Selby and Davey
[2013] FamCAFC 37
FAMILY COURT OF AUSTRALIA
| SELBY & DAVEY | [2013] FamCAFC 37 |
| FAMILY LAW ─ APPEAL ─ Application for an extension of time within which to file a notice of appeal ─ Where the proposed ground of appeal did not even begin to raise the prospect of the applicant having merit ─ Where apart from the absence of anything raised by the applicant which calls into the slightest doubt the correctness of the decision of the Federal Magistrate, nothing emerging from his Honour’s reasons for judgment does, or could possibly do so ─ Where there was a complete absence of even a hint of possible appealable error ─ Where there was no explanation for the applicant’s failure to file a notice of appeal within time ─ Where there would be a substantial detriment to the respondent if this application was granted, principally in terms of the absence of certainty and finality in the caring arrangements for the children ─ Where to grant the application would be to countenance an abuse of the Court’s processes on a substantial scale ─ Application dismissed. |
| Family Law Act 1975 (Cth) |
| Lindon v The Commonwealth(No. 2) (1996) 70 ALJR 541 |
| APPLICANT: | Ms Selby |
| RESPONDENT: | Mr Davey |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Weate |
| FILE NUMBER: | SYC | 1860 | of | 2010 |
| APPEAL NUMBER: | EA | 155 | of | 2012 |
| DATE DELIVERED: | 14 March 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 14 March 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 3 September 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1112 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| THE RESPONDENT: | In person by telephone |
Orders
That the Application in an Appeal filed 5 December 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Selby & Davey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 155 of 2012
File Number: SYC 1860 of 2010
| Ms Selby |
Applicant
And
| Mr Davey |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE
REASONS FOR JUDGMENT
Before the Court is the application of Ms Selby to extend time to appeal against orders made in parenting proceedings by Scarlett FM on 3 September 2012. Time to appeal against the learned Federal Magistrate’s orders as of right expired on or about 3 October 2012. The applicant sought to file a Notice of Appeal on 5 December 2012, that is to say approximately two months out of time.
The current application was necessary by virtue of the applicant’s failure to file a Notice of Appeal within time. In support of her application for an extension of time the applicant swore an affidavit on 19 November 2012. It was brief. It reads:
On 12th of May 2011 a court order was made for children to live with father, come back to court on 7th May 2012. A court order was made on the 3rd September 2012 for children to live with there father due to mother with chest pain. (Errors as in original)
Annexed to the affidavit were a number of documents. The first appears to be a copy of a Ventolin Inhaler package. The document, beyond recording an expiry date for the package of December 2012, and a batch number, does not appear to in any way indicate to whom it related or by whom it was prescribed or when it was. At least inferentially in some way which is not readily apparent the applicant seeks to explain her failure to file an appeal within time in reliance upon that package. The page also contains what appears to be a prescription issued by a Medical Centre, for Symbicort Turbuhaler. Without venturing any medical opinions, beyond the Court’s competence, it is probably sufficient to note that the prescription appears to relate to something different to Ventolin. It was dated 3 September 2012.
Presumably, although it is not asserted, the applicant contends, given its date, and the date of the judgment of the learned Federal Magistrate, and the hearing before his Honour, that the medication thus prescribed in some way affected the applicant’s attendance before the Court.
On 1 August 2012 and also appearing in the first annexure to the affidavit, annexure A, is what appears to be a script filled by a Pharmacy of medication described as Zoton Fastabs tablet (oral disint). The medication appears to contain Lansoprazole. It clearly relates to the applicant.
On none of the documents on this page is there a hint of evidence which could safely be relied upon establishing that either on that or any other day, the applicant was unable, by reason of ill health, to have attended Court.
The second document, page B, is another prescription for Zoton Fastabs issued by the same pharmacy in the same terms as the previous prescription. It was dated 26 April 2004. Clearly not part of the document issued by the pharmacy, presumably written on page B by the applicant, are the words, “Stomack pain” [sic].
The third document attached to the affidavit, is dated 14 March 2012. It appears to be a printout of results obtained by some electronic device to which the applicant was presumably attached or in some way connected. What it means, the Court cannot begin to guess. All that appears on the document of any possible relevance, under the heading “Non-Confirmed Diagnosis”, are the words, “Normal sinus rhythm within normal limits.” That document could not possibly advance the applicant’s case for an extension of time.
