Pannett and Crain (No. 2)
[2018] FamCAFC 141
•3 August 2018
FAMILY COURT OF AUSTRALIA
| PANNETT & CRAIN (NO. 2) | [2018] FamCAFC 141 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where this is the applicant’s second application for an extension of time in which to file his Notice of Appeal – Explanation for the delay – Merits of the proposed appeal – Application dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) s 117(4) Family Law Rules 2004 (Cth) r 22.03 Legal Aid Commission Act 1979 (NSW) s 57 |
| Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 De Winter and De Winter (1979) FLC 90-605 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Gillard & Gillard [2015] FamCAFC 169 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Pannett & Crain [2018] FamCAFC 99 R and R: Children’s Wishes (2000) FLC 93-000; [2000] FamCA 43 |
| APPLICANT: | Mr Pannett |
| RESPONDENT: | Ms Crain |
| INDEPENDENT CHILDREN’S LAWYER: | Kathryn Renshall Lawyers |
| FILE NUMBER: | PAC | 5431 | of | 2015 |
| APPEAL NUMBER: | EA | 62 | of | 2018 |
| DATE DELIVERED: | 3 August 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 26 July 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 March 2018 |
| LOWER COURT MNC: | [2018] FCCA 1341 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Hernandez solicitor |
| SOLICITOR FOR THE RESPONDENT: | Forshaw Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Renshall solicitor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kathryn Renshall Lawyers |
Orders
The Application in an Appeal filed on 13 June 2018 is dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pannett & Crain (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 62 of 2018
File Number: PAC 5431 of 2015
| Mr Pannett |
Applicant
And
| Ms Crain |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 13 June 2018, Mr Pannett (“the applicant”), seeks an extension of time in which to file a Notice of Appeal against parenting orders made by Judge Harman on 28 March 2018.
In those proceedings, the primary judge ordered that the parties’ child, who was born in 2010, was to live with her mother, Ms Crain (“the respondent”), who was to have sole parental responsibility for her. Pursuant to Order 4, the child was to spend no time and have no communication with the applicant. Further, the applicant was restrained from contacting the mother or the child by any means whatsoever or approaching within 100 metres of any place of employment, school or vacation care involving them.
Pursuant to r 22.03 of the Family Law Rules 2004 (Cth) any appeal from that decision had to be filed within 28 days after the day of the order appealed from – in this case on or before 26 April 2018 (25 April 2018 being a day on which the Registry was closed). The applicant did not do so.
On 3 May 2018, the applicant filed an Application in an Appeal seeking an extension of time in which to file a Notice of Appeal. Although the primary judge’s reasons were given ex tempore immediately at the conclusion of the hearing, a copy of the settled reasons was not available to the applicant and, as a result, he was unable to frame his grounds of appeal.
That application came before me on 24 May 2018. The settled reasons only became available to the parties on that day and, quite properly, neither the respondent nor the Independent Children’s Lawyer (“ICL”) opposed the applicant being granted a reasonable period of time to prepare and lodge a Notice of Appeal, noting that he was acting for himself. Consequently, I ordered that the time for filing a Notice of Appeal be extended up to and including 14 June 2018 (Pannett & Crain [2018] FamCAFC 99).
Again, the applicant failed to file a Notice of Appeal by that date. Instead, he filed the present application, seeking a further extension of time. The application was opposed by the respondent and by the ICL.
The affidavit in support of this application simply asserts that the Salvation Army was unable to assist with the drafting of the appeal and that an application had been lodged with the Law Society Pro Bono Scheme for pro bono assistance.
The applicant also indicated that he had filed an application with the Legal Aid Review Committee on 1 June 2018 appealing against the refusal by the Legal Aid Commission to provide legal aid. The Court was informed by writing on 30 July 2018 that the appeal was unsuccessful. The proceedings do not need to be further adjourned (see s 57 Legal Aid CommissionAct1979 (NSW) and there is no prospect of paid legal assistance for the applicant.
Nonetheless, with the assistance of a lawyer from his local church, the applicant prepared a proposed Notice of Appeal.
The principles to be applied
The principles to be applied in applications for extensions of time are set out in the well-known case of Gallo v Dawson (1990) 93 ALR 479 at 480:
…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 necesasary 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.
