Reid and Thompson
[2008] FamCAFC 102
•11 July 2008
FAMILY COURT OF AUSTRALIA
| REID & THOMPSON | [2008] FamCAFC 102 |
| FAMILY LAW - APPLICATION FOR EXTENSION OF TIME TO APPEAL PARENTING ORDERS AND CONTRAVENTION APPLICATION ORDERS – Where application for extension of time sought in respect of both parenting orders and orders made at conclusion of contravention hearing – Where delay by applicant in respect of the parenting orders not satisfactorily explained – Where no issue about delay in respect of the contravention orders - Where proposed grounds of appeal unlikely to succeed – Where prejudice to father unlikely to be ameliorated by mother paying costs – Where applicant may pursue application to re-open or application at first instance by reason of changed circumstances – No injustice to the mother – Application dismissed. |
| Family Law Act 1975 (Cth) – s 60CC, s 94AAA Family Law Rules 2004 (Cth) – r 1.14, r 22.02, r 22.03, r 22.12, Ch 22 |
| Allesch v Maunz (2000) 203 CLR 172 CDJ v VAJ (1998) FLC 92-828 De Winter & De Winter (1979) FLC 90-605 Gallo & Dawson (1990) 93 ALR 479 Mackey v Mackey [2007] HCA Trans 271 (28 May 2007) McMahon & McMahon (1976) FLC 90-038 Taylor & Taylor (1979) 143 CLR 1 Tormsen & Tormsen (1993) FLC 92-392 |
| APPLICANT: | Ms Reid |
| RESPONDENT: | Mr Thompson |
| FILE NUMBER: | NCM | 2630 | of | 2006 |
| APPEAL NUMBER: | EA | 73 | of | 2008 |
| DATE DELIVERED: | 11 July 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 8 July 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 20 September 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 867 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Jane Adams Lawyer |
| SOLICITOR FOR THE RESPONDENT: | Borthwick & Butler |
Orders
That the mother’s application filed 20 June 2008 is dismissed.
That either party may file brief written submissions in respect of costs of this application by filing such submission with the Appeal Registrar, Eastern Appeal Registry on or before 31 July 2008 and serving a copy of the submission on the solicitor for the other party.
IT IS NOTED that publication of this judgment under the pseudonym Reid & Thompson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 73 of 2008
File Number: NCM 2630 of 2006
| Ms Reid |
Applicant
And
| Mr Thompson |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Reid (“the mother”) and Mr Thompson (“the father”) are parents of an eleven year old boy, “A”. The parties have been involved over several years in proceedings concerning arrangements for A.
In 2001 the parties agreed on parenting arrangements for the child and consent orders were made under the Family Law Act 1975 (Cth) (“the Act”).
However, in November 2006, the father filed an application in the Federal Magistrates Court to vary the orders. That application was heard on an undefended basis on 20 September 2007 in circumstances I will shortly explain. On 23 October 2007 Federal Magistrate Lucev published reasons for judgment and made orders which, in broad terms, provided for the parties to have equal shared parental responsibility for the child, that the child live with the mother and spend time with the father each alternate weekend, and for school holiday periods and other special occasions. The orders also provided for the father to be able to communicate with the child by telephone on three occasions each week. To facilitate change-over between the parties, the orders provide for the mother (or her nominee) or the father (or his nominee) to deliver the child to the Caltex Service Station at [a New England township] (“the change-over point”).
On 11 March 2008 and 1-2 April 2008 Federal Magistrate Jarrett heard and determined a contravention application filed by the father. Federal Magistrate Jarrett ordered that the mother enter into a bond, that the father have three periods of compensatory time with the child, and the mother pay the father’s costs in the sum of $2,131.00.
On 20 June 2008 the mother filed an application in which she seeks an extension of time in which to bring appeals against the orders of Federal Magistrate Lucev of 23 October 2007 (“the substantive orders”) and the orders of Federal Magistrate Jarrett of 2 April 2008 (“the contravention orders”).
The father in his response filed 7 June 2008 seeks the dismissal of the mother’s application, and an order that she pay his costs of the application.
The mother relies on an affidavit of her solicitor Jane Maree Adams sworn or affirmed (the jurat not being completed) on 17 June 2008 on a Federal Magistrates Court of Australia form. That affidavit, somewhat unusually, annexes an affidavit sworn or affirmed by the mother on 19 May 2008.
The father relies on his affidavit either sworn or affirmed on 3 July 2008. I will return to discuss the affidavit material shortly.
