Pendleton & Pendleton
[2018] FamCAFC 203
•30 October 2018
FAMILY COURT OF AUSTRALIA
| PENDLETON & PENDLETON | [2018] FamCAFC 203 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the mother sought an extension of time to file a Notice of Appeal against final parenting orders – where all but two of the mother’s proposed grounds of appeal were abandoned – where the remaining two grounds of appeal as stated in the mother’s draft Notice of Appeal enjoy negligible prospects of success – where the mother provided sufficient medical evidence to explain the delay in filing a Notice of Appeal within the requisite time period however provided no adequate reasons for a significant delay of a further five months – where having regard to the principle concerning the desirability of finality of litigation and the history of the parenting proceedings, it would be unfair and unjust to the father and to the children to subject them to a meritless appeal – Application in an Appeal dismissed – mother to pay the costs of the father and the ICL of and incidental to the application as assessed, payable upon the finalisation of current s 79A proceedings in the Federal Circuit Court. |
| Family Law Act 1975 (Cth) s 68L, 94(2D)(a), 94AAA(5), 117(2A) Family Law Rules 2004 (Cth) r 1.14, 22.03 |
| Bant & Clayton [2014] FamCAFC 108 |
| APPLICANT: | Ms Pendleton |
| RESPONDENT: | Mr Pendleton | ||||
| INDEPENDENT CHILDREN’S LAWYER: | Ms Chan, Legal Aid Queensland | ||||
| FILE NUMBER: | BRC | 3479 | of | 2011 | |
| APPEAL NUMBER: | NOA | 66 | of | 2017 |
| DATE DELIVERED: | 30 October 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 26 October 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 May 2017 |
| LOWER COURT MNC: | [2017] FCCA 934 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J. Bunning |
| SOLICITOR FOR THE APPLICANT: | Harrigan Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr J. Streit |
| SOLICITOR FOR THE RESPONDENT: | Family Law Solutions |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Chan, Legal Aid Queensland |
Orders
The Application in an Appeal filed on 15 November 2017 is dismissed.
Subject to Order (3), [the mother] is to pay the costs of each of [the father] and the Independent Children’s Lawyer of and incidental to the application in the respective sums agreed or, failing agreement, in the respective amounts assessed.
The operation of Order (2) is suspended until the current s 79A proceedings pending in the Federal Circuit Court between the parties are finalised by settlement, discontinuance or judgment.
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 Pendleton & Pendleton 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 BRISBANE |
Appeal Number: NOA 66 of 2017
File Number: BRC 3479 of 2011
| Ms Pendleton |
Applicant
And
| Mr Pendleton |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 9 May 2017 Judge Coates made parenting orders[1] in the Federal Circuit Court of Australia following a trial, concerning the two children of Ms Pendleton (“the mother”) and Mr Pendleton (“the father”) namely: J (born 2005) and K (born 2008).
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 94AAA(5) of the Act and r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) combine to prescribe a 28 day time period from the date of orders for the filing of a Notice of Appeal. That period expired on 6 June 2017. However it was not until 15 November 2017, more than five months after the expiration of that appeal period, that the mother filed an Application in an Appeal seeking an extension of time in which to appeal from those orders.
Pursuant to s 94(2D)(a) of the Act an application to extend time to appeal may be heard and determined by a single judge of the Appeal Division. The application was listed for hearing before Murphy J on 12 February 2018. However, in the event the parties consented to an order adjourning the application pending finalisation of a further Application in a Case the mother had filed in the Federal Circuit Court on 29 January 2018.
The relisting of this application comes about as a result of that application in the Federal Circuit Court being dismissed on 6 September 2018.
The application is opposed by each of the father and by the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the children’s interests in the proceedings pursuant to s 68L of the Act.
