Ridge & Hurley
[2023] FedCFamC1A 157
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ridge & Hurley [2023] FedCFamC1A 157
Appeal from: Ridge & Hurley [2020] FCCA 1097 Appeal number: ADC 255 of 2016 File number: SOA 48 of 2020 Judgment of: CAMPTON J Date of judgment: 19 September 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Applicant seeking leave to file an application in an appeal out of time – Application in an appeal for review of orders refusing reinstatement of a notice of appeal – Where the grounds of appeal are excessively voluminous and repetitive – Where such review application has no real prospects of success – Where no prejudice to applicant is made out – Leave refused – Applicant to pay respondent’s costs Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Babcock & Gulati [2023] FedCFamC1A 113
Bemert & Swallow (2010) FLC 93-44; [2010] FamCAFC 100
Gallo & Dawson (1990) 93 ALR 479; [1990] HCA 30
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520
Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11
Sieger & Department of Communities and Justice [2020] FamCAFC 172
Number of paragraphs: 34 Date of hearing: 14 September 2023 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Ms Hume Solicitors for the Respondent: CG Family Law ORDERS
ADC 255 of 2016
SOA 48 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR RIDGE
Applicant
AND: MS HURLEY
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
19 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 28 August 2023 is dismissed.
2.The applicant pay the respondents costs fixed at $643 within 21 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ridge & Hurley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of an Application in an Appeal filed 28 August 2023, the father seeks:
(a)Leave to file this Application in an Appeal out of time;
(b)
If that leave is granted, to review the orders of an appeal judicial registrar made on
28 July 2023 refusing his Application in an Appeal filed 12 May 2023 to reinstate his Notice of Appeal filed 4 June 2020 from final orders made by a judge of what was then the Federal Circuit Court of Australia on 7 May 2020; and
(c)That his Notice of Appeal filed 4 June 2020 be heard.
The orders of the primary judge subject to challenge regulated the parenting of the child of the father and the mother. The father’s notice of appeal was deemed abandoned on
1 December 2020 after he failed to comply with a procedural order requiring him to file and serve an appeal book by 20 November 2020.
If leave is granted, the hearing of the father’s application to review the appeal judicial registrar’s orders would be an original hearing of his dismissed Application in an Appeal for reinstatement filed 12 May 2023 (see r 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)).
The mother opposes leave being granted to the father to review the appeal judicial registrar’s orders out of time, and if leave is granted, opposes the review for reinstatement.
For the following reasons, where the Notice of Appeal filed over three years ago has no real prospects of success and hence it would be futile to rehear the father’s Application in an Appeal seeking to have it reinstated, leave to the father to file his Application in an Appeal seeking to review the orders of an appeal judicial registrar made on 28 July 2023 is refused.
BACKGROUND
The parties married in 2013 and separated in October 2015. The child was born in 2015 and is currently eight years old.
The father commenced proceedings on 28 January 2016. He broadly sought orders for equal shared parental responsibility and an equal shared care arrangement of the child. The mother sought sole parental responsibility of the child, for the child to live with her and for time spent by the child with the father to be supervised. The parties later joined a property dispute to the proceeding.
The father’s affidavit in support of his Application in an Appeal records four years of chronic litigation including 38 court hearing events from 2016 until the final parenting orders subject to proposed challenge were made on 7 May 2020. The child was five years of age at that time.
The parenting trial was heard over 10 days commencing from 1 May 2019 in four blocks and concluding on 7 April 2020. The evidence focused on issues as to alcohol abuse, mental health challenges, family violence and unrelenting parental conflict.
The orders broadly provided for the mother to have sole parental responsibility for the child, for the child to live with the mother and spend six hours during the day on each alternate Sunday with the father, with changeover to occur at a professional change over venue.
The Notice of Appeal filed by the father on 4 May 2020 identified 112 grounds of appeal. The father failed to comply with a procedural order requiring him to file and serve an appeal book by 20 November 2020. Confirmation that the Notice of Appeal was deemed abandoned on 1 December 2020 was emailed to the parties on 2 December 2020.