Because of the parties’ geographic locations, I permitted this hearing to be conducted via telephone.
Background
According to the father the parties commenced cohabitation in September 1996. The child was born on 26 November 1996. The parties separated in August, 1998. At this time the father asserts the mother moved to [S], a township on the mid-north coast.
The parties lived at [D], a small Northern tablelands township, until the child was about two years of age. The father says he lived in [D] NSW for the previous fifteen years.
The father asserts that following the parties’ separation he moved to the mid-north coast area to be near the child.
In 2001 the parties agreed to the making of consent orders which orders provided that the child should live with the mother and spend regular periods of time with the father. The father had responsibility for collecting and delivering the child at the commencement and conclusion of periods he was to spend with the father.
In November 2006 the father filed an application in the Federal Magistrates Court which he sought to vary the consent orders. The father’s application was ultimately heard by Federal Magistrate Lucev on 20 September 2007.
The father asserts that leading up to the hearing the mother was represented by a solicitor, Ms Carty.
The court record of the Federal Magistrates Court discloses appearances on 24 November 2006, 16 January 2007, 8 March 2007, 5 April 2007, 23 April 2007 7 May 2007, 4 September 2007, 20 September 2007. On each of these occasions the mother was legally represented.
On 7 May 2007, when the mother was legally represented, the following orders were made by Federal Magistrate Donald:
1.The matter is adjourned to 10.00am 4 September 2007 for mention to fix a date for hearing in the week commencing 17 September 2007.
2.Both parties file and [sic] affidavits upon which they rely by 24 August 2007.
3.The Respondent file and serve an Amended Response within 21 days.
4.The Applicant to pay the hearing fee or obtain a waiver by 24 August 2007.
5.Liberty is granted to vacate the hearing date if terms of settlement are filed.
6.The Applicant is granted leave to appear by telephone.
On 4 September 2007 the matter was listed before Federal Magistrate Donald who fixed the matter for hearing on 20 September 2007 for a half day. The mother was legally represented at this mention.
On 20 September 2007 the matter commenced before Federal Magistrate Lucev at 10.25 am. The mother’s solicitor, Ms Filewood, appeared and leave was granted for her to withdraw. Judgment was reserved and reasons published and orders made on 24 October 2007 by Federal Magistrate Lucev.
Subsequently the father brought enforcement proceedings which were dismissed, and then a contravention application, which lead to the orders of Federal Magistrate Jarrett of 2 April 2008.
Ms. Adams commenced acting for the mother on or about 4 April 2008.
Evidence
It is convenient to commence with the evidence of Ms Adams.
Ms Adams says, in respect of failure to file an appeal against the contravention orders within 28 days of the date of the order, that the fault was her fault, and not that of the mother. At paragraph 2 of her Affidavit she deposes:
The primary reason for not filing an Appeal within 28 days of the date of Federal Magistrate Jarretts [sic] Orders relate solely to my own workload and not to any tardiness on the client’s behalf.
In respect of the substantive orders, Ms Adams asserts it would be in the interests of justice “to have the matter reconsidered”. I will return to this part of Ms Adams’ affidavit, which I have treated as a submission, later.
In respect of the substantive orders the mother asserts:
6.I state that I was not present either or [sic] in person or by telephone when the Orders of 23 October 2007 were made as I believed I was still being legally represented with a grant of Legal Aid as I had attended my solicitors [sic] on a number of occasions to discuss what action to take in this matter and had not been advised they were no longer acting on my behalf.
7.A week or so later I received the Orders of 23 October 2007 by personal courier to my door. I once again attended my solicitors as I was concerned I could not comply with the Orders as I have no vehicle and a limited income. I was once again assured the matter was being dealt with.
8.I was shocked to learn I was not represented when the Orders were made after we had discussed the matter in [sic] length. I believe there was a lack of communication between my solicitor and myself.
In his affidavit the father sets out much of the background history I have already recorded. As to 20 September 2007, the hearing date before Federal Magistrate Lucev, he deposes at paragraphs 10 to 13:
10.On the 20th September, 2007 my wife [H] and I were driving to the Court for the hearing. In the course of the trip both my mobile and [H’s] mobile rang on a number of occasions. The calls were from [the mother]. [The mother] and I spoke about a number of matters relating to [A]. She then said “Are you going to Court today?” I said “We are on our way to Court for the hearing. We can talk about it with the Judge.”
