Rumney and Sackes & Anor
[2020] FamCAFC 212
•28 August 2020
FAMILY COURT OF AUSTRALIA
| RUMNEY & SACKES AND ANOR | [2020] FamCAFC 212 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the application was filed 18 months after the time to appeal expired – Explanation for the failure to file a Notice of Appeal in a timely way is inadequate –Where the orders are no longer in operation and the appeal is futile – Where consideration of the grounds of appeal establish that it would not occasion an injustice to refuse an extension of time – Application dismissed. |
| Children and Young Persons (Care and Protection) Act 1998 (NSW) Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 |
| APPLICANT: | Mr Rumney |
| RESPONDENT: | Ms Sackes |
| INTERVENOR: | Secretary, Department of Communities and Justice |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 6011 | of | 2016 |
| APPEAL NUMBER: | EAA | 96 | of | 2020 |
| DATE DELIVERED: | 28 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 26 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 December 2018 |
| LOWER COURT MNC: | [2018] FCCA 4036 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Burridge and Legg Solicitors |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitors Office |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the Application in an Appeal filed by the father on 7 July 2020 be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rumney & Sackes and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 96 of 2020
File Number: SYC 6011 of 2016
| Mr Rumney |
Applicant
And
| Ms Sackes |
Respondent
And
| Secretary, Department Communities and Justice |
Intervenor
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed 7 July 2020, Mr Rumney (“the father”) seeks an extension of time in which to file a Notice of Appeal against interim parenting orders made in the Federal Circuit Court of Australia on 17 December 2018 (“the orders”).
The orders relate to Y, born in 2010 (“the child”) and concern the parties involved in the proceedings at the time of the hearing, including: the father, Ms Sackes (“the mother”) who is the child’s mother, the Secretary, Department of Family and Community Services New South Wales (now the Department of Communities and Justice) (“the Department”), who intervened in the proceedings and, the Independent Children’s Lawyer (“ICL”), who was appointed to represent the best interests of the child. Ms Rumney (“the paternal grandmother”) who is the father’s mother, was later joined to the proceedings and the subject orders predate her involvement. As it transpired the paternal grandmother did not participate in this hearing.
By his draft Notice of Appeal filed simultaneously with this Application, the father seeks an extension of time so as to appeal Orders 6- 12 of the orders, which provide, inter alia, that:
·the Minister for the Department exercise parental responsibility for the child (Order 6);
·the child’s living arrangements to be directed by the Department or their delegate (Order 7);
·the child spend supervised time with her parents as directed by the Department (Order 8);
·the parents are to attend random chain of custody drug urinalysis within twenty four hours of the request of the Department (Order 10);
·the parents be restrained from consuming or being under the influence of alcohol whilst spending time with the child (Order 9);
·the parents be restrained from being under the influence of illicit drugs while caring for or spending time with the child (Order 12(a));
·the parents be restrained from entering or approaching within 200 meter of the residence of the child, any educational institution attended by the child and, any venue whether the child is participating in extra-curricular activities (Order 11);
·the parents be restrained from exposing the child to any form of family violence (Order 12(d)); and
·the parents be restrained from physically disciplining or striking the child (Order 12(e)).
It is not entirely clear why the father is seeking to appeal these orders. They are no longer in operation and have been superseded; most recently by orders dated 31 March 2020. The 31 March 2020 orders provide the Department with sole parental responsibility for the child (Order 1), for the child to live with the mother (Order 2), spend no time with the father (Order 3) and spend time with the paternal grandmother, as directed by the Department (Order 6). The father may communicate with the child through letters and cards, which the Department is entitled to check to ensure the communication is appropriate (Orders 4 and 5).
When this was raised with the father, he explained that the only court with jurisdiction over the child is the Children’s Court of NSW. Thus, all orders made from December 2018 in the Federal Circuit Court of Australia and now this Court were made without power. It follows that the orders made by consent on 22 September 2016 are the only valid orders. Furthermore, that lawyers involved in the making of those later orders are guilty of criminal contempt as is the primary judge.
Background
Before the proceedings were transferred to this Court, the matter had a considerable history in the Federal Circuit Court. The mother first filed an application on 19 September 2016. Final Orders were made by consent on 27 October 2017 which provided for equal shared parental responsibility between the parents, that the child live with the mother and spend time with the father on four nights a fortnight.
An urgent application was filed by the mother on 19 January 2018, at which time she said that the father had removed the child and retained the child in his care. The child was returned to the mother.
In February 2018, the mother took the child to Queensland without the father’s consent. On 18 February 2018, the father filed an application seeking a recovery order. On 17 October 2018, a recovery order was made for the child to be returned to the father, provided that the father resided with the paternal grandmother who has a history as a departmental foster carer [3].
The hearing before the primary judge on 17 December 2018 arose from an application brought by the Department following the removal of the child from the father’s care due to concerns for her safety. The orders the subject of the proposed appeal were pronounced that day with the consent of the mother and the ICL.
The primary judge was satisfied that the orders sought by the Department should be made and in her reasons for judgment given ex tempore at the conclusion of the hearing, her Honour described the situation thus:
5.This has all happened very quickly, and no doubt further material will be provided in due course. In terms of options for [the child’s] current living arrangements, the orders that are sought by [the Department] are with the consent of the [ICL] and the mother.
6.The father was present at court earlier. He was aware of the orders sought. He has now left the courtroom.