Two years and six months later, on 12 May 2023, the father filed an Application in an Appeal seeking that his Notice of Appeal be reinstated. The mother by way of her Response to an Application in an Appeal filed 16 June 2023 opposed the relief of the father.
As identified in the father’s affidavit and expanded on by him during the hearing of his application before me, it is uncontroversial that:
(a)The father filed an application alleging contravention of the final parenting orders on 16 July 2020. He filed several affidavits in that proceeding. That application was dismissed on 29 October 2020;
(b)The father has not spent time with the child since 12 July 2020;
(c)The father was sentenced to a term of imprisonment in 2020 upon being convicted of offences in 2011. He remained incarcerated until late 2022 when he achieved home detention;
(d)
The property proceeding was listed for a number of court events throughout the balance of 2020 and during 2021, including 17 November 2020, 8 June 2021,
5 August 2021, and 6 December 2021. The mother said that on these occasions’ appearances were made on his behalf. The father said they were not. I am unable to make any determination as to this issue. The father agreed that during 2021 he had both filed affidavits in the property case while he was in prison and engaged in a series of formalized negotiations with the mother. The mother said he retained legal representation in the property dispute during 2021. The father denied he did. The property proceeding was finalised on an undefended basis as against the father on 27 January 2022; and
(e)The father filed an initiating application on 7 May 2023 seeking to discharge or vary the primary parenting orders under appellate challenge. That proceeding was first listed before the Federal Circuit and Family Court of Australia (Division 2) on 3 July 2023. He also at or about that time filed an Application—Contravention of the 7 May 2020 primary parenting orders, but was uncertain as to the date of filing. It is next listed before a senior judicial registrar on 13 October 2023. He said his objective in relation for each of those applications is to agitate either a variation or discharge of the primary orders under challenge. His Application in an Appeal filed 12 May 2023 to reinstate his Notice of Appeal was filed five days after his initiating application for discharge or variation.
LEGAL PRINCIPLES
The application for leave to extend the time to review the order made by the appeal judicial registrar to refuse the application to reinstate the appeal
Pursuant to r 13.40(2) of the Rules, the father was required to file his application to review the orders of the appeal judicial registrar within 21 days of them being made, being before 18 August 2023. His relief sought acknowledges that he required leave, pursuant to r 15.06 of the Rules, to file his application in an appeal by way of review. It was filed 10 days out of time. He seeks leave to extend the time for its filing.
The High Court in Gallo & Dawson (1990) 93 ALR 479 recorded that it is essential for the proper operation of a system of justice for time limits to be imposed, but that time limits should not in and of themselves become instruments of injustice. A time limit is a general rule. Any provision for an extension to the limit is an exception to the general rule. The High Court further stated that in considering whether indulgence should be afforded to a litigant seeking to extend a time limit imposed by rules or legislation, it is important to have regard to the general perception that delay to proceedings may risk effecting a deterioration in the quality of justice to be achieved. The authorities further make it clear that the Court should be liberal in extending any indulgence of leave to avoid hardship.
The issue is whether the strict application of the Rules would constitute an injustice. For the purposes of this application for leave, it is incumbent upon the father to address:
(a)That he has a prima facie case for relief sought; and
(b)Whether a denial of an extension of time would cause him hardship.
The application to reinstate the appeal
Rule 13.44 provides that “a party may apply to have an appeal taken to be abandoned under this Chapter reinstated”. That rule does not provide any specified criteria to be considered in the exercise of discretion by the court. This was confirmed by the Full Court in Bemert & Swallow (2010) FLC 93-441 (“Bemert & Swallow”), where their Honours concluded at [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.
Despite that statement however, the Full Court in Bemert & Swallow identified that the principles applicable in determining an application for an extension of time derived from the authorities, apply equally to an application for reinstatement of an appeal. The central issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, and in considering the attainment of justice, the following factors are relevant:
(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; and
(d)Any prejudice or consequence to the parties depending upon the result of the application.