11.When we arrived at Court [the mother] did not appear and as indicated above her solicitor sought leave to withdraw. The Court obtained details from me of [the mother’s] telephone number and her address and to the best of my knowledge tried to contact her whilst we were at Court.
12.Subsequent to the hearing date the Court forwarded a Notice to [the mother’s] address noting the date upon which the Judgement [sic] was to be handed down. Annexed and marked “B” is a copy of the said letter.
13.When the matter came before the Court on the 23rd October, 2007 I appeared by telephone. Once again [the mother] did not appear in person or by telephone.
In his reasons for judgment at paragraph 6 Federal Magistrate Lucev explained:
The solicitor for the Mother sought leave to withdraw at the outset of the hearing. The solicitor advised the Court that no instructions had been received by [sic] the Mother, who had been advised of the hearing date by the solicitor. Leave to withdraw was granted.
The application to extend time to file an appeal in respect of the substantive orders
I propose to firstly consider the application to extend time to file an appeal against the substantive orders. I will consider the relevant statutory provisions and rules, the principles enunciated in the cases dealing with such application, and then discuss the merits of the mother’s application.
Relevant statute law and rules
Section 94AAA of the Family Law Act provides for appeals to this Court from decrees of the Federal Magistrates Court. It provides as follows:
Section 94AAA Appeals to Family Court from the Federal Magistrates Court and the Magistrates Court of Western Australia
(1) An appeal lies to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; or
(b) a decree or decision of a Federal Magistrate exercising original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
(1A) An appeal lies to the Family Court from:
(a) a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under this Act; or
(b) a decree or decision of a Family Law Magistrate of Western Australia exercising in the Magistrates Court of Western Australia original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
(2) Subsections (1) and (1A) have effect subject to section 94AA.
(3) The jurisdiction of the Family Court in relation to an appeal under subsection (1) or (1A) is to be exercised by a Full Court unless the Chief Judge considers that it is appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single Judge.
(4) Subsection (3) has effect subject to subsections (8) and (10).
(5) An appeal under subsection (1) or (1A) is to be instituted within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed in accordance with the standard Rules of Court.
(6) On an appeal under subsection (1) or (1A), the Family Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re‑hearing on such terms and conditions, if any, as it considers appropriate.
(7) If, in dismissing an appeal under subsection (1) or (1A), the Family Court is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form.
(8) A single Judge or a Full Court may:
(a) join or remove a party to an appeal under subsection (1) or (1A); or
(b) make an order by consent disposing of an appeal under subsection (1) or (1A) (including an order for costs); or
(c) give directions about the conduct of an appeal under subsection (1) or (1A), including directions about:
(i) the use of written submissions; and
(ii) limiting the time for oral argument.
(9) The standard Rules of Court may make provision enabling matters of the kind mentioned in subsection (8) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(10) Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1A); or
(b) for leave to amend the grounds of an appeal under subsection (1) or (1A); or
(c) to reinstate an appeal under subsection (1) or (1A) that, because of the standard Rules of Court, was taken to have been abandoned; or
(d) to stay an order of the Family Court made in connection with an appeal under subsection (1) or (1A); or
(e) for an extension of time within which to file an application for leave to appeal; or
(f) for security for costs in relation to an appeal; or
(g) to reinstate an appeal dismissed under a provision of the Rules of Court; or
(h) to adjourn the hearing of an appeal; or
(i) to vacate the hearing date of an appeal; or
(j) to expedite the hearing of an appeal;
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
(13) The single Judge referred to in subsection (3), (8) or (10) need not be a member of the Appeal Division.
Chapter 22 of the Family Law Rules, 2004 (“the rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal (Form 20).
Rule 22.03 provides that a Form 20 must be filed within 28 days after the order appealed from is made. Rule 22.12 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Rule 1.14 of the rules permits a party to seek an order extending time even though the time fixed under the rules has passed.
Relevant legal principles – application for extension of time to appeal
The relevant principles to be applied in deciding whether to extend time for lodging an appeal, or an application for leave to appeal, are set out in Gallo v Dawson reported in (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The 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, the proposed grounds of appeal and the consequences for the parties for the grant or refusal of the leave.
The principles have been referred to in a number of cases in this Court including McMahon & McMahon reported in (1976) FLC 90-038 at 75,144, Tormsen & Tormsen (1993) FLC 92-392 at page 80,017 and Gallo v Dawson (supra) at 480 to 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.