The hearing of such an application involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequence for the parties of the grant or refusal of leave and the merits of the appeal. The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the rules will work an injustice.
Explanation for the delay
A significant part of the delay in bringing the present application is explained by the late provision of the settled reasons of judgment. An order was made on 24 May 2018 that the applicant have three weeks to file a Notice of Appeal. That was a reasonable response to the difficulties which the applicant was then facing.
When this application first came before me on 28 June 2018, despite the period of time that had elapsed since the reasons became available to him, he did not yet have a draft Notice of Appeal. The matter was adjourned until 26 July 2018 without objection for him to try again to seek assistance in drafting a Notice of Appeal. However, by that date, more than 28 days had passed since the original orders were made extending time in which to file a Notice of Appeal.
The explanation for the delay is that, as noted above, the applicant had approached the Salvation Army, Legal Aid Commission and Law Society Pro Bono Scheme to seek assistance in preparing his appeal. That is some explanation of the delay but I do not regard it as comprehensive or particularly compelling.
I accept that the applicant faces all the difficulties that litigants in person do face and whilst some latitude can be given to such litigants in appropriate circumstances, that is no warrant for ignoring the rules.
Merits of the proposed appeal
I turn then to the merits of the proposed appeal. In order to put the grounds of appeal in some context, it is necessary briefly to turn to the primary judge’s reasons.
The primary judge found that during the relationship, the applicant had been persistently violent towards the respondent. The applicant accepted that such violence had occurred but denied that it took place in the presence of the child or was directed to her. In any event, the applicant’s case was that whatever his behaviour had been, he had significantly reformed. The primary judge dealt with that submission in the following manner:
103.In response to questions from Counsel for [the mother], the Family Report Writer made clear that to have any confidence in proceeding forward with the reintroduction of [the child]’s time to the father, there having been now a period of nearly two years of no time or communication, that the Court would require reasonable confidence that the father’s attitudes and behaviours have “radically altered” for it to be worthwhile to [the child].
104.It was then indicated that those radical changes would require:
a)The cessation of behaviour that is controlling, whether purposive or otherwise;
b)An acknowledgment of or insight into the impact of behaviour past, present and future;
c)A positive attitude towards [the mother] so as to allow the child to be loyal to both parents rather than required to take sides; and
d)The father’s ongoing participation in counselling, treatment or other therapy.
105.They were identified as the main, but not necessarily only, issues that require demonstration.
106.The Family Consultant was then shown Exhibit A6 and that opined above. The Family Consultant indicated that, on the basis of that communication between community corrections, presently engaged with the father, and the psychologist, recently engaged with by the father, and that communication having occurred only eight weeks ago, that it gave no confidence that the father had engaged in any significant change of behaviour or attitude.
His Honour identified the risk to the child as follows:
143.However, the more readily foreseeable harmful outcome is damage to [the child] of an emotional fashion caused by her exposure to behaviours which, in [the mother]’s evidence, are described as poor role modelling and, adapted by the Family Consultant, as behaviour which is inherently damaging to her self-esteem, behaviour which may induce in her the very same anxieties that those behaviours have induced in [the mother], (there being no evidence of prior suffering of any anxiety condition nor any evidence to counter [the mother]’s evidence of a significant abatement of her anxiety post-separation).
This led to his Honour concluding:
192.In this case, for this child to practice a relationship with both parents would expose her to an unacceptable risk. On that basis there must be leeway given, either the right to relationship bends, or the child’s right to safety yields. The latter cannot and should not, indeed the legislation makes clear that it is so.
The judgment therefore dealt with serious issues and had a significant impact. Pursuant to the orders, the child will have no relationship with the applicant whatsoever. That is something that must be taken into account.
There are four proposed grounds of appeal:
1.The learned trial judge erred on the facts, namely;
a)The apprehended violence order had expired prior to the family report interview (ie there was no current AVO at the time of trial)
b)The child was not present (and had not yet been born) during the incident whereby I hit the mothers car with a baseball bat.
c)The child did not see or hear assaults of family members, the smashing of glasses or motor vehicles.
