Seaward and MacDuff
[2012] FamCAFC 166
•12 October 2012
FAMILY COURT OF AUSTRALIA
| SEAWARD & MACDUFF | [2012] FamCAFC 166 |
| FAMILY LAW ─ APPEAL ─ Application to extend time to appeal interlocutory parenting orders ─ Where judgment reserved after final hearing of proceedings ─ Application dismissed with costs ─ Extending time in the circumstances would constitute an abuse of process. |
| Family Law Act 1975 (Cth) s 117(2) |
| Gallo v Dawson (1990) 93 ALR 479 Penfold v Penfold (1980) 144 CLR 311 |
| APPELLANT: | Mr Seaward |
| RESPONDENT: | Ms MacDuff |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | SYC | 2177 | of | 2011 |
| APPEAL NUMBER: | EA | 102 | of | 2012 |
| DATE DELIVERED: | 12 October 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 12 October 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 August 2011 |
| LOWER COURT MNC: |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Messner |
| SOLICITOR FOR THE RESPONDENT: | Abrams Turner Whelan Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
That the application in an appeal seeking an extension of time within which to lodge an appeal against orders of Federal Magistrate Sexton made on 22 August 2011 filed on 6 August 2012 is dismissed.
That the appellant pay both the respondent’s and the ICL’s costs of and incidental to the application in an appeal seeking an extension of time within which to lodge an appeal as agreed or assessed on a party and party basis.
Note: The Court provides certification for Counsels’ appearance in this matter.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Seaward & MacDuff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 102 of 2012
File Number: SYC 2177 of 2011
| Mr Seaward |
Appellant
And
| Ms MacDuff |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE
REASONS FOR JUDGMENT
The Court will refuse the applicant father’s application to extend time to appeal against interlocutory orders made on 22 August 2011 by Sexton FM, essentially for the following reasons.
If it became critical to do so, the Court would not accept the father’s explanation for his delay in seeking to challenge the decision of the learned Federal Magistrate. For the purpose of the ruling and the application of the principles emerging from decisions such as Gallo v Dawson (1990) 93 ALR 479, leave is not being refused on the basis that the father has inadequately explained his delay.
Leave is, however, being refused on the basis that to allow this application would be to countenance an abuse of the Court’s processes. That is because, if each and every complaint made by the father against the learned Federal Magistrate, the Independent Children’s Lawyer (ICL), and anyone else involved in the interlocutory orders of 22 August 2011 were established, it would change nothing. That is to say, the outcome of the final trial of the proceedings, from memory in May this year, will be determined on the basis that whatever was ordered, rightly or wrongly, on 22 August 2011 had the consequences which the evidence would have revealed that the orders had.
The Court cannot accept the father’s assertion that he was not able in the final hearing for any reason to agitate whatever complaint he had about the making of the interlocutory orders, whether that be in relation to the conduct of the party at whose suit the interlocutory orders were made, or the ICL, or otherwise. There are a number of decisions of this Court, notably single Judge Full Court decisions of Strickland J and myself, dismissing appeals against interlocutory orders in parenting proceedings in circumstances not dissimilar to those in the present case.
As suggested, it commonly occurs that notwithstanding that a final trial has been fixed for hearing interlocutory orders are challenged. In such circumstances, given that if the appeal is allowed all that would occur is that the interlocutory matter would be remitted for re-hearing, there is absolutely no utility in granting the appeal or extending the time in which to appeal. This case could be said to be one step further removed, and in a way that is even further detrimental to the father’s claim, insofar as not only has a final hearing been scheduled, but the final hearing has occurred.
As suggested to the father, if he is dissatisfied with the outcome of the final determination of the parenting proceedings he has a right, provided that he moves more expeditiously than he did with respect to the orders of 22 August 2011, to challenge that outcome by way of appeal to the Full Court. The father may or may not have cause to do that. The assertions of the father that in some way justice will not be done in the judgment in the final hearing are not able to be accepted by the Court, for a variety of reasons, not the least being the complete absence of any evidence to establish that such is likely to be the case.
As suggested to the father several times, to allow this application would, even if it succeeded, change absolutely nothing. The function of the Appeal Court, as the Family Law Act 1975 (Cth) (“the Act”) makes clear, is to correct error in decisions made. Its function is not to investigate the conduct of ICL’s or legal practitioners. Other bodies charged under various statutes have that obligation. The application is one which could have no possible practical utility. As the father readily acknowledged in circumstances if unsuccessful, and costs were awarded against him, those benefiting from such orders would be unlikely to recover anything by way of costs. To allow this application would be to countenance an abuse of the Court’s processes in the circumstances as they have emerged. The Court will not do that.
The Court is of the opinion that the father should pay the costs of the respondent, and the ICL of this application. The reason for that is, to use the terminology of section 117(2) of the Act, that the circumstances justify such an order. Those circumstances are primarily that this was, and was always going to be, a wholly unsuccessful application.
The only basis upon which the Court might, in those circumstances, be disinclined to award costs would be the asserted impecuniosity of the father, he being, he asserts, an undischarged bankrupt, having no income or property. That is a matter to be taken into account. It is not, however, as the section makes clear, a bar to the exercise of the discretion to make an order. The High Court in Penfold v Penfold (1980) 144 CLR 311 confirmed as much.
The practical position which applies is probably that an order will be unsatisfied, but that is not a reason to deny the respondent and the ICL the orders to which they are thoroughly entitled. They have been put to expense, notwithstanding that this application was foredoomed to failure.
Those resisting the father’s application could not take the risk that, by not appearing, they might, in some way, be seen to be not opposing it. Both the respondent mother and the ICL have appeared. Each has filed comprehensive and devastatingly effective submissions. They ought not be left bereft of, at least the opportunity to recover the costs which the mother has incurred, and the public purse has incurred in funding the ICL. The order will be that the application is dismissed with costs.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 12 October 2012.
Associate:
Date: 17.10.2012
0
2
1