The fourth document attached to the affidavit is a medical certificate issued by Centrelink. The document appears to be issued by Dr S. The condition apparently diagnosed by the doctor was described as temporary. Symptoms referred to were chest tightness. Under the heading “Treatment Current”, the word “nil” was written in by the doctor. Under the heading “Treatment Planned”, the doctor wrote, “Only if,” and then the balance of the words are unreadable by virtue of the faintness of the photocopy. The document appears to record either that the applicant had been a patient of the practice since February 2003 or February 2013. It is not entirely clear but the document does seem to be dated 21 November 2012, which is potentially significant because under the heading “Capacity to Work or Study”, the doctor expressed the opinion that as and from a date 19 days prior to the certificate, the applicant, by virtue of these chest pains for which nothing had been prescribed or was planned to be prescribed, had been unfit for work or study. How the document could possibly advance the current application is unclear.
That is the evidence upon which the applicant relies for an extension of time. As the authorities make clear, there are a number of factors that are relevant to the granting an extension of time for appeal (see Lindon v The Commonwealth(No. 2) (1996) 70 ALJR 541). The first is the apparent merit of the proposed appeal. In her proposed Notice of Appeal, the applicant’s only ground of appeal reads:
For children living with there [sic] father.
Or perhaps:
Fear children living with there [sic] father.
The latter, whilst not remotely resembling a ground of appeal, may well be what the applicant intended to convey. As would be clear beyond doubt, a ground of appeal in those terms, whatever the actual terms are, could not, without a great deal more, even begin to raise the prospect of the applicant having merit.
The applicant appears to have some medical issues or difficulties. That is said in the light of findings of fact of the learned Federal Magistrate. For more abundant caution, the Court had regard to the reasons for judgment of the Federal Magistrate with a view to discerning whether, as Kirby J said in Lindon v The Commonwealth(No. 2), however inexpertly articulated by the applicant, there may be something which could possibly enliven appellate intervention.
The learned Federal Magistrate recorded the history of proceedings. That history of proceedings was, uncontroversially it would seem clear beyond doubt, that there was a hearing in the Federal Magistrates Court on days in April and May 2011 which resulted in a judgment whereby the two children of the former relationship of the applicant and Mr Davey, the respondent, were to continue to residing with the respondent. The learned Federal Magistrate recorded, it seems reasonably clear, that the applicant did not attend that hearing, that is, the hearing in 2011. The applicant was present before the learned Federal Magistrate in September 2012.
Whatever happened in the 2011 proceedings, one thing is clear beyond doubt, and that is that the orders then made have never been the subject of a successful appeal by the applicant. The background to the proceedings determined by the learned Federal Magistrate was summarised by his Honour in a number of paragraphs of his reasons for judgment. Significantly, both before his Honour, and for present purposes, although assisted by an attorney on an amicus curiae basis the applicant failed to file pleadings or affidavits in the lower Court, either in accordance with directions or otherwise.
That situation continued until 18 June 2012, at which time the applicant filed a short affidavit. The applicant failed to attend a child dispute conference scheduled for 6 July 2012. A subsequent conference was scheduled for 30 July 2012. The respondent appeared, the applicant appeared 40 minutes late, by which time the respondent had, not surprisingly, been invited to, and in fact, did leave the building.
The learned Federal Magistrate referred to the affidavits which were before the Court in the proceedings before his Honour. His Honour referred to a document tendered by the Independent Children’s Lawyer (“ICL”) in relation to the applicant’s apparent health, or the need for evidence in relation to it. In a letter to the applicant, the ICL requested that the applicant attend a pathology laboratory for urine testing for illicit drugs under approved chain of custody procedure. No drug test report was ever produced.
The evidence before the learned Federal Magistrate, which his Honour accepted, was that subsequent to 13 May 2011, during which time the children of the relationship had been in the care of the respondent, they had no contact with the applicant. The respondent gave evidence before the learned Federal Magistrate that a child of the applicant of another relationship was asserted to have been removed by the Department of Family and Community Services, and that there had been no contact, and placed with that child’s maternal grandparents.