Principles to be applied
The power to extend time is provided in r 1.14 of the Rules. The principles governing the discretion to exercise that power are well established in many decisions of the Full Court. Some recent examples include Bant & Clayton [2014] FamCAFC 108; Chong & Chong [2016] FamCAFC 211; Manotis & Manotis (No 2) [2016] FamCAFC 232; Harrison & Ward [2017] FamCAFC 99; McMillan & McMillan [2017] FamCAFC 88 and Harrison & Ward [2018] FamCAFC 136.
Each of those decisions place emphasis upon the well-known judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480 (“Gallo v Dawson”) in which his Honour said of an equivalent rule of court:
…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 … 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 … 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 … 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 … 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…
It can be seen that in Joshua v Joshua (1997) FLC 92-767 at 84,440 that Lindenmayer J emphasised, again with reference to McHugh J’s decision in Gallo v Dawson, the significance of the consideration as to whether the applicant establishes a substantial issue to be raised on appeal. There, his Honour observed:
…the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation…
The determinative question then, on this application, is whether an extension of time is necessary to enable the Court to do justice between the parties and to prevent injustice – in this connection the Court must weigh the prima facie entitlement of the respondent to retain the benefit of the judgment and the desirability of finality of litigation (see Tormsen and Tormsen (1993) FLC 92-392).
Context of the application
(a) History of litigation
This matter has an unfortunate, complex and lengthy litigation history. Such is the nature of the history, about to be discussed in a summary way, that the desirability for there to be finality of litigation comes into sharp focus.
Parenting proceedings commenced in the then Federal Magistrates Court in 2011. Those proceedings progressed to the stage that on 20 August 2012 interim consent orders were made by Federal Magistrate Coates (as his Honour then was). Those orders provided, in summary, for the parents to have equal shared parental responsibility; for the children to live with their mother; and regular weekly time for the children with their father.
On 18 December 2012 the parties entered into final consent orders made by Federal Magistrate Coates. With respect to parenting matters the parents were to have equal shared parental responsibility and the children were to live with their mother and to spend time with their father on a regular basis.
Despite the order for equal shared parental responsibility the mother, in early 2013, relocated the children without the father’s consent. The father brought contravention proceedings in which it was found that the mother had contravened the order for the children to spend time with the father, without reasonable excuse.
Indeed there were a series of applications for contravention of parenting orders brought by the father in 2013. These culminated in the father commencing fresh proceedings for parenting orders on 15 August 2013.
On 2 September 2013 Judge Coates found that the mother had, without reasonable excuse, contravened the orders made on 18 December 2013 in that she did not make the children available to spend time with the father. Further orders were then made for the children to spend time with their father.
On 12 December 2013 interim consent orders were made to vary the earlier orders.
There can be no doubt that the father’s reinstitution of parenting proceedings in August 2013 was precipitated by the mother’s repeated failures to facilitate the children spending time with the father.
Ultimately those proceedings were again resolved by way of final parenting orders made by consent, which occurred on 10 September 2014. Those consent orders provided for the parties to have equal shared parental responsibility; for the children to live with the mother; and for the children to spend nine nights with the father over a four week cycle plus half of all school holidays.
It is unnecessary for present purposes to detail each of the many conflicts that have occurred between the parents, including with respect to financial matters. All that need be said is that the father again sought to reinstitute parenting proceedings by way of an Initiating Application filed by him on 29 March 2016. The filing of that application followed the mother’s withholding of the children from spending time with the father (contrary to the orders which had been made on 10 September 2014) and, despite an order for equal shared parental responsibility, the mother’s unilateral removal of the children from their school, School X, and their enrolment at School Y.
An interim hearing occurred with respect to those proceedings before Judge Coates on 29 July 2016 when yet further interim orders were made.
Those proceedings came to trial before Judge Coates on 11 and 12 April 2017. As already noted, his Honour made the subject orders on 9 May 2017 and then delivered reasons. The orders made by Judge Coates provided, in summary, for:
a)The father to have sole parental responsibility for both children;
b)The children to live with the father;
c)The children to have no contact with the mother for a period of six months from the making of the orders;
d)Following that moratorium of time, the children were to commence spending supervised time with the mother each alternate Sunday for a period of two months – thus for four visits in total; and
e)Following that period of supervised time, the children were to spend unsupervised time with the mother for three nights each alternate weekend during the school term and for half of all school holiday periods.
