SEABRIDGE & SEARL - [2015] FamCAFC 131

FAMILY COURT OF AUSTRALIA

SEABRIDGE & SEARL

[2015] FamCAFC 131

FAMILY LAW – APPEAL – Application to extend time to appeal – Where the applicant was told to file her Notice of Appeal in the Brisbane Registry – Where the Brisbane Registry would not accept the filing of the Draft Notice of Appeal – Where there is a reasonable explanation for the delay – Whether there is sufficient merit in the appeal that granting an extension of time would not be futile – Application allowed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) s 22.03

Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513

APPLICANT:

Ms Seabridge

RESPONDENT:

Mr Searl

FILE NUMBER:

NCC

2227

2010

APPEAL NUMBER:

2015

DATE DELIVERED:

11 June 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

11 June 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 April 2015

LOWER COURT MNC:

[2015] FCCA 1057

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Oliak

SOLICITOR FOR THE APPLICANT:

Piper Craig Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Picker

SOLICITOR FOR THE RESPONDENT:

McNeilly Lawyers

Orders

Leave is granted to the Applicant Mother to rely upon an unsworn copy of an affidavit by the mother’s solicitor.
The original sworn affidavit of the mother’s solicitor is to be filed with the Registry and served upon the Respondent Father within forty eight (48) hours.
The Applicant Mother be granted an extension of time within which to file a Notice of Appeal against Orders made by Judge Coakes on 22 April 2015 provided that the Notice of Appeal is filed no later than 4:00 pm on 19 June 2015.
The Applicant Mother is to pay the Respondent Father’s costs of the Application in an Appeal filed on 27 May 2015 as agreed and in default as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seabridge & Searl has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 74 of 2015
File Number: NCC 2227 of 2010

