Rubin & Rubin

Case [2022] FedCFamC1A 148

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Rubin & Rubin [2022] FedCFamC1A 148

Appeal from: Rubin & Rubin [2022] FedCFamC2F 747
Appeal number(s): NAA 164 of 2022
File number(s): MLC 13880 of 2020
Judgment of: AUSTIN J
Date of judgment: 23 September 2022
Catchwords: FAMILY LAW – APPEAL – Application in an appeal – Review of decision – Where the appeal registrar dismissed an application for leave to bring an appeal out of time – Leave to appeal – Where the delay was not gross – Where the appeal lacks utility – Where none of the proposed grounds of appeal ostensibly have any merit – Application dismissed – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 61DA, 65D, 65DAC, 70NBA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Cranston & Persson (No.2) [2022] FedCFamC1F 187

Dacombe & Paddison (2021) FLC 94-068; [2021] FedCFamC1A 103

Dacombe & Paddison [2022] HCASL 73

Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Spencer v the Commonwealth (2010) 241 CLR 118

Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 40
Date of hearing: 23 September 2022
Place: Newcastle (via video link)
Counsel for the Applicant: Mr King
Solicitor for the Applicant: Ashley, Francina, Leonard & Associates
Counsel for the Respondent: Ms Tiernan
Solicitor for the Respondent: Barbayannis Law

ORDERS

NAA 164 of 2022
MLC 13880 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS RUBIN

Applicant
AND:

MR RUBIN

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

23 September 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 12 September 2022 is dismissed.

2.The applicant shall pay the respondent’s party/party costs of and incidental to the application in the fixed sum of $8,324.

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 Rubin & Rubin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN J:

  1. By an Application in an Appeal filed on 12 September 2022, the applicant sought the review of the decision made by the appeal registrar on 22 August 2022 dismissing her application to bring an appeal out of time from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on…

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AGLC
Rubin & Rubin [2022] FedCFamC1A 148
Case
[2022] FedCFamC1A 148
Decision Date

CaseChat Overview and Summary

Rubin & Rubin involved a dispute between the parties over the issue of their children's COVID-19 vaccinations. The case was before the Federal Circuit and Family Court of Australia, which had previously made orders regarding the children's care. The respondent sought to have sole parental responsibility for the children's vaccination decisions, while the applicant opposed this and sought either sole responsibility herself or a stay of proceedings pending unrelated litigation in the Federal Court. The primary judge dismissed the applicant's application for a stay and granted the respondent sole parental responsibility for vaccination decisions. The applicant then attempted to appeal the decision, but her application for leave to appeal out of time was dismissed by the appeal registrar. The applicant sought a review of that decision.

The legal issues before the court were whether the applicant's application for leave to appeal out of time should be granted and, if so, whether costs should be awarded on an indemnity basis. The court found that the application was not grossly delayed and that the delay was due to the applicant's solicitors not acting promptly. However, the court found that the proposed grounds of appeal had no merit and that there was no substantial issue to be appealed. The court also found that while the applicant's case was wholly unsuccessful, this did not justify an order for indemnity costs. The court ordered that costs be payable on a party/party basis.

In conclusion, the application for leave to bring the appeal out of time was dismissed. The court found that the applicant's proposed grounds of appeal had no merit and that there was no substantial issue to be appealed. The court also found that while the applicant's case was wholly unsuccessful, this did not justify an order for indemnity costs. The court ordered that costs be payable on a party/party basis and set the costs at $8,324.

