Rubin & Rubin

[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 9 June 2022.

2. The application is dismissed for the following reasons, meaning the order made by the appeal registrar on 22 August 2022 will stand.

   Background

3. The parties have two children, currently aged nine and six years.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. The respondent maintained his opposition to the application.

    Legal principles

13. The pertinent question is whether the applicant should be granted leave to bring her proposed appeal out of time.

14. The legal principles which govern the determination of that question have been recited many times, but recently in Whitmore & Whitmore [2022] FedCFamC1A 75 by way of summary in these terms:

    17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.

    18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.

15. The parties agreed those principles govern the decision, but the concession had to be drawn from the applicant.

16. At various points, the applicant contended her grounds of appeal have “reasonable prospects” and do not lack merit. Indeed, she cited Spencer v the Commonwealth (2010) 241 CLR 118 in her written submissions as being authoritative, but therein the High Court specified “reasonable prospects” of the cause of action as being the test for the avoidance of its summary dismissal. That test is distinguishable from the test requiring a proposed appeal to raise a “substantial issue” before leave will be granted to bring it out of time.

17. As the applicant is seeking an indulgence to bring the proposed appeal out of time, the first task is to generally assess the proposed grounds of appeal for ostensible merit because, unless the grounds raise a “substantial issue”, it is pointless extending time to bring it.

    Is there a substantial issue to raise on appeal?

18. The grounds of appeal which the applicant intends to advance in respect of the decision made by the primary judge on 9 June 2022 are drafted as follows:

    1.The primary judge erred in granting leave to reopen the Final Parenting Order made in the proceedings on 29 March 2021.

    2.The primary judge erred in failing to have regard to the principle of finality in discharging or varying the Final Parenting Order in proceedings which had concluded.

    3.The primary judge erred in finding that the conduct of the Respondent in requiring the Appellant to submit the children of the marriage to an enforced vaccination programme shortly after the marriage ended by final order in the circumstances was a material change in circumstances.

    4.The primary judge erred in the construction and application of the statutory provisions under Family Law Act 1975 with respect to overriding the care decision of the Appellant in respect of her children.

    5.The primary judge erred in applying Cranston and Persson (No 2) [2022] FedCFamC1F 187 which is distinguishable or in error.

    6.The Family Law Act 1975 sections 43, 67ZC, 61D, 60CA, and 60CC are invalid to the extent that the provisions authorised the primary judge to impose medical services by enforced vaccination upon the children of the former marriage by the former husband thereby impairing the express constitutional freedom from civil conscription under Constitution section 51(xxiiiA).

    7.The primary judge erred in the interpretation and application of the Appellant's expert [Professor L], and/or the database of adverse events.

    8.The primary judge erred in finding that the Appellant had reached a predetermined view, and/or that she is sceptical of government generally or at all.

    (As per the original)

19. Grounds 1, 2 and 3 all purport to contend, though in different ways, that the orders made between the parties in March 2021 were “final” and not amenable to variation by the primary judge in June 2022. The proposition can be immediately rejected. The Act expressly recognises that parenting orders are never immutable and may be varied as required (s 65D(2)). Whether variation is required, or at least whether variation should be even considered, depends upon the establishment of materially changed circumstances demonstrating need (Rice and Asplund (1979) FLC 90-725).

20. Here, the parties were unable to exercise their equal shared parental responsibility to make a joint decision about the children’s vaccination. Having attempted to compromise, as the Act requires of them (s 65DAC), they remained deadlocked. The only remedy was an order by the Court to settle the dispute. The applicant submitted their disagreement over the children’s vaccination was “not a change in circumstances, let alone a material change” to warrant revision of the existing orders, but that cannot be correct for otherwise no deadlock between parents over important issues concerning their children – like their medical treatment, school enrolment, religious instruction, or the like – could ever be resolved.

21. The applicant could not rationally dispute that proposition, because just like the respondent, she sought an order to vary the existing orders. She proposed that, rather than the respondent, she be given sole parental responsibility in that limited respect. But the primary judge instead decided the respondent had the unilateral right to decide if, when and how the children would be vaccinated. Her argument in support of these grounds of appeal flatly contradicts the case she ran at first instance.

22. Ground 4 is meaningless without elaboration of the “statutory provisions” which the primary judge supposedly erroneously construed and applied when granting to the respondent sole parental responsibility for the children in one confined respect. But, again, this ground cannot sensibly be maintained in the teeth of her own application to have such parental responsibility.

