PRESCOTT & FINLEY - [2019] FamCAFC 211

FAMILY COURT OF AUSTRALIA

PRESCOTT & FINLEY

[2019] FamCAFC 211

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant requires an extension of time – Where the applicant was incarcerated at the time the judgment was delivered –Where the applicant failed to receive a copy of the judgment – Where no current Notice of Address for Service was filed by the applicant – Where the applicant was three months late in filing the appeal – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.02

Bethke & Bethke (2019) FLC 93-906; [2019] FamCAFC 106
Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; [1996] HCA 25
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Tormsen and Tormsen (1993) FLC 92-392; [1993] FamCA 151

APPELLANT:

Mr Prescott

RESPONDENT:

Ms Finley

THE INDEPENDENT CHILDREN’S

LAWYER

Mark Whelan Lawyer Pty Ltd

FILE NUMBER:

CRC

327

2015

APPEAL NUMBER:

EAA

104

2019

DATE DELIVERED:

8 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

5 November 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

23 January 2019

LOWER COURT MNC:

[2019] FCCA 82

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Bryant McKinnon Lawyers by telephone

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Stolier

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mark Whelan Lawyer Pty Ltd

Orders

The Application in an Appeal for an extension of time in which to appeal from the orders of Judge Terry made 23 January 2019 is dismissed.

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 Prescott & Finley 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: EAA 104 of 2019
File Number: CRC 327 of 2015

Mr Prescott

Appellant

and

Ms Finley

Respondent

and

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 23 January 2019 a judge of the Federal Circuit Court made parenting and property orders in contested proceedings between Ms Finley (“the mother”) and Mr Prescott (“the father”). The parenting proceedings concerned the twin daughters of the parties who were born in 2010.
The hearing before the primary judge ran for three days in July 2017 and on 16 August 2017. Final submissions were made on 22 February 2018 and the judgment was delivered and orders made on 23 January 2019.
Her Honour ordered the mother to have sole parental responsibility for the children and that they live with her. She further ordered the father spend no time nor communicate with the children and by injunction restrained the father from entering and remaining at the residence, places of employment and education and of the mother and from removing the children. The father was further restrained from approaching the children or the mother.
At the time the orders were made and the reasons published, the father was in prison, serving a sentence that commenced in January 2019 and which expired on 12 July 2019 on which date the father was released. He said that this sentence was “unrelated to the substantive matter or other parties involved in that matter”.
On 11 October 2019 the father by Application in an Appeal sought an extension of time in which to appeal the orders of the primary judge.

Background

Some background of the matter taken from the primary judge’s reasons assists in giving context to the issues to be decided.
The father is a legal professional and has practised as a medical professional.
He and the mother commenced a relationship in May or June 1997 and they separated in October 2015 when the mother left the home they had shared in regional NSW with the two children and moved to live with her mother.
On 19 November 2015 the father met the mother, the maternal grandparents and the children in a park and they argued. Police were called and, on the father’s assertion that there were no orders in place and as the children wished to see him, police permitted him to take the children with him. He took them interstate. Although the mother filed an application for a recovery order, the father, after becoming aware of the application, returned the children to regional NSW.
On 26 November 2015 consent orders were made in the Federal Circuit Court that the parties have equal shared parental responsibility for the children and, subject to the father obtaining a “satisfactory” report from his psychiatrist, the parties would share the care of the children. The orders envisaged the children remaining in the former marital home and the parties would move in an out of that home depending on who had the care of the children at that particular time. The order further enjoined the party in whose care the children were not then living from entering the house.
On 28 November 2015 the father breached the injunction by entering the house in the early hours of the morning and woke the mother, shouting at her. The mother reported this to the police and on 8 December 2015 obtained an interim Apprehended Domestic Violence Order (“ADVO”).
Consequently she refused to move out of the house to allow the father to move in and care for the children although the father had obtained a positive report from his psychiatrist.
On 9 December 2015 the father again entered the house, again shouted at the mother and took her phones. He was arrested by police as he walked away and was charged with assault, stealing, resisting police, intimidation and breach of the ADVO. He was convicted on these charges and although some sentences imposed in relation to the charges were altered on appeal, the convictions remained.
On 16 December 2015 the father was arrested and charged with breach of the ADVO after being found in the vicinity of the marital home.
On 17 December 2015 orders were made in the Federal Circuit Court discharging the previous parenting orders and, instead, orders were made that the children live with the mother and spend time with the father supervised at a commercial contact centre. The father spent time with the children pursuant to this order until April 2016 when the contact centre refused to continue to supervise because, they said, of the father’s inappropriate conversations with the children and repeated breaches of the Service Agreement. This was the last time that the father saw the children.
He did however speak to the children by telephone but that ceased in May 2017 following a complaint about him to the police made by his mother.
In October 2016 the father was arrested, charged and convicted of further breaches of the ADVO and was imprisoned. On 20 December 2016 he was again charged with further breaches of the ADVO, convicted and placed on a good behaviour bond.
At the time of the trial in the Federal Circuit Court the father was on bail pending further criminal hearings.
The father appeared for himself during the trial, challenged witnesses and made submissions during the hearing.
It should be noted that notwithstanding this account taken from her Honour’s reasons, the father in submissions on the application contended that he had successfully challenged some convictions by appeal to the District Court. It should also be noted that the father contends that none (or perhaps most) of the assaults and other conduct alleged against him occurred and that he is the victim of “malicious and vexatious allegations waged against him aimed at discrediting him”.
The father further contends that if an extension of time in which to appeal is granted, he proposes to seek to adduce further evidence to demonstrate the falsity of the allegations made against him.

