PROCTOR & PROCTOR
[2016] FamCAFC 129
•19 July 2016
FAMILY COURT OF AUSTRALIA
| PROCTOR & PROCTOR | [2016] FamCAFC 129 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an extension of time in which to file a Notice of Appeal – Reasonable excuse for delay – Where the proposed appeal is not devoid of merit – Leave for an extension of time granted. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for expedition – Where the orders being appealed resulted in significant changes to the child’s living arrangements – Expedition granted. |
| Family Law Act 1975 (Cth) ss 68B, 94(2D)(j) Family Law Rules 2004 (Cth) rr 12.10A, 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Mr Proctor |
| RESPONDENT: | Ms Proctor |
| INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
| FILE NUMBER: | PAC | 1846 | of | 2014 |
| APPEAL NUMBER: | EA | 78 | of | 2016 |
| DATE DELIVERED: | 19 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 30 June 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 March 2016 |
| LOWER COURT MNC: | [2016] FCCA 613 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Ford |
| SOLICITOR FOR THE APPELLANT: | David Leamey Solicitor |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Beck |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mills Oakley Lawyers |
Orders
The time in which Mr Proctor may appeal from the Orders of Judge Harman made on 23 March 2016 in proceedings PAC1846 of 2014 is extended up to and including 9 August 2016.
The appeal be expedited on the basis that the appeal not be listed for hearing before 7 October 2016 and thereafter shall be listed at the discretion of the appeals registrar.
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 Proctor & Proctor 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 78 of 2016
File Number: PAC 1846 of 2014
| Mr Proctor |
Appellant
and
| Ms Proctor |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 10 May 2016 Mr Proctor (“the father”) seeks an extension of time in which to file an appeal against orders of Judge Harman made on 23 March 2016. The proceedings between the father and Ms Proctor (“the mother”) concerned both property and parenting.
On 23 March 2016 the primary judge ordered that the parties’ youngest daughter (“X”), aged 12, live with her mother who was to have sole parental responsibility for her. An injunction was made under s 68B of the Family Law Act 1975 (Cth) (“the Act”) restraining the father from approaching X, attending upon or being within 100 metres of X’s home or school, attempting to communicate or contact her by any means or taking X into or having her in his care.
The primary judge further ordered that the parties’ second youngest son (“Y”), then aged 13, live with his father who was to have sole parental responsibility for him.
The primary judge also made property orders dividing the parties’ assets, which had a value of $144 000 after payment of certain creditors.
Although the proposed appeal is against both the parenting and property orders, counsel for the father concentrated primarily on the parenting issues in his submissions.
Service
The mother did not appear at the hearing of the Application in an Appeal. It was therefore necessary for the father to prove that the mother had been served with the Application.
According to an affidavit sworn by a process server engaged by the father’s solicitors, on 24 June 2016 a process server approached a person and asked if she was Ms Proctor. After the person replied “yes” the process server said “I have an appeal from [Mr Proctor] for you”. The response was “I don’t want anything I am calling the police right now”. The driver closed the window but the process server placed the documents under the right window wiper. There is no reason to think that the person served was anyone other than the mother.
The solicitors for the father depose that they have also sent copies of the Application in an Appeal and accompanying documents to the mother’s former solicitors and her last known addresses. In the last case the documents were returned to the sender.
Nonetheless I am satisfied that the mother was served with the Application in an Appeal on 24 June 2016 when she was personally served with the documents.
Background
In order to understand the application it is necessary to give some brief background.
The parties have four children: two adult children and the two children referred to in the orders. Notwithstanding that the parties were divorced in September 1994, the parties lived together for the period 1995 to 2011, during which time the two younger children were born. After a period of separation the parties lived together from 2012 to early 2014.
The four children have lived with the father since February or March 2014. The position at the hearing was that the three eldest children wished to have nothing to do with their mother and were of the view that the mother was violent to them and to their father.
The mother’s case, on the other hand, was that the father was violent to her and that over the years he had caused the three elder children to become aligned with him against the mother. It was her case that the only way in which the youngest child could have a relationship with her was for the child to live with the mother and not see the father.
As is evident from the orders made by the primary judge, the mother’s case was substantially accepted in preference to the case put forward by the father.
Application for an extension of time
The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J said:
…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 necessary 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore 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 consequences for the parties of the grant or refusal of leave and the merits of the appeal.
I shall first deal with the issue of delay.
Judge Harman made his orders on 23 March 2016. Accordingly any appeal needed to be filed on or before 21 April 2016 (r 22.03, Family Law Rules 2004 (Cth) (“the Rules”)). The father did not do so.
Rather, on 10 May 2016, 19 days after the expiry of the time for lodging an appeal, the father filed his Application for an extension of time in which to file an appeal, along with a detailed affidavit, sworn on 29 April 2016, setting out his attempts to have lawyers act for him in the proceedings.
I accept that the father acted reasonably promptly in bringing his application for an extension. It must be borne in mind that the judgment appealed from contains 1019 paragraphs, extends over 236 pages and takes some time to digest and understand.
On the day the orders were made the father contacted a community legal centre to discuss the appeal process. Over the next few days, which constituted the Easter break, the father searched online for law firms and solicitors.
On 30 March 2016 the father approached two lawyers, each of whom advised him that they could not assist him with his appeal. Late that same day the father spoke to a third firm of solicitors who requested a copy of the judgment, which was provided to them on 1 April 2016. On 7 April 2016 the father was advised they were not prepared to act for him.