2.The learned trial judge failed to afford me precedural fairness as follows:
a)As an unrepresented litigant I failed to understand the trial precedure and as a result failed to tender evidence relied on during my cross examination of the mother.
b)Medical records were not exhibited.
3.The learned trial judge’s decision was plainly unreasonable or unjust in that the orders provide no time with my daughter and no pathway to progress to spending time with her, even on a supervised basis.
4.The learned trial judge failed to take into account a material consideration namely the views of the child (wanting to see me).
(As per the original)
Ground 1
The relevance of Ground 1(a) is that the Family Report writer did not observe the child with the applicant.
I was informed, without objection, that the Family Report writer recorded that she could not do so because she considered, perhaps wrongly, that Order 4 of the orders of the primary judge made on 1 August 2016 required that there be no contact between the child and the applicant. It appears that the relevant order suspended any orders which provided for the child to spend time or communicate with the applicant but did not go further and prevent any contact.
At [177], his Honour said:
177.The relationship between [the father] and [the child] was not able to be assessed by the Family Consultant, but a glimpse is given by the child’s enthusiasm and what is suggested is her disappointments that she would not be meeting with her father that day, albeit as a consequence of the prohibitions contained within the family violence Order.
It appears that his Honour was mistaken, as the apprehended violence order (“AVO”) had expired on 14 June 2017. However, as [179] to [181] make it clear, his Honour ultimately did not rely upon an AVO to make the findings of violence. Rather, he relied upon the direct evidence of the actual events themselves. Therefore, the only significance of the AVO in his Honour’s reasons is to explain why the child was not seen with the applicant. The child was not seen with the applicant but for a different reason. That factual error is therefore not material to the orders made and this aspect of the ground must fail (De Winter and De Winter (1979) FLC 90-605).
Further, the primary judge proceeded on the basis that the child was enthusiastic to see the applicant. It is not at all obvious that any observation by the Family Report writer of the child with the applicant would lead to a more favourable report than the one that was taken into account.
As to Grounds 1(b) and (c), the applicant referred to [230] of his Honour’s reasons, which states:
230.Importantly, however, this young lass … at seven years of age has experienced significant disruption and traumas in her life. She has, I am satisfied, been exposed to significant family violence and certainly exposed within the definition contained within section 4AB(4) of the Act to the sequela of family violence. She has overheard derogatory comments, if not directly involved in such statements. She has seen or heard assaults of family members, assaults, again, taken in its broadest context. She has provided comfort and assistance to her mother after she has been the subject of those behaviours. She has, no doubt, seen, the smashing of glasses, motor vehicles or other things, the cleaning up of the site where property has been damaged. She has been present and presented to Police Officers, Departmental Officers and the like. She has, most assuredly, been exposed to family violence.
(Emphasis added)
It is useful also to quote the next three paragraphs of his Honour’s reasons:
231.That disadvantage means that one must exercise some real caution, be conservative in the path forward from here, as opined by the Family Consultant. If there was confidence that there could be significant change that would ensure a sustainable change of attitude and behaviour, some forward progress might be made. But I have no such confidence, regrettably, particularly for [the child], who will, no doubt, be disappointed by the absence of a relationship in the future, but it is, I am satisfied, on the basis of accepting that there is an unacceptable risk of the resumption of time.
232.Neither parent identifies as Aboriginal and Torres Strait Islander, nor does [the child].
233.The attitude of the parents is already adequately addressed above, as is family violence, which I have canvassed as a separate issue, not to consume the determination of this child’s best interests, but as it is the basis for the suggested finding of unacceptable risk which has, in fact, been accepted and made.
These paragraphs must be seen in the light of the following discussion, which appears earlier in his Honour’s reasons:
143.However, the more readily foreseeable harmful outcome is damage to [the child] of an emotional fashion caused by her exposure to behaviours which, in [the mother]’s evidence, are described as poor role modelling and, adapted by the Family Consultant, as behaviour which is inherently damaging to her self-esteem, behaviour which may induce in her the very same anxieties that those behaviours have induced in [the mother], (there being no evidence of prior suffering of any anxiety condition nor any evidence to counter [the mother]’s evidence of a significant abatement of her anxiety post-separation).