The learned Federal Magistrate reiterated that the applicant had not complied with requests to undertake drug testing. His Honour found that the respondent had submitted to urinalysis drug testing with negative results. The learned Federal Magistrate referred to matters recorded by the family consultant in documentation which was clearly before his Honour (see paras 22, 23, 24 of his reasons for judgment). His Honour did, under the heading “The Family Consultant’s Opinion”, record a number of matters, some four of which emerged from the family consultant’s memorandum of 30 July 2012, which recorded:
·Any consideration to changing parenting arrangements would need to be made with reference to information supplied by Family and Community Services.
·There is no doubt that the mother loves her children but it is difficult to see how, at this stage, it would be in the best interests of the children to undergo further disruption to their lives, without the mother showing a greater change of circumstances and a greater commitment to engaging in appropriate professional circumstances.
·It would be of some benefit to the children if they were able to some contact with their mother at a professional contact centre.
·The parties might wish to contact [omitted] Community Services Office to ascertain whether [X] and [Y] could attend with [Z] when [Z] spends time with the mother.
It can in summary be said that the matters recorded by the family consultant provided no support for the applicant’s claim that the children’s best interests would be served by the children residing with her.
The learned Federal Magistrate, under the heading “Conclusions”, traversed the best interests of the children in the light of such evidence as there was before his Honour. His Honour referred, at paragraph 36, to the paramountcy of the children’s best interests, and with respect, correctly did he so do. His Honour found that the evidence suggested that the children had done “well over the past year and four months in the care of their father”. His Honour (at para 37) again referred to the family consultant’s memorandum in which is was suggested that the children’s best interests, in the absence of the mother:
...“showing a greater change of circumstance and a greater commitment to engage in appropriate professional services”...
would be problematic, were they to be residing with her.
Importantly, the learned Federal Magistrate (at para 37) found:
...The evidence, including the mother’s own evidence, is clear that the mother has continued to use marijuana and alcohol and has become more isolated than before.
His Honour also and significantly recorded in paragraph 38 that it was “astonishing” that the mother had:
...deliberately refrained from seeking to have any communication with the children throughout the period of one and a third years whilst they have been living with their father.
In reliance upon those findings of fact, the learned Federal Magistrate drew a number of inferences in paragraph 39 of his reasons, and contrasted the position of the applicant with that of the respondent, of whom he recorded that there were no “such concerns”. Other s 60CC matters were traversed by the learned Federal Magistrate in a way which, with respect to his Honour, accords both the statute and the authorities in relation to the operation of the relevant statutory provisions.
Not surprisingly, given the findings of fact of the learned Federal Magistrate and the inferences drawn by his Honour in reliance upon them, he concluded, at paragraph 53 that it was in the best interests of the children to continue to live with their father, have supervised time with their mother. Sole parental responsibility was ordered by his Honour, and with respect, on the findings of fact made by his Honour, was the only finding reasonably open to him.
Quite apart from the absence of anything raised by the applicant which calls into the slightest doubt the correctness of the decision of the learned Federal Magistrate, nothing emerging from his Honour’s reasons for judgment does, or could possibly do so. Given the complete absence of even a hint of possible appealable error, the application should be dismissed.
It is strictly unnecessary to consider the other two factors which are relevant to the exercise of discretion in the event of the first requirement being satisfied, but for more abundant caution the Court will briefly refer to those two factors.
The first of those matters is whether there has been an adequate explanation of delay. There simply has not. There is no explanation of the applicant’s failure to apply within time. She does not, for example, assert that she did not know that there was a time limit, or provide anything remotely resembling an explanation.
The other factor is prejudice to the respondent. Whilst it is clear that the benefit of success before the learned Federal Magistrate by the respondent has not been impeded or delayed by the present application, the respondent is entitled to certainty. He is entitled to get on with his life, and with the care of the children in circumstances where, on such evidence as there is, it is improbable that he is receiving any financial assistance from the applicant or is likely to, and albeit he has been unrepresented before the Court today, and, it seems, before the learned Federal Magistrate, the respondent may, if leave is granted, for more abundant caution need to secure legal representation.
There would be a substantial detriment to the respondent were this application to be granted, principally in terms of the absence of certainty and finality in the caring arrangements for the children. In short, to grant this application would be to countenance an abuse of the Court’s processes on a substantial scale. The Court will not do that.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 14 March 2013.
Associate:
Date: 21.03.2013
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