Pinson and Pinson

[2020] FamCAFC 8

FAMILY COURT OF AUSTRALIA

PINSON & PINSON [2020] FamCAFC 8

FAMILY LAW – APPEAL – EXTENSION OF TIME – Where the mother was one day late in filing her Notice of Appeal – Where the primary judge made orders for the mother to have supervised time with the children – Where such time was to be as “nominated by the Contact Centre” – Where the primary judge appears to take into account his experience as a prosecutor when dealing with the evidence – Where there is merit to the appeal – Where the delay is minor and adequately explained – Application for extension of time granted.

Family Law Rules 2004 (Cth) r 1.14

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Pendleton& Pendleton [2018] FamCAFC 203

APPLICANT: Ms Pinson

RESPONDENT: Mr Pinson

INDEPENDENT CHILDREN’S LAWYER: Patrick Dooley, Dooley Solicitors

FILE NUMBER: BRC 3734 of 2019

APPEAL NUMBER: NOA 116 of 2019

DATE DELIVERED: 17 January 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 17 January 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 19 November 2019

LOWER COURT MNC: [2019] FCCA 3531

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Simpson Family Lawyers

SOLICITOR FOR THE RESPONDENT: Michelle Porcheron Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders

1. That there be an extension of time for the mother to file her Notice of Appeal to 4:00 pm on 21 January 2020.

2. That the proceedings be adjourned to the Appeals Registrar for a procedural hearing at 10:30 am on Tuesday 21 January 2020, with a view to having this appeal listed to the forthcoming sittings of the Full Court in March 2020.

3. That the costs of each party of and incidental to this application be reserved.

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 Pinson & Pinson 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 116 of 2019
File Number: BRC 3734 of 2019

Ms Pinson

Applicant

And

Mr Pinson

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This is an Application in an Appeal for an extension of time to file a Notice of Appeal from interim parenting orders made by a Federal Circuit Court of Australia judge on 19 November 2019 and that there be an expedited hearing of the appeal from those orders.

2. Those orders provided for, in summary:

   a)An immediate change of residence of the parties’ then eight year old daughter from living with the mother to living with the father;

   b)The child to spend only supervised time with the mother at a contact centre;

   c)Such time to be “as nominated by the Contact Centre”;

   d)The mother to pay the costs of the supervised time; and

   e)A series of injunctions directed to the mother designed to prevent the mother having any contact with the child outside of ordered supervised time.

3. The 28 day period prescribed for the filing of an appeal expired on 17 December 2019. It was the next day, 18 December 2019, that the mother filed this Application in an Appeal, so the mother was only one day late in attempting to advance an appeal.

4. The power to extend time is provided for in r 1.14 of the Family Law Rules 2004 (Cth). The principles governing the discretion to exercise that power are well established in many decisions of the Full Court and need not be restated here (see, for example, the authorities referred to in Pendleton& Pendleton [2018] FamCAFC 203 at [6] to [9]).

5. In summary, the question of whether to extend time involves consideration of whether an extension is required so as to do justice between the parties. This necessarily involves consideration as to whether an applicant establishes that there is a substantial issue to be raised on appeal and, if so, then discretionary considerations such as the length of the delay, whether it is explained and any hardship or prejudice flowing to the respondent from that delay, are assessed.

6. In terms of substantial issues to be raised, as it seems to me from reading the draft or proposed Notice of Appeal of the mother, there are substantial questions to be raised on the appeal.

7. Without descending into the detail of all of the grounds, one of the complaints advanced by the mother is that the form of the order made by the trial judge concerning supervision or supervised time for the mother being “as nominated by the Contact Centre” is vague and ambiguous. Moreover, as it seems to me, that order is arguably not sustainable on the basis that it might arguably be seen to be delegating judicial power to a third party, inconsistently with authority, for example Harris v Caladine (1991) 172 CLR 84.

8. Another complaint sought to be advanced by the mother on appeal concerns the trial judge’s use of psychiatric evidence in the case. It was effectively evidence raised by a psychiatrist that appears to have driven the trial judge’s decision to fundamentally change the child’s parenting arrangements, in terms of which parent she lived with.

9. There is a feature to that in that, as appears from the transcript, and I refer to the Transcript of 19 November 2019 (p.6 line 28 to p.7 line 7) it appears that the trial judge may have had regard to his previous experience as a prosecutor in considering the expert evidence in the case.

10. It might be seen to be arguable by reference to authorities such as Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 in the High Court that the trial judge was in error in doing so. I say these things on a provisional basis and of course it would be a matter for the Full Court hearing the appeal as to whether error on the appeal is established.

11. I simply make these observations on the basis that I am satisfied that there are substantial issues to be raised on appeal.

12. Obviously, the length of the delay is very short and on a reading of the affidavit in support of the application, that delay is readily explained. The settled reasons for judgment were not issued by the trial judge until 5 December 2019, having been delivered on 19 November 2019.

13. The applicant promptly obtained the relevant transcript on 9 December 2019 and on 10 December 2019 her lawyers prepared and forwarded a brief to counsel. On 17 December 2019, counsel responded with his advice concerning the grounds of appeal and the mother dealt with that as promptly as she received it.

14. I am, therefore, satisfied that the delay is adequately explained and neither of the respondents point to any relevant prejudice. The application is not opposed.

15. For these reasons I will make the following orders:

    1.That there be an extension of time for the mother to file her Notice of Appeal to 4:00 pm on 21 January 2020.

    2.That the proceedings be adjourned to the Appeals Registrar for a procedural hearing at 10:30 am on Tuesday 21 January 2020, with a view to having this appeal listed to the forthcoming sittings of the Full Court in March 2020.

    3.That the costs of each party of and incidental to this application be reserved.

I certify that the preceding fifteen (15) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Kent delivered on 17 January 2020, edited to correct grammatical errors and some infelicity of expression.

Associate: 

Date:  20 January 2020