SHEILL & MCMURR
[2014] FamCAFC 115
FAMILY COURT OF AUSTRALIA
| SHEILL & MCMURR | [2014] FamCAFC 115 |
| FAMILY LAW – APPEAL – Application in an Appeal – Where the mother sought an extension of time to file an appeal and expedition of the appeal – Where the evidence established an acceptable explanation for the mother’s failure to file a notice of appeal on time – Where the issues on appeal, if successful, could enable the court to set aside the orders – HELD – Appeal granted. |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Ms Sheill |
| RESPONDENT: | Mr McMurr |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5250 | of | 2007 |
| APPEAL NUMBER: | EA | 65 | of | 2014 |
| ORDERS MADE: | 2 July 2014 |
| DATE DELIVERED: | 7 July 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 2 July 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 April 2014 |
| LOWER COURT MNC: | [2014] FamCA 327 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Manning Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Spain |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders made 2 july 2014
Amended pursuant to Rule 17.02
That the time in which the Appellant Mother may file an appeal against orders of the Honourable Justice Foster made 14 April 2014 be extended to 4.00 pm on 4 July 2014.
That, the hearing of the appeal be expedited and will be heard by the Full Court sitting in Sydney on 16 July 2014 at 10.00 am.
Subject to any further order concerning the child’s attendance at X Public School orders 1 and 2 are subject to the mother’s compliance with the parties’ agreement:
(a)in the event the mother is unable to take the child to or from X Public School she agrees that on those days the child is in her care the father or the father’s mother at his request may do so; and
(b)on the basis the mother says she is presently unable to take the child to and from X Public School on the days the child is in her care the father or his mother will do so.
That the appeal books for the appeal comprise each of the following documents arranged in the following order:
1.Notice of Appeal to be filed on or before 4 July 2014;
2.Order of the Honourable Justice Johnston made on 4 September 2013 (as amended pursuant to the slip rule on 25 October 2013);
3.Order of the Honourable Justice Johnston made on 24 December 2013;
4.Order of the Honourable Justice Johnston made on 31 January 2014;
5.Order of the Honourable Justice Foster made on 11 April 2014;
6.Order of the Honourable Justice Foster made on 14 April 2014;
7.Reasons for Judgment of the Honourable Justice Johnston delivered 4 September 2013;
8.Reasons for Judgment of the Honourable Justice Foster delivered 14 April 2014;
9.Application in a Case filed by the father on 10 April 2014;
10.Affidavit of the father filed 10 April 2014;
11.Affidavit of the father filed 11 April 2014;
12.Affidavit of the mother filed 20 May 2014;
13.Transcript of Proceedings before the Honourable Justice Foster on 11 April 2014;
14.Transcript of Proceedings before the Honourable Justice Foster on 14 April 2014;
15.List of Exhibits.
That the Appellant Mother be responsible for the preparation of the appeal books.
That the Appellant Mother prepare a total of eight (8) copies of the appeal books, and file in the Sydney Registry of the Court on or before 8 July 2014, four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.20(2) of the Family Law Rules 2004, and two (2) copies of the appeal books on the Respondent Father, together with a copy of the certificate.
That pursuant to Rule 22.21 the appeal will be taken to be abandoned if the appellant fails to file the appeal books by the due date. If the appellant seeks an extension of time for filing of the appeal books, such extension should be sought with the written consent of the other party, or if such consent is not forthcoming, by filing an application in an appeal, with supporting affidavit, seeking such extension of time, prior to the close of business on the due date for filing of the appeal books being 8 July 2014.
That any application for leave to adduce further evidence and such further evidence be filed and served by 4.00 pm on 4 July 2014.
That the Appellant Mother file and serve her Summary of Argument and List of Authorities with the Eastern Appeals Registrar on or before 4.00 pm on 8 July 2014.
That the Respondent Father file and serve his Summary of Argument and List of Authorities with the Eastern Appeals Registrar on or before 4.00 pm on 14 July 2014.
On the application of the Independent Children’s Lawyer contained in her letter to the Appeal Registrar dated 18 June 2014, the Independent Children’s Lawyer is excused from further participation in the appeal.
That each party be at liberty to apply for any further directions regarding any question arising out of the appeal book index to the Appeals Registrar, and regarding any other issue, to a judicial member of the Appeal Division, upon five (5) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
That the costs of and incidental to this hearing be reserved to the Full Court.