In Babcock & Gulati [2023] FedCFamC1A 113 at [17], Austin J explained that:
The questions of whether the appeal should initially have been permitted to be brought out of time and whether it should now be re-instated both turn, essentially, upon whether or not the applicant can demonstrate there is a substantial issue to be raised in the appeal. That issue is always central to the inquiry, because it is futile permitting an appeal to be prosecuted if it lacks apparent merit. If there is a substantial issue to be raised in the appeal, then other considerations influence the exercise of discretion, such as the extent of the delay, the cogency of the reasons offered for the delay, whether hardship or prejudice would accrue to a party, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened (Gallo v Dawson (1990) 93 ALR 479; Jackamarra v Krakouer and Anor (1998) 195 CLR 516).
THE FATHER’S APPLICATION
As a starting point, the resolution of the father’s application for leave to extend the time to review the orders made by the appeal judicial registrar and to reinstate his appeal pivots from the merit of his appeal.
Before considering the grounds of the notice of appeal sought to be re-instated, it should be noted that an appeal against the exercise of discretion falls to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499 (“House v The King”). That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at [519]).
Therefore, an appeal is not an opportunity for the appellant to re-run their case in an attempt to convince the appeal court that, absent appealable error of the kind identified in House v The King, it should nonetheless come to a different conclusion. However, in large part, that appears to be what the father is attempting to do by way of his application to reinstate his appeal.
The 112 grounds of appeal include statements asserting a denial of natural justice, a failure of the trial judge to take certain matters into appropriate consideration or at all, that the trial judge considered irrelevant matters, mistakes of fact and mistakes of law. A court is entitled to be circumspect about the merit of all the grounds of appeal when they are so voluminous and assert many different errors from a discretionary first instance judgment (Sieger & Department of Communities and Justice [2020] FamCAFC 172 at [20] – [22]). The purported grounds are not in any way grouped into categories of orthodox appellate challenge. They are intensely repetitious. The vast majority of the purported grounds are not competent or proper grounds of appeal at all. They do not address, much less illuminate, the challenge made by each particular ground.
The father conceded that his grounds of appeal were “not in satisfactory form” and that he would like to “reduce and shorten” them. He had not done so for the past three years. Enquiry was made as to whether he could select what he considered to be the most meritorious three grounds of challenge asserted. He stated that he would like the opportunity to do so, however he would not be able to “do it today”. In the course of oral submissions he said that the errors in the primary determination were broadly that:
(a)The primary judge’s remarks indicated that the child should have meaningful time with the father, however the orders made did not in fact provide for meaningful time. The father did not identify any particulars as to this error. The primary judge recorded the opinion of the expert as to what could occur in optimal circumstances for the child and made findings that the child’s circumstances are far from optimal (at [141] – [142]). The primary judge provided clear and cogent reasoning balancing the various conflicts between both the father and the mother as well as their respective families, the father’s challenges with letting go of old grievances and the risk to the child being repeatedly involved in future significant conflict between the parents. At [146] he determined at that the father’s conduct directed towards to the mother poses significant risk to the child requiring a minimum contact between the parents that would “inevitably mean that the father has a less than optimal relationship with [the child]. That does not mean that it cannot still be meaningful.” Longstanding authority identifies that a meaningful relationship is not necessarily an optimal one is well established. (see Mazorski & Albright (2007) Fam LR 518). The reasons concludes that the orders sought are in the best interests of the child (at [155]). The father’s complaint is without merit.
(b)The primary judge refused to allow him to cross-examine the court parenting expert. This complaint is untenable. The primary judge records (at [6] and [136]) the range of topics covered by the father in his cross examination of the expert, including that this he had this opportunity “at length”. This ground is unfounded.
(c)The primary judge did not adequately consider the child’s wishes. This complaint fails. The primary judge extensively examined the views of the child as recorded in the reports of the single parenting expert. The judge accepted expert’s opinion that it was not a question of whether the child would enjoy the time with her father, as the child seemed equally interactive, playful, and relaxed in both parents’ care, but that the risk to the child of being exposed to ongoing conflict between the parents was paramount (at [138]). The child’s views and their foundation were considered and weighed by the primary judge [at 147].