On 31 March 2016 the father contacted a fourth firm of lawyers which led to a meeting with a lawyer from that firm and a barrister on 4 April 2016. The father paid the lawyers $800. The father said that he received two emails from the lawyer asking the father to provide detailed instructions about the part of the decision that the father asserted was wrong. The father took the view that that was why he was engaging the lawyers and on 10 April 2016 ceased to instruct them.
In the meantime the father had made an application for legal aid on 1 April 2016, which was refused on 19 April 2016. He appealed that decision.
On 19 April 2016 the father contacted yet another firm of lawyers. They assisted with the preparation of the father’s affidavit of 29 April 2016 and wrote to the registry seeking an extension of time in which to lodge a Notice of Appeal.
On 10 May 2016 the father was advised that his appeal against the rejection of legal aid was successful. The grant was assigned to his present lawyers.
I am satisfied that the father has not sat on his hands and has done the best he could to obtain advice to prosecute his appeal and that there is an appropriate explanation for his delay in filing the application.
The father submits that the subject matter of litigation is a significant consideration. The orders moved a 12 year old child from living with her father and three siblings, with whom she had lived for some two years, to the care of the mother with no possibility of seeing the father in the immediate future. Thus not only was there a significant change in the life of the youngest child; she was separated, effectively, from her siblings. There is force in this submission.
It is necessary to consider the prospects of the appeal succeeding. It is of course difficult to make such an assessment on the limited material presently available to the court on the hearing of this application.
Counsel for the father accepted that significant credit findings were made against the father and that they could not be challenged on appeal. Nonetheless he submitted that the following matters demonstrated that there is a sufficiently arguable appeal so as to justify an extension of time.
The first is the primary judge’s finding that the father did not pose an unacceptable risk to the children, saying:
784.I have real concerns as to the children’s welfare in the future particularly in light of the clear evidence that Mr [Proctor] lacks any insight into the role that he plays in undermining the children’s relationship with their mother and, in so doing, causing serious emotional distress to these children. That most certainly constitutes a risk to these children although, in all probability, falling short (although only just), of that required by the case law discussed above to justify a finding of “unacceptable risk”.
The second is that the orders made by the primary judge were not the orders recommended by the family consultant (whose opinion the primary judge expressly refused to accept) and were made contrary to the submissions of the independent children’s lawyer (“ICL”).
Thirdly, counsel for the father points to the separation of the two younger siblings.
In relation to the last submission, counsel for the father referred to these passages from the reasons for judgment and submitted that the extreme nature of these findings would not, in due course, be found to be justified by the evidence:
322.The evidence would suggest that [Y] has now been enlisted by Mr [Proctor] as a child soldier into his “militia”.
323.The evidence suggests that [X] has been actively recruited to Mr [Proctor]’s “militia” and that her ability to resist Mr [Proctor]’s call of duty, to serve the cause against “the enemy” Ms [Proctor], is beginning to waiver.
324.I have used this terminology of “militias” and “enemies” as it is a repetition or evocative of the language used by Mr [Proctor] at the [Suburb N] Police Station 9 January, 2015 and as these children have, I am satisfied, grown up in a “war zone” between their parents in which they have had strategic objectives of destruction of and victory over the other by severance of any bond or alliance between that parent and the children.
325.Mr [Proctor] is far more culpable in this warfare. On one level, the mathematisation of culpability matters little in calculating the damage and injury to these children. However, it does assist in addressing future risk. It is Mr [Proctor] and his attitudes and behaviour that are the most significant, ongoing risk to these children and especially [Y] who is not yet fully enlisted.
The above submissions are sufficient to establish that the proposed appeal is sufficiently arguable to justify an extension of time. Whether or not those submissions will be accepted on an appeal is, of course, an entirely different matter.
The orders effected a radical change in the living circumstances of Y. If that change is to be reconsidered as a result of a successful appeal, it is desirable that such a reconsideration take place sooner rather than later to avoid the consequences of again changing the child’s circumstances. Such a reconsideration should take place before the child becomes accustomed to the changed living arrangements.
The ICL appeared on the hearing of the Application and did not object to the orders sought.
I am satisfied taking all of these matters into account that it is appropriate to make the orders as sought.
Counsel for the father sought a period of 21 days in which to lodge a Notice of Appeal submitting that the length and complexity of the judgment were such that it would take that period of time to prepare a cogent and focused Notice of Appeal. That is an appropriate course to take.
Expedition
The father made an oral application for expedition of the proceedings which was supported by the ICL.
Section 94(2D)(j) of the Act provides that a judge of the appeal division may make an order to expedite the hearing of an appeal. Rule 12.10A of the Rules, although not directly relevant, helpfully raises the relevant matters for consideration. The essential issue in this case is whether the hearing of the appeal should be given priority over the hearing of other appeals including appeals involving parenting matters.
The father has acted promptly in bringing this application. The subject matter of the appeal is the living arrangements of a 12 year old child, where very significant changes have been made to those living arrangements as a result of the orders of 23 March 2016.
Having regard to that matter and to the consequence of delay it is appropriate that an order for expedition be made. It will take some time for the parties to prepare this appeal for hearing, so a direction will be made that the appeal not be listed for hearing on a date earlier than 7 October 2016. The matter can then be listed at the discretion of the appeals registrar.
Costs
No order for costs was sought and none will be made.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 19 July 2016.
Associate:
Date: 19 July 2016
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