In this case the mother asserts she was not present in Court, or legally represented, and did not become aware of the substantive orders until she received a sealed copy of the orders by courier. The principles which are applicable when an order is made in the absence of a party and without their knowledge are well established. In Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 90-033 the High Court noted the well known practise of a party being able to seek to have orders made without notice to that party set aside. The majority Gaudron, McHigh Gummow and Hayne JJ referred to the early discussion in Taylor & Taylor (1979) 143 CLR 1; (1979) FLC 90-674. The discussion by Kirby J in his separate judgment is particularly apt in this case. His Honour said at paragraph 35:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice” It is a rule of natural justice or “procedural fairness” It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden. [footnotes omitted]
His Honour went on at paragraphs 38-41 to note:
[38] The facts and issues are set out in the reasons of Gaudron, McHugh, Gummow and Hayne JJ (the joint reasons). Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is providedhttp://thomsonnxt4/links/Handler.aspx?tag=d5e616aaa64b673c1d7eed9add56a95e&product=cl. Affording the opportunity is all that the law and principle require.
[39] Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
[40] Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself acceptedhttp://thomsonnxt4/links/Handler.aspx?tag=537e9ec5a4c6cc99cce33d1b6577ccd8&product=clhttp://thomsonnxt4/links/Handler.aspx?tag=43d8e82968df7d825edc84534f6dd645&product=nswlr), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
[41] Nevertheless, mistakes occurhttp://thomsonnxt4/links/Handler.aspx?tag=537e9ec5a4c6cc99cce33d1b6577ccd8&product=clhttp://thomsonnxt4/links/Handler.aspx?tag=45362a8ce0bd83d6ec14f3bec996e0bd&product=cl. In legal proceedings, they sometimes occur because of defaults on the part of lawyers which, in a particular case, ought not to be visited on an innocent client… [footnotes omitted]
Discussion
(a) History of the proceedings
I have already recounted the relevant material which sets out the history of the proceedings.
(b) The conduct of the parties
The father’s affidavit material sets out a number of assertions about notice given to the mother before the judgment was handed down on 23 October 2007. Annexure “B” to the father’s affidavit is a letter dated 19 October 2007 from the Federal Magistrates Court to each of the parties. The residential address shown on the letter is identical to the residential address which the mother gives in her affidavit. I accept in these circumstances, on the balance of probabilities, the mother received that letter, but did not respond to it.
The father deposes that the mother attended Court on 3 December 2007 and was aware of the Federal Magistrate’s orders at that time because she was served with a copy of the orders annexed to his application. He relies on an affidavit of service. I accept the mother was served with the application and a copy of the orders on 20 November 2007.
I also accept from the documents annexed to the father’s affidavit that the mother was served with a contravention application filed by him on 9 January 2008 but failed to appear before the Court on 11 March 2008. I accept the mother was represented when the contravention application was adjourned but no application was made at that time for an extension of time to appeal or it appears, to re-open. None of these matters support the exercise of discretion in the mother’s favour.
(c) The nature of the litigation
Although this application is not one in which the best interests of the child are my paramount consideration, the child’s best interests are a highly relevant factor.
The mother’s solicitor submitted today that if an extension of time was not granted, then the mother would need to bring proceedings at first instance. The father’s solicitor indicated his client was loath for there to be further proceedings, and mediation would be appropriate to endeavour to resolve the issue of a change-over point. I see much common sense in the latter submission. If an extension of time is granted, it does not follow that an appeal will automatically succeed. Even if an appeal is successful, it is likely, given the hearing was undefended, that it would be necessary to remit the matter for re-hearing before a Federal Magistrate at first instance. It appears to me that unless the parties are able to engage in sensible negotiations in respect of the substantive orders, then there will be further litigation regardless of whether an extension of time is granted or not which, because of its effect on the parties, is not likely to be in the best interests of the child.
In any event, it is apparent from the submissions before me the mother would seek to adduce further evidence on the hearing of an appeal. In CDJ v VAJ (1998) FLC 92-828 the majority, in discussing the admission of further evidence on appeal, at paragraph 119 noted:
…
Applications for a variation of an order, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal.
From the submissions made on behalf of the mother, it appears to me that an application at first instance to re-open would be appropriate if the mother maintains a misunderstanding between herself and her former solicitor, or a fresh application if there has been a change of circumstance since the making of the order.
(d) Consequence for the parties of the grant or refusal of the application for extension of time
I have already canvassed the likely scenarios if an extension of time is not granted (or indeed if it is granted).
