Quiroga & Bell
[2023] FedCFamC1A 80
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Quiroga & Bell [2023] FedCFamC1A 80
Appeal from: Bell & Quiroga [2022] FedCFamC2F 1825 Appeal number(s): NAA 8 of 2023 File number(s): HBC 1192 of 2020 Judgment of: TREE J Date of judgment: 24 May 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – TRANSCRIPT – Where the appeal was taken to be abandoned by operation of r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the applicant seeks reinstatement of the appeal and relief in relation to the transcript – Where the proposed appeal enjoys no reasonable prospects of success – Where reinstatement of the appeal is not necessary to enable the court to do justice between the parties – Where it is unnecessary to further consider the application in relation to the transcript – Applications dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.22, 13.44 Cases cited: Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Number of paragraphs: 30 Date of hearing: 23 May 2023 Place: Cairns (via video link) The Applicant: Self-represented litigant Solicitor for the Respondent: PWB Lawyers ORDERS
NAA 8 of 2023
HBC 1192 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS QUIROGA
Applicant
AND: MR BELL
Respondent
order made by:
TREE J
DATE OF ORDER:
24 may 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 24 March 2023 is dismissed.
2.The applicant pay the respondent’s costs in the sum of $557.60 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Quiroga & Bell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODCUTION
On 19 December 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) found Ms Quiroga (“the mother”) guilty of contravening interim consent parenting orders made 4 April 2022, and placed her on a good behaviour bond for 12 months. The 19 December 2022 orders also varied the arrangements under the 4 April 2022 orders for the child to spend time with Mr Bell (“the father”) and required the mother to pay the father’s costs in the sum of $3,000.
On 12 January 2023, the mother filed a Notice of Appeal from those orders.
On 1 March 2023, an appeal judicial registrar made the usual procedural orders to ready the appeal for hearing. Those orders required the mother to obtain and file transcript of the hearing before the primary judge by no later than 22 March 2023 (Orders 2 and 3), and detailed that if the mother did not do so, by operation of r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the appeal would be deemed abandoned (Order 4). The mother did not file the transcript by the due date and thus the appeal was deemed abandoned.
On 24 March 2023, the mother filed an Application in an Appeal seeking two things; firstly, reinstatement of her appeal, and secondly, that she have leave to rely upon an audio recording of the primary hearing in lieu of the transcript.
On 23 May 2023, I heard the mother’s Application in an Appeal. For the reasons which follow, reinstatement will be refused, which therefore makes it unnecessary to determine the application in relation to the transcript.
BACKGROUND
On 4 April 2022, the parties entered into interim consent orders made by a judicial registrar following a court ordered dispute resolution conference. Both parties were legally represented at the time. Those orders provided that the parties’ nearly three year old child was to live with the mother (Order 1) and from July 2022 spend time with the father each Wednesday for three hours at specified locations (Order 5), but only if the father produced a negative drug test (Order 3).
The father produced a negative drug test in July 2022, however the mother thereafter did not make the child available at all as per the 4 April 2022 orders.
On 9 September 2022, the father filed a contravention application alleging the mother breached the 4 April 2022 orders by not making the child available on five occasions, being 10 August, 17 August, 24 August, 31 August and 7 September 2022. It was not disputed before the primary judge that the father had not spent any time with the child since July 2022.
The mother pleaded guilty with reasonable excuse to the five contravention counts, principally arguing that she did not agree to the consent orders made on 4 April 2022, and further that she or the child were ill on three of the five occasions.
Ultimately the primary judge did not accept the mother had a reasonable excuse and made the orders the subject of this appeal.
APPLICATION FOR REINSTATEMENT
Rule 13.44 of the Rules provides that “[a] party may apply to have an appeal taken to be abandoned under this Chapter reinstated”. That rule does not specify any criteria to be taken into account in the exercise of discretion by the court, as noted by the Full Court in Bemert & Swallow (2010) FLC 93-441 (“Bemert & Swallow”) in relation to its predecessor rule:
154.…[I]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account. However, it is important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in Aon Risk Services.
Notwithstanding that statement, Bemert & Swallow nonetheless identified that the principles derived from the authorities applicable to determining an application for an extension of time in which to file an appeal, will likely inform an application for reinstatement of an appeal.
From those principles, the central issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, which is likely informed by at least the following factors:
(a)The extent of the delay and whether there is an adequate explanation for it;
(b)The nature and history of the litigation;
(c)The prospects of the applicant succeeding in the appeal;
(d)Any prejudice or consequence to the parties depending upon the result of the application.
Addressing those matters in that order, here the delay has been slight, the mother having filed the application for reinstatement the day after the appeal was deemed abandoned.
There is no suggestion that the parenting litigation has been unduly protracted, however there does seem to be a recurring theme of the mother switching between having, and not having, legal representation, and when she becomes self-represented, seeking indulgences from the court as a result. Most notably, here the mother’s lawyers withdrew from acting for her at the hearing of the contravention because her solicitor was “unable to have the mother listen to her” (at [3]), which then saw the mother make an oral application to adjourn the contravention hearing.