Relevant Principles

Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal within the timeframe stipulated by r 22.03. In this case, the last day for filing an appeal was 20 February 2019.
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. Discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave.
The exercise of discretion also involves an assessment of prospects of a successful appeal.

Delay and the reason for it

The father contends that he was not made aware of the delivery of the reasons and orders because he was in prison and his former address and contact details became “null and void” and his usual email address “expired”. I understand from this that the father was not in receipt of information through these means.
However, in the proceedings in the Federal Circuit Court the father had, in the usual way, provided the Court with an address for service. He agreed that on being imprisoned he did not file a new address for service nor did he take any steps to notify the Court of his present address. It is important to understand that the father is a lawyer although he does not hold a practicing certificate. The point being that he, unlike other self-represented litigations, appreciated the way in which a Court can be informed of a change of address.
Although nowhere mentioned in his affidavit in support of the application, the father contended that although his address and contact details had become, as he said “null and void”, that in fact when he was imprisoned friends attended his address to check the mail and to remove his furniture and he said no mail was received from the Court.
It seems strange that he made no attempt to facilitate this contact with the Court despite being imprisoned.
The father also said, a matter again not included in his affidavit, that he understood the primary judge to be holding back delivery of the reasons until other criminal charges against him were heard and determined at Town E Local Court.
He agreed, and indeed it is plain, that nowhere in her Honour’s reasons is this mentioned. Her Honour refers to the delay in delivering her judgment at [43] but makes no mention of the reasons being delay to await the conclusion of criminal charges against the father.
In December 2017 the father sought to reopen the evidence before her Honour, in particular he sought orders that the report of the single expert be made available to his psychiatrists for comment and other orders apparently relating to the evidence already given in the hearing.
Her Honour said:
40. On 5 February 2018 I was informed that the hearing into the charges laid in May 2017 was still not concluded, that the father had a pending District Court appeal against some convictions or orders made against him and that there may be further Local Court proceedings for breaches of an ADVO which was in force to protect the mother.
41. I therefore further adjourned the matter to 22 February 2018 for the purpose of hearing submissions about the application to re-open and receiving any information the Independent Children’s Lawyer was able to obtain about the state of any other court proceedings concerning the father.
42. On 22 February 2018 I heard submissions about the father’s application to re-open which the Independent Children’s Lawyer also opposed and I dismissed the application. I received information about some District Court appeals which had been concluded. I was informed that the hearing into the May 2017 charges was still not concluded but in all the circumstances of the case I informed the parties that I would not wait any longer to find out about the outcome of those proceedings and would prepare a decision.
It does not appear at least on the face of the reasons that her Honour’s delay in producing the judgment had anything to do without outstanding criminal charges against the father.
In any event, even if so, that does not in my opinion provide comfort to the father in making no attempt to inform the Court of his change of address.
I do not consider the fact of his imprisonment in these circumstances to be a satisfactory explanation for the delay in bringing the appeal.
Even so, after being released, the father did not bring his application for extension of time for three months. The father contends that he was unaware of the delivery of the judgment until being told in passing by the maternal grandfather. He said that he then contacted the Court in order to obtain a copy of the judgment and thereafter proceeded to engage the appeal process.
In my view that the father was not informed of the delivery of the judgment was a matter entirely explained by his failure to keep the Court informed of his current address.
However, I turn now the effect of the delay because it is clearly understood the delay and its consequences do not only affect the putative appellant.
Lest it be thought that delay beyond the prescribed time limit is no more than a mere technicality, it is not. In Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at page 8, McHugh J said apropos the limitation periods imposed for the commencement of civil proceedings, which is entirely apposite here:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods…The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”.
…
Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties.
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one…
(Citations omitted).
(See too the Full Court of the Family Court in Bethke & Bethke (2019) FLC 93-906)
The mother was entitled to understand that once the limitation period had passed, she could comfortably rely on her Honour’s orders and structure her life accordingly.
There was considerable evidence before the primary judge as to the relationship between the parties and her Honour found that there had been significant acts of family violence perpetrated by the father against the mother. Her Honour gave discrete consideration to the effect on the mother of any orders that the father spend time with the children, a discussion which concluded by her quoting the single expert:
221. Dr [D] put this a different way saying that what the children needed was security, reliability, calmness and a stable home. The mother can provide that and the father cannot and the mother’s capacity to provide that should not be undermined by an order for the children to spend time with the father which she might not be able to bear.
Clearly then in light of those findings, the effect of the delay on the mother in bringing this application cannot be ignored.
The father argued that the best interests of the children dictate not finality nor certainty but for him, through the appeal process, to see the children so that they do not grow up with him absent.
The mother is the only primary carer for these children. The orders sought by the father in the event of the appeal being successful are that there be a graduated regime by which he spends time with the children, first by Skype then in supervised time for two hours each fortnight and that he be permitted to attend their school events. He does not seek to have the primary care of these children. In that event the potency of her Honour’s findings about the effects on the mother’s capacity to provide what the children presently needs is made more clear.