(b) Determination of the trial judge
It can readily be understood that the orders of the trial judge effected a profound change to the children’s parenting arrangements. From living primarily with their mother as they had always done the children, then aged 11 and 8 years respectively, commenced living primarily with their father.
It bears emphasis that as confirmed with her counsel on the hearing of this application, the mother does not seek to challenge on appeal in any way any of the findings recorded by the trial judge in his reasons for judgment. The findings which can be seen to be central to the trial judge’s determination, expressed in summary and paraphrased form, include:
a)The situation the children were in (then in their mother’s primary care) presented a grave risk to them (at [12]);
b)The extensive loss of school time for the children in their mother’s care – relevant to the mother’s capacity (at [47] – [50] and [65] ff);
c)The mother’s failure of parental capacity in keeping the children away from school (at [70]);
d)The inability of the parents to communicate (at [74] ff);
e)Family violence in the mother’s household between the mother and her partner, Mr B, to which the children had been exposed (at [95]);
f)That Mr B imposes himself on the children in place of their father (at [100]);
g)The mother’s inability to facilitate a relationship between the children and the father (at [105] ff);
h)The malevolent involvement and influence of Mr B upon the mother (at [150] – [155]);
i)That J’s situation is of “grave concern” (at [158]);
j)The evidence of the family consultant as to the significant risk to J’s mental health (at [165] ff);
k)The evidence of the expert psychiatrist as to the risk for J (at [169] and [170]);
l)The expert psychiatrist’s opinion that both children may be significantly psychologically compromised (at [172]);
m)The expert psychiatrist’s opinion that by reason of Mr B’s beliefs; adult matters being frequently discussed in the mother’s household; violence between Mr B and the mother in that household – J was living in a toxic environment potentially harmful to her and the expert psychiatrist had identified issues of risk for both children – but especially for J (at [173] – [178]);
n)Whilst a decision to change residence will involve a deal of pain for J, the risks of leaving J (in the mother’s household) may mean she develops psychiatric conditions “later in life and sooner rather than later according to the experts” (at [192]);
o)The risk is that if J remains in the mother’s household not only will her relationship with the father be irreparably damaged, but she will possibly develop mental health problems because of the toxic atmosphere in the mother’s household (at [198]);
p)Because the findings of fact accord with the expert evidence supportive of a change of residence an order should be made changing residence (at [200]);
q)It would be futile to conclude that the parents could make decisions together in exercising parental responsibility (at [201] and [202]);
r)There is no history that the mother could ever facilitate the children having a relationship with the father (at [208]); and
s)The expert evidence confirmed the children ought not be separated (at [225]).
It bears repeating that the mother does not seek to challenge any of the above findings on appeal.
It also bears emphasis that the subject orders, effecting profound change for the children in terms of their parentings arrangements, were made as long ago as 9 May 2017. As canvassed in the course of argument, even if the mother were granted leave to appeal it is unlikely that any appeal could be heard before the middle of next year. Moreover, as counsel for the mother acknowledged, if the appeal enjoyed success it would result in the proceedings being remitted for rehearing. The prospective time involved in the processes referred to gives proper context to the factor of weighing the finality of litigation as a consideration.
Is there a substantial issue to be raised on appeal?
The mother’s draft Notice of Appeal annexed to her solicitor’s affidavit filed in support of this application identifies eight separate grounds of appeal, some with additional sub-grounds. Further, that document identifies all of the orders made on 9 May 2017 as being the subject of challenge and proposes an order being made by the Full Court for the proceedings to be remitted for rehearing in the Federal Circuit Court.
However, in the course of argument of the application, counsel for the mother confirmed that the mother abandoned all of these stated grounds, save for Grounds 2 and 4.
