documents explaining what you have just said to me”. (original emphasis)
On same day the solicitor is said to have sent the Eastern Region Appeals Registry a letter by both facsimile and by post, enclosing the notice of appeal, the application in an appeal, the husband’s affidavit and a cheque for the filing fee.
That afternoon the solicitor phoned the National Enquiry Centre to enquire ask to whether the documents had been filed. The solicitor was unable to speak with a customer service officer as he was transferred to a message call which said “Due to a large number of enquires we are unable to take your call. Please leave a message and we will return you [sic] call within twenty-four hours”. (original emphasis)
On 15 February 2011 the solicitor received a call from the Eastern Appeals Registry and was informed: “I cannot file the documents as they must be filed in the Northern Region Appeals Registry” as this was “a Newcastle matter”. It was further said “As the Judgment was given in Brisbane, the appeal must be filed in the Northern Region Appeals Registry. I can understand your confusion as the matter has a Newcastle file number”. There was then some further communication as to what registry the appeal should have been filed in.
Due to the confusion as to the correct registry to file the material the husband was out of time in filing his notice of appeal and application in an appeal, and it was therefore necessary for him to file this application.
It is obvious that if the solicitor for this husband attempted to file the notice of appeal earlier there would have been no difficulty because the question as to which Registry the appeal should have been filed would have been revealed. The difficulty of course were the late instructions from the father himself.
In the circumstance of this case I consider that the explanation for the delay is entirely explained.
Prejudice
The solicitor for the father submitted the delay in filing the notice of appeal is minimal, with original copies being received and accepted for filing by the Northern Appeals Registry on 18 February 2011.
Although counsel for the mother resists leave being granted it cannot be said that apart from the mother having the inconvenience and possible costs associated with the appeal there is any prejudice to her.
Merits of the appeal
Should leave be granted the father’s proposed grounds of appeal, in summary are that the trial judge;
1.erred in failing to consider or apply the objects and principles of s 60B of the Act;
2.failed to make orders that provided for the child to have substantial and significant time with the father;
3.failed to consider or properly consider s 60CC(3)(e) of the Act;
4.erred in placing the mother’s and the maternal grandmother’s needs before the child’s;
5.erred in affording disproportionate weight on his Honour’s own assumptions;
6.erred in finding that the mother would “be in a better position to parent the child” if she was allowed to relocate with the child;
7.failed to place sufficient weight on whether the orders were reasonably practical, and;
8.failed to consider and make findings as to the benefits to the child in the father’s alternative proposal, that being that the child lives with the father.
The father seeks inter alia the following orders: that the mother’s application be dismissed, that the child live with him, that both mother and father have equal shared parental responsibility, and sets out in the document the times he proposes the child spend with each of them.
Without considering the merits of the appeal any more than is necessary to grant leave to appeal out of time, I am of the view that there are substantial grounds to be argued.
Conclusion
For the reasons already provided I am of the view that in the circumstances leave should be granted.
Expedition Application
Given that the father has been given leave to file his notice of appeal, it is appropriate to consider the other application, which is an application for expedition of the hearing of the appeal.
Counsel for the mother indicated that there were no features of this case that would warrant expedition. Although the Federal Magistrate expedited the hearing, it was correctly observed that was for entirely different reasons.
In support of the father’s application he filed an accompanying affidavit which was sworn by him on 13 February 2011. This affidavit sets out the procedural history of the matter and explains the father’s reasons for making the application.
It is said that since the consent orders were made the mother resided in K and the father in A. The parties have made all the necessary travel arrangements to facilitate the child spending regular time with the father.
The father said that it was his observation:
… that [the child] was well settled in [K] and from her conversations with me she enjoyed the local school and had a wide circle of friends. [The child] and I were developing a very close relationship as a result of regular alternate time spent with me.
Soon after the orders and reasons for judgment were issued the mother, which she was entitled to do, relocated with the child to L. Since that time the father says that he has not spent time with the child. The first time the father will see the child will be on the fifth weekend of this school term from 6.30pm on Friday to 5.00pm on Sunday. The father says that the cost of the flights total $554.00 and he will lose one days wage for that weekend visit.
The father apparently is also in the process of preparing his computer to allow Skype communication with the child.
At paragraph 17 of his affidavit the father said:
I am fearful that with such a large distance, the logistics and cost will be prohibitive to my maintaining a meaningful relationship with [the child] and that unless my Appeal is determined expeditiously that notwithstanding the success of my appeal, the longer [the child] remains in [L], the more disruptive it will be for her if she has to return to live in [K] or [A].
The father claims that in order for him to spend meaningful time with the child in accordance with the orders of the Federal Magistrate, he will have to take off time from work and will lose seven and a half weeks wages.
It is said that the father was advised by the Eastern Appeals Registry that unless expedited the appeal would not be heard until next year. The father was advised that should the appeal be expedited the appeal was likely to be heard some time this year. That is certainty correct.
The father is said to have provided instructions to his solicitor to make an application for a stay of the orders and this application is in the process of being prepared and filed.
Conclusion
Having considered the circumstances of the case, I am of the view that this matter should be expedited.
I have been advised by the Northern Appeals Registrar that upon the father filing a draft appeals index, a date will be provided for a conference with the Registrar and the earliest date possible will be allocated for the hearing.
I would not want to give the impression that this will be in the next short time, the matter will be placed in at the first and best possible date.
Costs
As each counsel submitted, it is appropriate in the circumstances of this case that the costs of and incidental to the applications be reserved to the Full Court.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 10 March 2011.
Associate:
Date: 10 March 2011
0
2
1