The prospects of success of the appeal is a major issue in this application. The grounds of appeal are as follows:
1.Failed to take into account the material consideration of unacceptable risk to child.
2.No sufficient reasons given.
3.Made an Order plainly unjust resulting in a substantial wrong that the child is at risk.
4.No procedural fairness afforded. Respondent unrepresented resulting in severe disadvantages, unable to present evidence. Not given fair hearing.
(As per the original)
Ground 1 is misconceived. The mother contended before the primary judge that she had a reasonable excuse for contravening the orders. The excuse proffered for three of the five contraventions was that either she, or the child, were ill. The primary judge rejected that claim, on the basis that no medical certificates attesting to such illness/es were produced (at [15]). As regards the other two contraventions, the mother contended that her reasonable excuse was that she “could not take the risk of unsupervised contact due to the behaviours displayed by [the father] in the past” (at [16]). The primary judge rejected this, saying that “the mother either has an unreasonable or unrealistic view of the risk of harm to the child posed by the father and his past alleged habits, or alternatively, she is misguided in seeking to deprive the child of a meaningful relationship with his father” (at [21]).
Plainly therefore, to the extent the case before her required it, the primary judge did precisely what Ground 1 contends she did not do.
Ground 2 is likewise forlorn. The reasoning upon which the decision is based is clear, and justice can be seen to have been done (Bennett and Bennett (1991) FLC 92-191 at 78,266) including in relation to the variation of the arrangements for the father spending time with the child.
As to Ground 3, the primary judge imposed a bond “without surety and without security” (at [22]). How such a gentle sanction could be said to be a “plainly unjust” response to five contraventions is entirely opaque. If it be that the injustice lies in requiring the mother to comply with the consent orders she entered into on 4 April 2022 as varied, that is palpable nonsense.
Ground 4 alleges that the contravention hearing was unfair for the mother, in that she was unable to present unspecified evidence because she was not legally represented. It seems she says that it was this contended inability which was procedurally unfair.
I have already traversed the very simple bases upon which the mother argued she had a reasonable excuse for contravening the 4 April 2022 orders. It is difficult to envisage what further evidence could have been adduced relevant to them, although before me the mother claimed that she in fact did have medical certificates for some visits. However as I have earlier observed, up until and on the morning of the hearing of the contraventions, the mother was initially legally represented, but that lawyer withdrew for the reason recited above. Such a withdrawal does not automatically entitle a litigant to an adjournment, especially here, where the father had not then spent any time with the child for six months (at [4]).
The primary judge weighed the competing considerations in the course of refusing the mother’s application for an adjournment, and no direct challenge to that refusal is advanced by Ground 4. Moreover it is plain that, notwithstanding the complaint made by this ground, in fact the mother did rely upon an affidavit at the hearing “which was filed in Court and stated by her on oath to be true” (at [9]), upon which she was then cross-examined. Precisely what more Ground 4 says she needed to be permitted to do is quite unclear.
I conclude that no ground of appeal has any reasonable prospects of success.
Turning then to the question of prejudice or other consequences to the mother if the appeal is not reinstated, it must be said that the bond order is not prejudicial to her as long as she complies with the 4 April 2022 orders as varied, which compliance is required of every litigant. Orders 3 (discharging the time spending orders of 19 December 2022) and 8 (varying the circumstances in which the father will spend time with the child) do not appear prejudicial in light of the fact that both parties proposed to the primary judge that the 4 April 2022 orders should be varied so that the child spends time with the father for three hours per week, and the new public locations were those sought by the mother (at [14]). The relief sought by the mother in her Notice of Appeal is simply for Orders 1, 3, 4 and 8 to be discharged, thus leaving the consent orders of 4 April 2022 in operation. Being deprived of that opportunity is scarcely any form of prejudice. Lastly, as I confirmed with the parties at the hearing, the matter is listed for a final trial before the primary judge in July 2023. It follows that reinstatement of the appeal is not necessary to enable the court to do justice between the parties in the next two months, or at all.
No other consideration relevant to the reinstatement of the appeal suggests itself.
Weighing those matters tells strongly against the reinstatement of the appeal, which would be futile. The mother’s application for reinstatement is dismissed.
APPLICATION IN RELATION TO TRANSCRIPT
Given that the appeal is taken to be abandoned, and will not be reinstated, it is unnecessary to consider the mother’s application in relation to the transcript, which will also be dismissed.
OUTCOME
The mother’s Application in an Appeal filed 24 March 2023 will be dismissed, and her appeal remains taken to be abandoned.
COSTS
In the event the mother’s Application in an Appeal failed, the father made an application for his costs in the sum of $557.60. I am satisfied that in the circumstances of this application, where the mother has unsuccessfully sought an indulgence necessitated by her failure to comply with procedural orders, she should pay the father’s costs in the claimed sum within 28 days. Her claimed inability to pay even such a modest sum, if correct, is in any event no bar to a costs order (Northern Territory v Sangare (2019) 265 CLR 164).
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 24 May 2023
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