Grounds 2 and 4 are expressed in the following terms:
2. The learned Judge gave no Reasons for Judgment in relation to the Orders that he made at Order 7 of the orders and in particular:
a.The learned Judge’s reason as to why Order 7 was made is only found at paragraph 224 of the Reasons for Judgment;
b.The term used by the learned Judge at paragraph 224 being ‘the usual Order’ is not a term used anywhere in the Family Law Act;
c.In making the Order that he did at Order 7, the learned Judge failed to consider in any way, any of the indicia as set out in Section 60CC of the Family Law Act;
d.There was no evidence before the learned Judge to support the Order that he made at Order 7 of the Orders and in particular no consideration as set out in point (c) above as to why that Order served the best interest of the children;
And the learned Judge’s failure to properly consider the basis upon which he made Order 7, with reference to the relevant considerations under Section 60CC and provide proper Reasons for same, based upon the evidence available to him, is an error of law.
4.The learned Judge’s failure to Order a further Family Report in the matter considering that the Family Report was over twelve months old, lead the learned Judge into an error of law.
Whilst Ground 4 was not formally abandoned it can fairly be observed that it was not a ground argued with any conviction. The mother’s Summary of Argument does not even make mention of it, let alone infuse it with argument; and in oral argument counsel for the mother simply referred to the fact that at the trial the mother had sought that yet a further updated family report be obtained. Beyond that, there was no argument addressed to demonstrating how the trial judge could be in error. In the absence of any argument to substantiate this ground it can readily be concluded that it has no merit.
Ground 2, despite the references in it to “Order 7” must be understood as referring to Order 14, containing the order for the children to spend alternate weekends with the mother and half school holidays.
Counsel for the mother confirmed in the course of oral argument that Ground 2 was the real focus of the mother’s appeal. I interpolate here to observe that if this were the only ground pursued on appeal and which succeeded then, given that this ground does not embrace any challenge to anything other than the ordered time with the mother, it is difficult to envisage that alone as justifying the orders as a whole being set aside; or that there would be a rehearing of the proceedings other than for the redetermination of the question of the children’s time with the mother. That is, there being no challenge on appeal to any of the central findings earlier summarised; nor to any orders other than the time order, any rehearing would likely be in narrow compass, directed only to the question of the children’s time with the mother.
In any event, the argument as to this ground stands on the footing that all the trial judge said to support the order made for alternate weekend time appears at [224] of the reasons for judgment where his Honour said:
What has come to be regarded as a usual order, that the children spend every alternate weekend with the mother and half holidays, will then go into place.
The first and fundamental point of emphasis in addressing this argument is that, as counsel for the mother confirmed on this hearing, at trial the mother advanced no specific proposal for time in the event that it was determined that the children should live primarily with the father. That is, whilst the mother opposed the children’s change of residence, she did not advance any firm or specific proposal for time in the event that such change was determined to be in the children’s best interests. As has often been observed about the test of adequacy of reasons, the circumstances of the case are a fundamental consideration (see, for example, Sun Alliance Insurance Ltd v Massoud [1989] VR 8) and the relevant circumstance here is that the mother advanced no relevant proposal for time. Consequently it cannot be concluded that justice is not seen to be done to the mother’s case when the fact is that no relevant proposal was advanced by the mother for the trial judge’s determination.
Second, it would be a distortion of the reasons for judgment to read [224] in isolation from the balance of the reasons as a whole. It would be unnecessarily repetitive to extract all that is said in the reasons relevant to this: it is sufficient to reiterate the central findings earlier summarised. Whilst it is true that [224] is the specific observation or finding made by the trial judge about time, subsequent to the moratorium and supervision period imposed, that paragraph takes its context from all that precedes it, including the discussion of the history of the dispute; the parents’ inability to communicate and, most importantly, the findings of risk to the children in the mother’s household. Having addressed that risk by orders placing the children in the primary care of the father; and imposing a moratorium of time with the mother for six months; and then a further two month period of supervised time; properly construed all the trial judge was expressing in [224] was reference to a suitable order to meet the children’s interests being an order commonly implemented as enabling a meaningful relationship between children and parents to be maintained. Nothing is advanced by the mother on this application to demonstrate that an order in these terms was somehow beyond the trial judge’s discretion or contrary to the evidence in the case.