(e) The prospects of success of the appeal
The question of the strength of the proposed grounds, and the potential injustice to the mother if leave is not granted are in my view the most significant factors to be considered in the exercise of my discretion. The proposed grounds of appeal are brief. They are as follows:
1.The Appellant was not present and not represented and the Orders mark a significant change from a longstanding status quo.
2.The Respondent does not live at [D] but at [E] which is closer to the pick up point.
3.The pick up point is not half way between the parties’ residence as envisaged by FM Lucevic [sic].
It would not be appropriate for me to deal extensively with the proposed grounds on this application. It is necessary however that I give some consideration to the grounds. In so doing I am considerably hampered in that I do not have the benefit of the material which was before the learned Federal Magistrate or the transcript of the proceedings before him. It is clear however from his Honour’s reasons (paragraph 9) that he had limited material before him. His Honour noted at paragraph 12 that the father “lives at [D]. The Father told the Court at the hearing, and the Court can take judicial notice of the fact, that [D] is about a five hour drive from [the mid-north coast]”.
I propose to firstly consider proposed grounds 2 and 3. There grounds essentially assert errors of fact by his Honour. In De Winter v De Winter (1979) FLC 90-605 Gibbs J said at 78,091-78,092:
It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v. Storie (1945) 80 C.L.R. 597 , both Latham C.J., at p. 600, and Rich J., at p. 604, cited from the judgment of Viscount Simon L.C. in Blunt v. Blunt (1943) A.C. 517, at p. 526:
If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court’s discretion will have been exercised on wrong or inadequate materials . . . .
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p. 137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth (1953) 94 C.L.R. 621, at p. 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.
In his affidavit the father deposes at paragraph 43 as follows:
In relation to paragraph 11 of [the mother’s] Affidavit I state that I commenced the proceedings for Final Orders in November 2006. At that time I was living fulltime [sic] in [“D” a small Northern tablelands township] with my wife [H], her sons and our twins (born July 2006). My wife [H] and I purchased a property in [“E” a small Northern tablelands township] in mid 2007. We continued to live at [D] but moved some of our belongings to [E]. We did not relocate to [E] as our principal place of residence until November 2007 which was after the hearing date on the 20th September, 2007.
The father further deposes that the effect of his move to [E] is that he is approximately 20 kms closer to the change-over point than he was when he lived at [D]. The father says the distance between [E] and [the change-over point] is 106 kms, and the distance between [S, a township on the mid-north coast] and the change-over point is 220 kms.
The Federal Magistrate dealt with the father’s submissions in respect of change-over in his discussion of issues relating to family violence and said at paragraph 22:
Any difficulties that arise in relation to the possibility of family violence might be assisted by variation of the changeover requirements, especially as to where changeover is to take place. There may be some merit in the Father’s suggestion that there be a public place changeover to assist in preventing possible future exposure of the Child to family violence.
In his consideration of relevant factors under s 60CC (3) of the Act his Honour noted the following
· The parties appeared to have low income and minimal assets
· Expenses associated with the child spending time with the parents ought not to impose a disproportionate burden on one party
· There was no practical difficulty (as distinct from parent imposed difficulty) in the child spending time with each parent
· The time and expense involved in the existing changeover was “disproportionate” (pursuant to the consent orders the father was required to do all the travelling to effect change-over)
Thus his Honour concluded at paragraph 46:
An arrangement whereby changeover times are set, within a slightly flexible time band to allow for the vagaries and exigencies for travel in rural New South Wales at a public place equi-distant between the parties will in the Court’s view reduced [sic] the practical difficulty presently arising at changeover, and its consequence impact on the Father’s time spent with the Child.
My reading of his Honour’s reasons does not support an assertion that his Honour made any material error of fact which vitiated his discretion in dealing with the question of the change-over point, rather although his Honour referred to “equi-distant” point, he focused, not on a precise “half way” point, particularly given the lack of a township halfway between the parties’ homes, but a changeover venue which would provide a safe environment for the child. Thus I discern little prospects of success in respect of these grounds.
I turn to the mother’s more substantial proposed ground namely that she was not present and not represented and “the Orders mark a significant change from a longstanding status quo.”