7.In the circumstances of this matter, it is appropriate that I make the orders sought by [the Department] to provide for [the child’s] best interests in the immediate (sic). Serious concerns have been raised about her safety, leading to the removal. These orders will enable a more detailed examination of her circumstances in due course.
As mentioned earlier, there have been several interlocutory hearings since then and various interim parenting orders made by reason of which the 17 December 2018 orders cease to operate.
On 3 April 2019, the matter was transferred to the Family Court of Australia and on 31 March 2020 an order was made for the preparation of a Family Report, as well as the orders for parental responsibility and care arrangements outlined above.
Apropos the assertion by the father of criminal contempt, on 15 July 2020, a senior registrar made on order (Order 15) that:
If the father continues to assert that a lawyer representing him has ceased to act because another lawyer acting in the case (in any capacity) has threatened that solicitor in any manner, then the father must file and serve an Affidavit setting out his precise evidence in relation to such threats and its connection with the lawyer ceasing to act and must do so by 4 pm 13 August 2020.
The substantive proceedings are next listed before a registrar on 20 October 2020.
Application for an extension of time
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. 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 and the consequences for the parties of the grant or refusal of leave. I have already mentioned that this tranche of litigation concerns interim parenting orders that are no longer operative.
In order to determine whether or not compliance with the times fixed by the rules would have the rules become instruments of injustice, it is necessary to consider the possible merits of the proposed appeal. The point being, refusal of an application to extend time for an unmeritorious appeal would not work an injustice.
Explanation for the delay
By operation of r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) the last day to file a Notice of Appeal against orders dated 17 December 2018 was 14 January 2019. This application for an extension of time was filed on 7 July 2020, which was nearly 18 months after the time to appeal expired. The delay is extensive.
It would seem to be the case that the father failed to file his Notice of Appeal within the prescribed time due to his arrest on 18 December 2018, the day after the orders were pronounced (father’s affidavit filed 7 July 2020, paragraph 1). He spent 12 months in jail. This might explain some of the delay but it is this Court’s experience that prisoners can and do file court documents; indeed quite regularly. The father says that since his release on 23 December 2019, he attempted to obtain a grant of legal aid but was unsuccessful until about February 2020 (father’s affidavit filed 7 July 2020, paragraph 2). Despite receiving a grant of legal aid, he says that several law firms refused to act on his behalf or have subsequently withdrawn their representation (father’s affidavit filed 7 July 2020, paragraphs 4–5).
The father blames the ICL for the firms having pulled out but if he was as poorly behaved with them as he was during this hearing, there is another and more likely explanation. This hearing was conducted remotely with those appearing attending by telephone or audio-visual link. The father constantly spoke over the top of me and made it impossible for me to continue to speak. He did the same thing to those appearing for the other parties. The father was informed on a number of occasions that if he continued in this fashion, his microphone would be muted until there was something he should respond to. However, as fast as the Court muted the father, he unmuted himself. An obvious defect in the system. In short, the father could not be contained. Thus after the hearing had been underway for about 35 minutes, I terminated the hearing. That said, I understand the gravamen of the father’s case and am strongly satisfied he was given ample opportunity to make submissions in relation to it.
The effect of the father’s affidavit filed in support of this application is that he needed more time obtain legal advice. Whilst there is an explanation for the initial delay, this application was filed 19 months after the orders were made. The explanation for the delay is far from satisfactory and weighs against an extension of time being given.
Merits of the proposed appeal
In order to determine whether or not compliance with the times fixed by the Rules would have the Rules become instruments of injustice, it is necessary to consider the possible merits of the proposed appeal. The point being, refusal of an application to extend time or to reinstate an unmeritorious appeal would not work an injustice.
The grounds of appeal appear to assert:
· jurisdictional error in that the proceedings ought to have been determined by the Children's Court pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care & Protections Act”) (Ground 1); and
· the primary judge’s findings that the child was “in need of care and protection” was not supported by “any evidence” (Grounds 2 and 3);
In relation to Ground 1, the Federal Circuit Court is required to consider Part VII of the Family Law Act 1975 Cth (“the Act”) to ensure the best interests of the child is met “by protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” (s 60B(1)(b)). The Department’s application seeking orders for parental responsibility for the child arose out of “serious concerns” related to the child’s safety [7]. When the Department assumed the child’s care, it had a choice of whether to commence proceedings in the Children’s Court of NSW or a court exercising jurisdiction under the Act. Because there were proceedings in the Federal Circuit Court, the Department appropriately intervened in those proceedings. In so doing the Department invoked s 69ZK(1)(b) of the Act which is a complete answer to the father’s complaint that the orders were made in breach of s 69ZK.
In relation to Grounds 2 and 3, at the time of the interim hearing the Department had already removed the child from the father’s care. The issues concerning the child’s safety and wellbeing were still under investigation [1]–[2]. The orders formalised that arrangement to address the best interests of the child in the short term [7].
As already mentioned, the orders the father seeks to appeal are no longer in operation. They were expressed as “pending further order” and there have been subsequent hearings and further orders made. It follows that the appeal is without merit.
Prejudice
The effect of refusing the father’s application is that he will not be able to pursue his proposed appeal. However, the orders under appeal are interlocutory orders that are no longer in effect and he is not prejudiced if he is denied an extension of time to appeal.
Conclusion
The interests of justice weigh against an extension of time and the application will be dismissed.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 28 August 2020.
Associate:
Date: 28 August 2020
0