What the trial judge had to do was the difficult task, necessarily involving an element of speculation, about moving the children from the mother’s primary care to the father’s care. Undoubtedly framing the time orders, particularly after a moratorium period and then a supervision period, involved a degree of speculation, intuition and even guesswork (see, CDJ v VAJ (1998) 197 CLR 172).
In my judgment Ground 2, and thus the mother’s proposed appeal overall, enjoys negligible prospects of success. I do not consider that Ground 2 therefore constitutes a substantial issue to be raised on appeal. If in future the mother seeks an alteration of time arrangements in the children’s best interests an application can be brought, on proper grounds, provided of course the mother demonstrates a material change in circumstances or that it is in the best interests of the children for a different regime of time to apply.
Is there an adequate explanation for delay?
The onus lies upon the mother as applicant to explain not only the failure to file a Notice of Appeal within the prescribed 28 day period from the date of orders made on 9 May 2017, that is, the period ending on 6 June 2017; but also the further period of over five months before the mother filed this application on 15 November 2017.
The mother advances two bases by way of explanation for delay. First, that the stress and emotional turmoil caused to her as a result of orders changing the primary residence of the children, together with a six month moratorium on them spending time with her, denied her the emotional or psychological ability to deal with pursuit of an appeal. Second, that she did not have the financial capacity to obtain legal advice and assistance.
Medical evidence
The mother relies, in addition to her own affidavit about her mental health, upon two medical certificates. One is from her general medical practitioner, Dr G and the other is from Dr P, who I was informed from the bar table is a psychologist.
Dr G’s letter is dated 31 October 2017 and is quoted in full as follows:
31 October 2017
To Whom it May Concern
Re: [Ms Pendleton]
…
[Ms Pendleton] attended myself on 10/05/2017 following the court hearing the previous day in regard to parenting orders. She was obviously emotionally devastated by the decision and extremely distressed. I again saw [Ms Pendleton] on 13/06/2017 where she was still very distressed by the situation. A Depression/Anxiety/Stress Score (DASS 21) was performed which gave the following result:
Depression 40 Extremely Severe
Anxiety 40 Extremely Severe
Stress 38 Extremely Severe
This quite clearly shows that [Ms Pendleton] was in no way able to consider action or issue instructions regarding an appeal of the Court decision within the allowed time frame.
Yours sincerely,
[Dr G]
FRACGP, MRCGP, MBChB
Prov. No…
Presumably Dr G was made aware of the 28 day appeal period given his reference to “the allowed time frame”. However, what follows from that is that Dr G’s opinion is addressed only to “the allowed time frame”, which expired on 6 June 2017. Nothing in Dr G’s letter assists the mother with respect to the period of more than five months following 6 June 2017 which elapsed before the mother filed the present application.
Dr P’s letter is also dated 31 October 2017 and is quoted in full as follows:
31 October 2017
To Whom It May Concern
I am writing in reference to [Ms Pendleton], at her request.
I have worked with [Ms Pendleton] intermittently since May 2011, and I have also met and worked briefly with her children, [K] and [J]. I feel that I know [Ms Pendleton] quite well, and in my opinion she is a loving, responsible and committed mother.
I saw [Ms Pendleton] during the time the current parenting orders were made on 9 May 2017. She was absolutely devastated in the wake of the orders removing the children and not allowing any contact. To say she was suffering “emotional distress” would be an understatement. It would have been inconceivable that [Ms Pendleton] would have been able to manage the emotional impact of ongoing litigation at that time.