Merits of the appeal

As part of a consideration of the application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that what must be clearly shown before an applicant is denied the right to have his or her appeal heard, is that the appeal would fail.
This determination of the merit of the appeal requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose must of necessity be confined by the documents available to the Court on the application.
The Grounds in general terms challenge her Honour’s findings and conclusions where they differ from those for which the father contended.
For example Ground 5 challenges the primary judge’s reliance on the opinion of the single expert and argues that her Honour erred in relying on that document in the face of the father’s criticisms of the expert’s “lack of independence, impropriety and favouritism towards the [m]other”.
It is to be observed that notwithstanding the father’s criticisms of the expert’s opinion and an application to re-open the evidence, the father brought no evidence on which to base his criticisms, a point noted by the primary judge at [245] in the reasons.
Grounds 2 and 3 challenge her Honour’s fact finding. In effect arguing that the primary judge erred in finding facts against the father’s denial of them.
Her Honour’s reasons demonstrate careful weighing and assessing of the contested facts against her conclusion that the father’s evidence was generally unreliable but she nevertheless considered objective evidence such as police records and the father’s admissions in deciding what facts were proved by the evidence.
Challenges to fact finding face a very high bar to appellate intervention, the appellant having to demonstrate that the facts found by the primary judge were not open to be found on the evidence (See Edwards v Noble (1971) 125 CLR 296 at 304).
The balance of the grounds challenge the weight or importance placed on the evidence of witnesses with whose account the father disagreed.
The weight or importance attributed to evidence is a matter quintessentially for the primary judge and an appeal court will only intervene where it can be shown that the primary judge’s conclusions were plainly wrong (See Gronow v Gronow (1979) 144 CLR 513 at 519-520).
Thus the father’s appeal faces considerable hurdles to success but I am not able to say that the appeal wholly is lacking in merit. However, this must be balanced against the other factors such as the delay, its magnitude, the failure to give an adequate explanation for the delay and the effect of the delay on the mother.
The issue then is as expressed in Tormsen and Tormsen (1993) FLC 92-392 at 80,017:
…whether this will enable the court to do justice between the parties. In that connection the Court must weigh the right which the respondent to the application prima facie has to attain the benefit of the judgment, and the desirability that there be a finality of litigation.
(Citations omitted)

In all of those circumstances I will not extend time in which to file the appeal and the application will be dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

8 November 2019.

Associate:

Date: 8 November 2019