144.A harmful outcome for this child also potentially arises through Orders for no time or communication as already discussed by the Family Consultant through her evidence above. However, the harmful outcome to this child from time occurring is, I am satisfied on balance, greater. Those risks are real and life-lasting. They are consistent with that which is set out in the Family Violence Best Practice Principles to which the Family Consultant has specifically referred and adopted portions thereof.
Returning then to [230], the only sentence to which the applicant objected was the third last sentence. Even if that sentence is entirely inaccurate, his Honour’s findings would not be otherwise weakened because the remaining considerations would amply support the order made. It is difficult to see that this ground has reasonable prospects of success.
Ground 2
It is clear the primary judge spent some time explaining the rules of process and procedure to the applicant. His Honour recorded this at [66] of his reasons. Indeed, the applicant told me that the need to tender documents was discussed with him at the outset by the primary judge but it was too much for him to take in.
Obviously, some medical records of the respondent were in evidence (see [42] and [182]). The applicant’s complaint must therefore be that there were additional records that he wished to have before the court. However, the primary judge was not to know this unless the applicant said so. It is not suggested that he did. It is therefore difficult to discern any error on the part of the primary judge.
Ground 3
The primary judge clearly considered closely whether or not there should be orders providing for some form of supervised time, bearing in mind his Honour’s findings that the child wished to see the applicant and “ expressed some enthusiasm towards a relationship with her father” (at [107]). The primary judge was also cognisant of the risks to the child, but also the grief that she would suffer through losing any relationship with the applicant (at [144], [154] – [158]).
As to supervision, his Honour was well aware that long term supervision was not in the interests of the child ([163] – [171]). This led his Honour to conclude:
235.I am conscious that if there is not the confidence that the Family Report Writer suggests is necessary to move forward, even to supervised time, that to make such an Order would verge upon experimentation which would be impermissible and would almost inevitably lead to future proceedings. It would see the mother undermined as to her capacity and functioning, her quality of parenting potentially being impacted.
Such a conclusion indicates that his Honour engaged in the balancing act required under the Act. The finding his Honour made was supported by the evidence to which his Honour referred and was therefore open on the evidence. Challenges to the weight given to the particular factors face a high bar: Gronow v Gronow (1979) 144 CLR 513.
I am of the opinion that this finding was one that was open on the evidence. There is no basis for suggesting that it is manifestly unjust or plainly unreasonable not to make an order for indefinite supervised time when there has been a finding that the applicant poses a long term unacceptable risk of harm. This is particularly so, given the primary judge’s findings as to the unsatisfactory nature of supervised time in this case, let alone long term supervised time. I am not satisfied that this ground, on its own, has sufficient merit to justify an extension of time.
Ground 4
Plainly enough, the primary judge gave extensive consideration to the views of the child – see [44], [150], and [206] – [214] in addition to the paragraphs I have already quoted. This ground must therefore fail.
The obligation under the Act is to consider the child’s views, not simply to follow them (Bondelmonte v Bondelmonte (2016) 259 CLR 662 at [34]; see also, for example, R and R: Children’s Wishes (2000) FLC 93-000 at [44] and Gillard & Gillard [2015] FamCAFC 169 at [81] and the cases discussed therein).
Taking these matters into account, I am of the opinion that the proposed appeal has poor prospects of success.
Conclusion
Taking the weak prospects of success of the appeal into account, along with the less than complete explanation for the delay and the fact that this is the applicant’s second application for an extension of time in which to file his Notice of Appeal, but also weighing that against the serious nature of the orders under appeal, I am not satisfied that it is in the interests of justice that an extension of time be granted.
Costs
The respondent did not seek an order for costs in the event that the application was dismissed.
The ICL, in accordance with her obligations under the grant of Legal Aid, sought an order for costs in the sum of $1,800. Whilst it is true that the application was wholly unsuccessful and that it was the second such application for an extension of time, there was no challenge to the suggestion by the applicant that he has only just started work (just having done a two day trial).
I am not satisfied that it is appropriate to make an order for costs in those circumstances. Any consideration of whether there would be hardship for the purpose of s 117(4) of the Family Law Act 1975 (Cth) does not arise. There will therefore be no order as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 3 August 2018.
Legal associate:
Date: 3 August 2018
0
10
3