I’ve continued to work with [Ms Pendleton] in the ensuing months, and have been really impressed with her strength in dealing with the situation. I know [Ms Pendleton] to be a strong woman with a great capacity for self-reflection and change, and over these months she has gotten to a place where she is handling the emotions from the May decision remarkably well on her own. While I don’t wish the emotional turmoil of family court on anyone, I believe [Ms Pendleton] is in a place where she can handle it emotionally about as well as anyone, as she continues to seek parenting orders that truly reflect the best interests of [K] and [J].
Please let me know if further information would be helpful.
Sincerely,
[Dr P]
[family counselling centre]
…
(Emphasis as per original)
It is unclear as to what precise period, following 9 May 2017, Dr P is referring to in the third paragraph of his letter. However, the next paragraph speaks of the mother’s capacity in positive terms. The lack of precision of this evidence relied upon by the mother should not count in her favour. Whilst Dr P’s opinion arguably supports the mother’s incapacity in the 28 day appeal period, it does not support the proposition that for more than five months after the appeal period expired (until this application was filed) that the mother remained incapacitated. Indeed, given that Dr P’s letter, with its positive observations of the mother in the concluding paragraph, is dated 31 October 2017, it also does not support the proposition that any medical or health incapacity sufficient to preclude the mother from acting, persisted past that date. Arguably it was well before.
Whilst each of counsel for the father and the ICL submitted that the mother had failed to explain her delay at all, by reference to the medical evidence proffered, those submissions appear to be founded on the proposition that the mother had historically suffered from mental health difficulties but nevertheless had instructed lawyers and participated in litigation. Whilst that may be so, I must act on the evidence which is before me on this application and no medical evidence other than that to which reference has been made was presented either by the father or by the ICL. I therefore do not accept their submission. In my judgment, the mother’s affidavit evidence read in conjunction with, in particular, the opinion expressed by Dr G means that there is medical evidence to support the mother’s contention that she was medically unfit to file an appeal within time. However, neither the mother’s own evidence, nor either medical opinion, provides any sufficient explanation for the mother’s further significant delay of more than five months after the appeal period expired, to file her application.
In short, I am not satisfied that the medical evidence relied upon by the mother provides any adequate explanation of her failure to act at any time past the initial 28 day appeal period.
Claimed financial incapacity
As to the mother’s claimed lack of financial capacity, the father annexes to his affidavit filed on 10 January 2018 bank statements for the mother’s bank account showing that as at 23 May 2017 the mother’s account was in credit by approximately $15,000. As counsel for the father pointed out in oral argument, it has been open to the mother since receiving this affidavit in January of this year to respond and explain her use of those funds and to explain why they were not available for her to use for legal advice, if that was in fact the case.
It ought be emphasised that impecuniosity in itself cannot sensibly be accepted as in and of itself a legitimate reason for failure to file an appeal. The unfortunate fact is that very many litigants before the Court are driven to self-representation for financial reasons. The requirements of rules about time limits must generally be obeyed, whether or not a party has legal representation.
Even if impecuniosity is capable of providing sufficient excuse for
non-compliance in a given case, on the evidence here – in particular the mother’s failure to explain her use of funds available to her at the relevant time – I am not satisfied that the mother’s impecuniosity provides any reason for her delay.
Summary as to adequate explanation
In summary, I am satisfied on the medical evidence that the mother explains her failure to file a Notice of Appeal in the requisite 28 day period. However, I am not satisfied that the mother explains either adequately or at all her significant delay in not filing this application until more than five months after the appeal period had expired.
Conduct and prejudice
It is acknowledged that these parents continue to be engaged in property proceedings pursuant to s 79A of the Act, which I was informed from the bar table will again come before the Federal Circuit Court on 28 November 2018.
However the fact that such property proceedings remain on foot does not diminish the principle as to the desirability of finality of litigation with respect to the longstanding parenting litigation involving these children as earlier recorded.