Orders

Orders of the court

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Background

Background to the litigation

The application is dismissed for the following reasons, meaning the order made by the appeal registrar on 22 August 2022 will stand.Background The parties have two children, currently aged nine and six years. Orders in respect of the children were made with the parties’ consent on 29 March 2021, thereby concluding their dispute under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Relevantly for present purposes, the orders vested the parties with equal shared parental responsibility for the children. Apparently, the orders were implemented uneventfully until the parties reached an impasse over the children’s vaccination against COVID-19. To break the deadlock, the respondent filed an Initiating Application on 4 February 2022 seeking orders to facilitate the children’s vaccination over the applicant’s objection by giving him sole parental responsibility for that discrete issue. The applicant joined issue by filing a Response on 8 March 2022, in which she opposed the relief sought by the respondent. She principally sought the dismissal of the respondent’s application and, instead, her investiture with sole parental responsibility for all vaccination decisions related to the children, but alternatively, a stay of the proceedings until judgment was delivered in unrelated proceedings pending before the Federal Court of Australia, between an incorporated anti-vaccination interest group and the federal Department of Health. The discrete issue was listed before the primary judge for hearing on 12 April 2022. The hearing proceeded by way of submissions, with no witness being cross-examined. Judgment was then reserved and delivered on 9 June 2022. The primary judge determined to dismiss the applicant’s application to stay the proceedings and to instead decide the dispute without delay. In so doing, the primary judge determined to vary the existing order allocating the parties with equal shared parental responsibility for the children by ordering that the respondent would have sole parental responsibility for the children with respect to the specific issue of their receipt of vaccinations against COVID-19. The applicant’s lawyers almost immediately corresponded with the respondent’s lawyers forewarning of her intention to appeal but, on 7 July 2022, the appeal limitation period lapsed without any appeal being filed. It transpired that the applicant’s principal lawyer had suffered some ill health, which necessitated his short hospital stay, compounding the lawyer’s delay in acting upon the applicant’s instructions to appeal. An Application in an Appeal was filed on 1 August 2022, seeking leave to bring the appeal out of time, which application was heard by the appeal registrar on 9 August 2022 and dismissed with reasons on 22 August 2022. The applicant’s Application in an Appeal filed on 12 September 2022 now requires the review of that decision by way of hearing de novo. To prosecute her application, the applicant relies upon:(a)the affidavit of her lawyer, filed on 1 August 2022 in support of her application for an extension of time before the appeal registrar, to which is annexed the Notice of Appeal in draft format which she wants to file; and(b)her affidavit filed on 12 September 2022 in support of this review application.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant’s proposed appeal was about 24 days late, so the delay was not gross, and was caused by the applicant’s solicitors not acting upon her instructions in a timely way. The adverse consequences of the lawyer’s modest error would not ordinarily be visited upon the applicant (Allesch v Maunz (2000) 203 CLR 172 at 186; Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at [14], [33], [68] and [70]). Such delay does not stand in the way of the application, though the attribution of fault for the delay to her lawyers does not cure the other defects in the proposed appeal.Conclusion The application for leave to bring the appeal out of time is dismissed. The respondent sought an order for the applicant’s payment of his costs of the application, preferably on an indemnity basis. The application for indemnity costs was premised upon the claim that the “[applicant’s] case is hopeless”. The review application was indeed wholly unsuccessful (s 117(2A)(e)), but that is a feature which will incline a Court to depart from the ordinary rule for parties to bear their own costs and award costs (s 117(1)); not a feature which impels an order for indemnity costs. Neither party was legally aided (s 117(2A)(b)) and the applicant received property worth well in excess of $1 million from the property settlement between the parties in July 2021, so her financial circumstances are not such as to preclude a costs order against her (s 117(2A)(a)). Her own costs schedule reveals she has incurred costs with her own lawyers of over $24,000, presumably since she first tried to obtain leave from the registrar to bring her appeal out of time by the application filed on 1 August 2022. Her lawyers’ costs notice, dated 20 September 2022, declares she pays their costs from her savings. The respondent asserted he made an offer to the applicant in April 2022 to vaccinate the children with the medication of her choice, which offer was not accepted. The implication that those facts, if accepted, should influence the exercise of discretion (s 117(2A)(f)) is rejected. Any costs order pertains only to this review application, commenced by the applicant’s filing of the Application in an Appeal on 12 September 2022 and concluded by these reasons. The applicant abandoned her reliance upon an affidavit filed by her solicitor on 20 September 2022, in which event there was no evidence adduced and no submission made about any offer to settle the review application. An order for costs is made in the respondent’s favour because the review application was wholly unsuccessful, but the costs will be payable on only a party/party basis. The respondent assessed his party/party costs at $8,324 (rounded to the nearest dollar), with which quantum the applicant did not cavil, so that sum is fixed pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Ratio Decidendi

Legal Principle Established

None of the proposed grounds of appeal appear to have any merit and so the applicant fails to surmount the first hurdle. No “substantial issue” is raised. There is no point granting leave to bring an apparently unmeritorious appeal out of time, regardless of other discretionary factors. However, some further pertinent observations may be made for the applicant’s edification.Other discretionary considerations Another consideration counts against the applicant. It is common ground that the children have already been given the first two doses of the vaccine (apparently on 13 June 2022 and 7 August 2022) and so any appeal could therefore only potentially affect the parties’ exercise of parental responsibility concerning the children’s administration with booster shots. The mischief which the applicant had sought to avoid – being the children’s administration with any COVID-19 vaccination at all – has already occurred and cannot be reversed. The proposed appeal may not entirely futile, but the utility is certainly limited. The subject judgment determined only which of two parents should have exclusive parental responsibility for their children in one limited respect, so it is not one which engages the public interest and would incline the Court to extend time to entertain the appeal despite the lack of utility. The applicant’s proposed appeal was about 24 days late, so the delay was not gross, and was caused by the applicant’s solicitors not acting upon her instructions in a timely way. The adverse consequences of the lawyer’s modest error would not ordinarily be visited upon the applicant (Allesch v Maunz (2000) 203 CLR 172 at 186; Jackamarra v Krakouer and Anor (1998) 195 CLR 516 at [14], [33], [68] and [70]). Such delay does not stand in the way of the application, though the attribution of fault for the delay to her lawyers does not cure the other defects in the proposed appeal.Conclusion The application for leave to bring the appeal out of time is dismissed. The respondent sought an order for the applicant’s payment of his costs of the application, preferably on an indemnity basis. The application for indemnity costs was premised upon the claim that the “[applicant’s] case is hopeless”. The review application was indeed wholly unsuccessful (s 117(2A)(e)), but that is a feature which will incline a Court to depart from the ordinary rule for parties to bear their own costs and award costs (s 117(1)); not a feature which impels an order for indemnity costs. Neither party was legally aided (s 117(2A)(b)) and the applicant received property worth well in excess of $1 million from the property settlement between the parties in July 2021, so her financial circumstances are not such as to preclude a costs order against her (s 117(2A)(a)). Her own costs schedule reveals she has incurred costs with her own lawyers of over $24,000, presumably since she first tried to obtain leave from the registrar to bring her appeal out of time by the application filed on 1 August 2022. Her lawyers’ costs notice, dated 20 September 2022, declares she pays their costs from her savings.