I am satisfied there is little merit in this ground. First, the mother was legally represented at all times up to the hearing before his Honour, including the appearances before Federal Magistrate Donald, which I have set out above. I also have regard to the father’s evidence on this topic. The father deposes to his conversations with the mother on the hearing day and notice given to her of the ability to participate by telephone on 23 October 2007 which she ignored. These matters, coupled with the mother’s delay when later legally represented at enforcement and contravention applications, to raise the issue of her absence on 23 October 2007 and seek to re-open the matter demonstrates to me there is little prospect of success in respect of proposed ground 1.
(f) Can hardship or injustice to the respondent be compensated by an order for costs
It is clear from the Federal Magistrate’s reasons, and the parties’ affidavits, that neither is in a position to realistically afford the costs associated with an appeal, and the mother does not appear to have the capacity to pay the father’s costs of and incidental to the appeal if the appeal is unsuccessful. That latter factor too militates against the granting of leave.
(g) Delay by the mother and explanation for the delay
I have already dealt with the delay by the mother in respect of filing this application. I am satisfied the mother has not adequately explained why she delayed probably from November 2007, but at least from March 2008, to file this application.
Conclusions
Overall I am satisfied in the exercise of my discretion that strict compliance with the rules will not work an injustice if an extension of time is not granted in respect of the substantive orders. The mother has failed to satisfactorily explain her delay in filing this application, her proposed grounds of appeal have little merit and she is unlikely to pay any costs order made at the conclusion of an unsuccessful appeal. Further, if an appeal was heard and succeeded a re-trial would be almost inevitable. I take into account the mother now asserts she does not have a vehicle to effect changeover, and that she can make an application for variation of Order 3 of his Honour’s orders at first instance. Thus, I am satisfied the mother’s application in respect of the substantive orders should be dismissed.
Grant of an extension of time in respect of the contravention orders
As I have already noted the mother seeks an extension of time in which to appeal the contravention orders.
Ms Adams candidly acknowledged the delay in filing an appeal with the requisite time prescribed in the rules was not the fault of the mother.
At the hearing of this application I referred the parties to the decision of Heydon J in Mackey v Mackey [2007] HCA Trans 271 (28 May 2007). In that case his Honour was dealing with an application to re-instate an application for special leave where a solicitor failed to file documents by the due date. His Honour noted “[w]hile these events are regrettable, they are the kinds of events which can easily happen in professional practice. They are not events for which the husband was personally responsible”.
I accept Ms Adams’ acknowledged error gives a cogent explanation of why there was a delay in filing an appeal.
The mother relies on the same grounds in respect of this proposed appeal as her appeal against the substantive orders. The Federal Magistrate found the mother had breached the substantive orders without reasonable excuse and ordered that she enter into a bond, that the father have compensatory time with the child, and the mother pay the father’s costs of the contravention application.
As in her application for an extension of time in respect of the substantive orders, I consider that the merits of the proposed grounds are a significant matter for me to take into account in the exercise of my discretion.
Proposed ground 1 is in my view not available to the mother. She was properly served with the contravention application, but failed to appear in Court for the initial hearing of the application. The mother was legally represented at the adjourned contravention hearing.
I note that Federal Magistrate Jarrett’s reasons for judgment were not provided to me by either party on this application, and it appears his Honour’s reasons have not been published. In these circumstances, it is difficult to understand the basis of the mother’s assertion of error by his Honour.
There is no challenge to his Honour’s orders which reflect a contravention by the mother of the substantive orders proved, no challenge that his Honour was in error in the exercise of his discretion in finding the mother did not have on the balance of probabilities a reasonable excuse, or that his Honour did not apply the correct standard of proof in determining the application, or that he erred in the exercise of his discretion in imposing a bond and ordering compensatory time with the father. In short, the proposed grounds do not appear to have any merit insofar as they seek to challenge the contravention orders.
As with my consideration of the substantive orders, I am not satisfied the mother can ameliorate any prejudice to the father by payment of costs if an appeal is unsuccessful. I am also satisfied as the grounds disclose no proper grounds of appeal in respect of the contravention orders and therefore that strict compliance with the rules will not work an injustice on the mother. In coming to this conclusion I have carefully taken into account that no aspect of delay in filing the appeal should be sheeted to the mother.
Costs of this application
I have already noted that the father in his application sought that the mother pay his costs of this application. I did not have the benefit of submissions on costs due to the truncated nature of the hearing before me conducted by telephone. I was not informed if either or both parties are in receipt of legal aid. If both are in receipt of legal aid, I see little utility in making any order for costs in this application. I propose however to allow the parties a short time table if they wish to do so to make any brief written submissions about the costs of these applications.
I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
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