The principle concerning finality of litigation assumes particular emphasis when it is borne in mind that the orders of 9 May 2017 have now been in effect for nearly one and a half years. Those orders effected significant change to the children’s parenting arrangements. Given that now, by way of the limited ground and scope of the mother’s proposed challenge on appeal is confined to the order made for time, then even if contrary to my assessment the mother’s proposed challenge had any merit, it is difficult to see how it can be said the mother sustains injustice compared to the position of the father, and indeed the children, of her application being refused.
In my judgment, it would be unfair and unjust to the father and to the children to subject them to a meritless appeal.
Conclusion
In my judgment, the mother’s proposed appeal enjoys negligible prospects of success insufficient to justify the exercise of discretion in her favour. The mother does not adequately explain her delay in bringing this application. The desirability of finality of litigation and potential prejudice to the father are also considerations weighing against an exercise of discretion in favour of the application. In summary, the mother fails to demonstrate that an extension of time is necessary to do justice between the parties and to prevent injustice.
The application is dismissed.
Costs
In the event the application was to be dismissed each of the father and the ICL sought an order for costs against the mother. The father sought his costs in the fixed sum of $16,000. The ICL had no fixed figure for costs sought by the ICL.
The mother opposed both applications. It was argued that her pursuit of her application for an extension of time was reasonable in all the circumstances. However, the mother’s central contention in seeking to resist costs orders, by reference to s 117(2A)(a) of the Act, is that her income is limited to Centrelink benefits and she has no assets.
I was informed from the bar table that in the s 79A proceedings the mother seeks a cash payment of $300,000 from the father if she succeeds, but as the application is pursuant to s 79A of the Act there is the prospect that the mother may be wholly unsuccessful.
In terms of the father’s financial circumstances, I was informed from the bar table that the father earns $75,000 per annum and that he has property worth about $400,000. Obviously enough, given the parenting orders made and the parents’ respective financial circumstances, it would seem likely that the father will have to meet the major share of the children’s future financial support.
As to the asserted reasonableness of the mother bringing this application, the father was put to the expense of having to address multiple proposed grounds of appeal by way of his Summary of Argument prepared by his lawyers (at his expense) but as the hearing progressed only two grounds, and in substance only one ground, was ultimately pursued. Significant expense might have been avoided had the other grounds not been included in the Notice of Appeal which the father was obliged to address.
The mother has been wholly unsuccessful in these proceedings within the meaning of s 117(2A)(e) of the Act. This was an application seeking an indulgence which, in my judgment, never enjoyed reasonable prospects of success.
These are justifying circumstances in favour of ordering costs against the mother. I am mindful of her constrained financial circumstances but it is well settled that impecuniosity is not a bar to an order for costs otherwise justified (see, for example, Lenova & Lenova (Costs) [2011] FamCAFC 141); and the mother is apparently pursuing further litigation against the father in the Federal Circuit Court pursuant to s 79A of the Act.
I propose to make orders for costs against the mother in favour of the father and the ICL respectively but allowing for the prospect that the mother’s financial position improves by then, I will postpone the effect of those orders until the completion of the s 79A proceedings, whether by settlement, discontinuance or judgment. Of course, the costs will still be payable even in the event that the mother does not enjoy any success in the s 79A proceedings.
Whilst it is always desirable for this Court to fix costs in an amount, and thus avoid the further trouble and expense of having costs assessed, in the absence of any itemisation, particularisation or explanation for the amount of $16,000 claimed by the father I am unable to fix the amount of costs.
I make the following orders:
(1) The Application in an Appeal filed on 15 November 2017 is dismissed.
(2)Subject to Order (3), [the mother] is to pay the costs of each of [the father] and the Independent Children’s Lawyer of and incidental to the application in the respective sums agreed or, failing agreement, in the respective amounts assessed.
(3)The operation of Order (2) is suspended until the current s 79A proceedings pending in the Federal Circuit Court between the parties are finalised by settlement, discontinuance or judgment.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 30 October 2018.
Associate:
Date: 30 October 2018
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