23. The applicant’s written submissions made reference to “section 70BNA” (presumably meant to be s 70NBA), which is presently irrelevant because neither party prosecuted a contravention application against the other, but no mention was made of s 65D(2), which is critically important. The applicant submitted the primary judge misapplied ss 61DA(1) and 61DA(4) of the Act, which provisions respectively prescribe the application and rebuttal of the presumption that parents will have equal shared parental responsibility for their children whenever parenting orders are sought and made. Here, the parties already had equal shared parental responsibility but, since they could not reach agreement on an important issue, each sought an order giving them sole parental responsibility in respect of a single “major long-term issue” related to the children’s care, which dispute the primary judge duly decided.

24. Ground 5 contends for error by the primary judge applying Cranston & Persson (No.2) [2022] FedCFamC1F 187, which decision is alleged to be either distinguishable or wrong. However, they are bare assertions. The applicant did not make any submission how it would or could be contended the decision is distinguishable or wrong and, in the absence of such elaboration, the allegation does not manifest merit. The circumstances in that case were quite similar. Two parents were deadlocked over the vaccination of their children, which impasse was resolved by one parent being given sole parental responsibility to decide the issue for the children. Self-evidently, the evidence led in that case was different, but the issue was the same.

25. Ground 6 advances the audacious argument that various provisions of the Act are “invalid”, at least to the extent that they purport to empower a court exercising jurisdiction under the Act to make orders which enforce children’s vaccination, thereby impairing “express constitutional freedom from civil conscription”. Nor was this ground elaborated by any submission.

26. This argument is not novel as it has been made and rejected before (Dacombe & Paddison (2021) FLC 94-068 at [16]–[24]) and an application to the High Court of Australia for special leave to appeal was refused (Dacombe & Paddison [2022] HCASL 73). In any event, in this instance, no orders were made forcing the parties or the children to either do or submit to anything, so nobody was “conscripted”. The primary judge simply gave the respondent the authority to unilaterally decide what was best for the children in respect of their vaccination against COVID-19.

27. Ground 7 alleges the primary judge misunderstood and misapplied the evidence of the expert witness called by the applicant – the implication being that such evidence vindicated her opposition to the children’s vaccination and bound the primary judge’s decision. In support of the ground, the applicant submitted the primary judge treated the evidence as being “irrelevant”. None of those contentions is plausible.

28. The primary judge summarised the effect of the expert evidence (at [34]–[37] and [76]) and noted how the expert did not contend the children’s best interests would be infringed by their vaccination (at [103]–[104]). The expert only said it was “challenging” to make a “risk-benefit assessment” about the long-term benefits and safety of COVID-19 vaccines (at [76]). Given that summary, the mother did not articulate how the primary judge misunderstood the expert evidence, misapplied it, or treated it as being irrelevant.

29. The expert did gratuitously offer an opinion that the use of COVID-19 vaccinations “should remain a matter of choice for their parents”, which the applicant emphasised as being important. The primary judge recited that portion of the expert’s evidence (at [76]), but it was not an opinion given by the expert within the field of his specialised knowledge and experience and so was certainly not an opinion which ought have influenced, much less bound, the primary judge’s decision. The exercise of statutory power to decide upon whom to confer parental responsibility for the children to make decisions about their vaccination against COVID-19 was reserved exclusively to the primary judge, not to the expert.

30. Ground 8 asserts the primary judge erred by finding the applicant does not have “an open and objective mind” about the children’s vaccination against COVID-19 (at [92]). However, the finding could hardly have been any different. The primary judge recited the applicant’s own evidence that she had “serious questions and concerns as to as to the safety and efficacy of the Covid vaccine” (at [74]) and recounted the multiple bases upon which she opposed the children being vaccinated (at [75]). The applicant’s committed opposition to the children’s vaccination could not have been clearer. However, the applicant’s submissions were unhelpfully directed instead to the primary judge’s “adverse credit findings” rather than the supposedly mistaken finding of which this ground complains. The challenged finding was actually based upon acceptance of the applicant’s evidence.

31. 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

32. 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.

33. 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.

34. 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

35. The application for leave to bring the appeal out of time is dismissed.

36. The respondent sought an order for the applicant’s payment of his costs of the application, preferably on an indemnity basis.

37. 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.

1. 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.

2. 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.

3. 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).

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       23 September 2022