Ms Seabridge

Applicant

And

Mr Searl

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 27 May 2015 Ms Seabridge (“the mother”), seeks an extension of time in which to file a Draft Notice of Appeal relating to parenting orders made by Judge Coakes on 22 April 2015. Mr Searl (“the father”) opposes the application, notwithstanding that the mother’s lawyer attempted, unsuccessfully, to file the Draft Notice of Appeal in the Brisbane Registry of the court on 20 May 2015, the last day on which it could be filed.
The mother was 39 at the time of the hearing before the trial judge and the father was 38. They had met in 1995, married in 1996 and separated in 2010. The proceedings concerned the appropriate parenting orders for their three children aged nine, seven and five at the time of the hearing.
The parties had lived in Sydney until 2007 when they moved to the mid-north coast after purchasing a business there. It did not go well, leading to stress and, on one occasion, a violent argument which led to a final Apprehended Violence Order being made on 26 July 2010 with the mother as the protected person and the father as the defendant.
On 26 March 2010 the father was admitted to the mental health section of E Hospital and discharged on 9 April 2010.
On 17 September 2011 the father was admitted to the mental health unit at D Hospital and later E Hospital. He was discharged on 1 October 2011.
On 27 November 2013 interim consent orders were made for the children to spend two hours each month with the father at a supervised contact centre. On the second day of the hearing before Judge Coakes, on 26 November 2014, the trial judge made an order providing for the children to spend three hours with the father on Christmas Day, provided that the father was accompanied by his new partner.
The principal issues before the trial judge were whether the father, by reason of his mental health issues or family violence, could be considered to pose a risk of harm to the children. There was an issue relating to the nature of the children’s relationship with him. These two factors lead to the issue of what time the children should spend with the father and, importantly, whether that time should be supervised, and if so, in what manner and for how long.
A further complicating factor was that at the time of the hearing the mother lived in Town H and the father in Town E. They are some 400 kilometres apart with a travelling time found to be between 4 ½ to 5 hours. The practical difficulty, expense and burden of travel all needed to be considered by the trial judge.
In general, these issues were determined in the father’s favour. He was found not to pose an unacceptable risk to the children. Orders were made for the parties to have equal shared parental responsibility for the children, who were to live with the mother. For the three months following the making of the orders the children were to spend weekends with the father from after school on Friday until 8:00 pm, and for eight hours each on Saturday and Sunday in the Town H area. Thereafter the children were to spend every third weekend with the father from 10:00 am Saturday until before school on the following Monday. In 2016 that time was to commence on Friday after school and in 2017 on the Thursday after school. They were to spend half the school holidays with him.
The applicable principles relating to this application are set out in Gallo v Dawson (1990) 93 ALR 479. An extension of time is not granted automatically and the court must be satisfied that the extension is necessary to do justice between the parties.
The court will have regard to the history of the proceedings, the nature of the litigation and the consequences of the making or the refusing of the orders sought.
The mother’s solicitor is in Town H. At the time of taking instructions from the mother, she was in Sydney. The mother’s solicitor received the relevant instructions on 18 May 2015 as appears in her later affidavit, or 20 May 2015 as suggested in her earlier affidavit. She deposed that the mother had difficulties in obtaining her file from her former solicitors in Town D and had only received it on 15 May 2015. She contacted the National Enquiry Centre on 20 May 2015 and was informed that, as the children were living in Town H, the Draft Notice of Appeal should be filed with the Brisbane Registry of the court, notwithstanding that the proceedings had been heard and determined in Newcastle. When the solicitor’s agent attempted to file the document in Brisbane they were informed that the document had to be filed in the Sydney Registry. By then, it was too late to do so.
The mother then acted reasonably promptly in bringing this application, waiting just seven days. Notwithstanding that there was no explanation given for the mother delaying until 18 May 2015 or 20 May 2015 to contact her present solicitors, I am satisfied that she has a reasonable explanation for not filing the Draft Notice of Appeal within the time prescribed by r 22.03 of the Family Law Rules 2004 (Cth).
If successful in the appeal, the mother seeks orders that, in effect, would see the regime put in place by the trial judge for the first three months continuing indefinitely. Importantly, however, there would be one change in that the time would be supervised by professional supervisors.
The contrast between the orders made and those sought by the mother is marked. The first provide for significant unsupervised time, whilst the mother’s orders never do. It is the mother’s contention that, in the absence of supervision, the father poses an unacceptable risk of harm to the children. That is a substantial issue with significant consequences for the children. This consideration favours an extension of time.
The father submits that the appeal does not have any reasonable prospects of success.
Counsel for the mother outlined, albeit briefly, the basis upon which the appeal is said to be based. In general it is said, as is suggested by the Draft Notice of Appeal’s proposed grounds of appeal, that the trial judge did not give sufficient weight to appropriate evidence. In particular it is suggested that the trial judge gave too much weight to the report of a family consultant in circumstances where that family consultant, it is said, did not fully consider the mental health issues of the father, family violence and other risk factors.
It was also said that the finding that the father posed no unacceptable risk to the children was made only because insufficient weight was given to particular pieces of evidence including the father’s failure to complete therapy what was said to be the failure of the psychologist caused by the father to have had regard to attempted suicides in 1993 or1995 and that early in the marriage he was prescribed Prozac.
As was indicated by counsel appearing for the mother they were intended to be examples of the attacks made upon the trial judge’s reasons and not a complete argument such as would be made on any appeal.
Counsel for the father points to the passages in the trial judge’s reasons where his Honour says that he took into account all of the medical evidence in the case and other factors which might be regarded as deficiencies in the father’s case, for example, difficulties that occurred sometime with drug testing. Having been taken to account, the counsel for the father submits that it will be very difficult for the mother to succeed on appeal.
Appeals particularly in parenting cases involving issues of weight can be difficult appeals in which to succeed as is made clear in Gronow v Gronow (1979) 144 CLR 513.
It is difficult of course to assess the strength of an appeal on the limited material that is available on an application such as this. Even taking into account the difficulties identified by counsel for the father it is impossible to say on this application that the appeal is entirely devoid of merit. The costs of any appeal will be a significant matter for both parties.
Taking all these matters into account I am satisfied that it is appropriate to extend the time for filing an appeal.
I order that the mother be granted an extension of time within which to file a Notice of Appeal against orders made by Judge Coakes on 22 April 2015 provided that the Notice of Appeal is filed no later than 4:00 pm on 19 June 2015.

Costs

The father seeks the costs of this application which is opposed by the mother who submits that the extension of time sought was short and that the submissions made by counsel for the father were not successful. Both those things are true but nonetheless the mother needed to bring an application before the court in order to be able to prosecute her appeal.
Although I have granted the extension of time as sought, I was concerned about the absence of an explanation for the time in which it took the mother to consult her present solicitors.
Given the nature of the application and the fact that the father has incurred legal costs of some significance in this application I am satisfied that the ordinary rule that each party should pay their own costs should be departed from and that the mother should pay the father’s costs of the application.
Therefore there will be an order that the mother will pay the father’s costs of the Application in an Appeal filed on 27 May 2015 as agreed or in default of agreement, as assessed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 11 June 2015.

Associate:

Date: 2 July 2015