(d)That adequate weight was not placed on the mother’s mental health, and further that the facts of the mother’s mental health were not disclosed to the single parenting expert. This complaint is forlorn. The subject matter is extensively canvassed throughout the reasons. Not only did the primary judge expressly “give significant weight to the anxiety and depression experienced by the mother”, but he also further made it clear that it “was unsatisfactory that she did not raise those matters” with the single parenting expert and that “she should have been more frank with her in that regard” (at [153]). The father had suggested throughout the proceedings that the mother suffered from a bipolar disorder that posed a risk to the child. The primary judge found that that the “the father did not accept the evidence of the mother’s treating psychologist” (at [66]) and found that there was no evidence supporting the father’s submission (at [154]). The trial judge went on to express that “the father’s preoccupation with the mother’s mental health has been counter-productive to his own case” (at [154]). Each of these findings were open on the evidence.
(e)That the trial judge placed weight on the “coercive and controlling behaviour” of the father, however only evidence to support this finding was by citing the father’s case outline. Implicitly, the challenge is that the finding was not open on the evidence. This complaint is also absent merit. The single parenting expert opined that the initial orders sought by the father were “extremely onerous” and “coercive and controlling” (at [138]). The primary judge found that the orders sought by the father at the beginning of the trial were unduly onerous and notwithstanding that they had been tempered somewhat by closing submissions, nevertheless the orders he sought had a coercive and controlling aspect to them with respect to the mother and her family (at [6] and [145] – [146]). The findings were open and available to the primary judge.
There is no ostensible merit in the broad complaints identified by the father. Unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors. A number of authorities emphasise the importance of an appellant properly particularising the asserted error which they contend was made by the primary judge (See Newett and Newett (No 2) (2021) FLC 94–051 at [34]).
CONCLUSION
The onus is upon the father to demonstrate the prospects of success and merits of his appeal. The onus is not discharged.
The onus is upon the father to establish on the evidence an adequate explanation for his delay of two years and six months in seeking to reinstate the appeal. The reason of his incarceration is inconsistent with his continued capacity to engage in continuing litigation between the parties. The mother has relied on the integrity of the final orders made three years ago. The father has not discharged this onus. His explanation for delay is not adequate.
The history of the litigation up to the primary orders under challenge and the subsequent continued relentless litigation and conflict between the parents is a relevant factor weighing against the relief sought by the father, especially when it is coupled with the father’s current pending applications to vary the primary parenting orders under challenge. The objective of the father, whether by way of reinstatement of the appeal or by way of his applications to vary, is to seek greater time with the child.
The father submits there is no disadvantage to the mother should the appeal be reinstated as she has the benefit of a grant of legal aid. He further submits that the mother suffers less prejudice than him should the appeal be reinstated. I do not accept either submission. The mother will be required to defend an appeal absent apparent merit. The process of that litigation is of itself one that generates anxiety and stress and is compounded by simultaneously defending the father’s current pending two separate avenues of relief to vary the primary orders under challenge. The father did not identify any forensic advantage he would achieve by simultaneously prosecuting an appeal from the primary orders made more than three years ago and his current first instance applications to vary those same orders, especially where he asserts each of the later has substantial merit. If his application in an appeal is dismissed, his other applications remain on foot.
Notwithstanding the comparatively modest delay of 10 days in filing application in appeal to review, the failure of the father to establish the merit of his appeal leads to the conclusion that the re-instatement application, if the leave sought was granted, would fail. Hence granting leave to review the orders of the appeal judicial registrar would be futile. Further, the father has not established that there is an adequate explanation for his delay in seeking reinstatement of the appeal or that he will suffer prejudice if his application is refused. I am satisfied that the mother would suffer prejudice if the appeal was reinstated.
The Application on an Appeal of the father filed 28 August 2023 will be dismissed.
COSTS
The mother sought her party/party costs fixed at the legal aid rate in the sum of $634.
The implicit premise advanced for the claim for costs was that the father was wholly unsuccessful (see s 117(2A)(e) of the Family Law Act 1975 (Cth) (“the Act”)).
I am satisfied in the circumstances of this matter that this is sufficient reason to depart from the presumption that parties should bear their own costs of proceedings under the Act (ss 117(1) and 117(2)). An order will be made for the father to pay the mothers costs within 21 days.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 September 2023
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