To the extent these orders do not comply with the Family Law Rules 2004 there be dispensation from such compliance.
IT IS NOTED THAT
The estimated hearing time of the appeal is two hours.
Mr Othen is briefed to appear as counsel for the Appellant.
Mr Schroder is briefed to appear as counsel for the Respondent.
In the event either party seeks to rely on an exhibit in the proceedings he or she shall provide photocopies of such exhibit for members of the Full Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sheill & McMurr 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 65 of 2014
File Number: SYC 5250 of 2007
| Ms Sheill |
Appellant
And
| Mr McMurr |
Respondent
REASONS FOR JUDGMENT
By an application in an appeal filed on 5 June 2014, Ms Sheill (“the mother”) seeks an extension of time within which to lodge a Notice of Appeal and expedition of the appeal hearing.
The appeal concerns an order made on 14 April 2014 by Foster J which enabled the respondent, Mr McMurr (“the father”) to accept and enrol the parties’ son in an autism intervention program at X Public School. Central to the mother’s challenge to the primary judge’s order are her contentions that she was denied procedural fairness and that the order is itself irregular and contrary to the weight of evidence and the child’s best interests.
The father says the mother’s application should be dismissed with costs. It is his contention that the transcript of proceedings before the primary judge demonstrates that the mother had been served with his application and was aware the matter was listed for hearing. He contends she has failed to adequately explain her failure to appear and refutes the mother’s contention that she was denied procedural fairness. In circumstances where the mother failed to file any material in opposition to the father’s application for the order ultimately made, he contends that it will be difficult for the mother to make good her challenge to the nature of the order and its terms. An argument was advanced that the proposed appeal lacked utility, but as that issue was explored, it was abandoned.
An Independent Children’s Lawyer (“ICL”) was appointed. By letter dated 18 June 2014, the ICL informed the Appeal Registrar she would not participate in this application or, if it proceeded, the appeal.
At the conclusion of the hearing, the mother was given an extension of time within which to file a Notice of Appeal, the appeal was expedited and directions made in relation to it. These are the reasons for the orders.
Background facts
The child D (“the child”), who would appear to be the parties’ only child, was born in 2005. He was young when the parties separated.
Although the precise details are not in evidence, it would appear to be common ground that since separation the child has lived with his mother and regularly spent time with his father. However, there have been disagreements concerning the child’s circumstances which resulted in an application by the father for parenting orders, including orders regarding parental responsibility including as to education and medical matters.
The father’s initiating application was filed in the Federal Magistrates Court (now Federal Circuit Court) on 16 June 2011 and later transferred to this court.
It the father’s unchallenged evidence that the proceedings have been protracted and involved “many” applications for interim orders. Although it is not entirely clear, the sense gained from the father’s affidavit (including annexures) is that the preponderance of at least recent applications for interim orders has concerned issues in relation to the child’s education and medical matters.
Although it would appear to be common ground that the child is developmentally delayed which, for example, is evidenced by language, communication and behavioural difficulties, the parties have strongly divergent views about whether the child has an autism spectrum disorder (the father’s position) or not (the mother’s position). Thus, although the parties entered into parenting orders by consent on 6 August 2013 which relevantly deal with the amount of time the child spends with each parent, other issues such as parental responsibility, the child’s education and management of his medical issues remain outstanding and are listed for final hearing later this year.
The child started school in February 2011 in kindergarten in Sydney’s northern suburbs. As Johnston J found in his reasons for judgment published on
4 September 2013, the child experienced difficulties at school and, inter alia, in circumstances where the mother did not support the individual educational plan designed for the child by the school in September 2011, the school discontinued the child’s enrolment.
In February 2012, the child commenced school N Public School where he remains.
In the meantime, Dr T, who is a paediatrician at a Children’s Hospital, was appointed as court expert to conduct a full paediatric assessment. Following the release of Dr T’s report, there was a defended interim hearing which resulted in orders made by Johnston J on 4 September 2013 (as amended pursuant to the slip rule on 25 October 2013) as follows:
IT IS ORDERED THAT PENDING FURTHER ORDER:
1.The parents shall have equal shared parental responsibility for [the child] born … 2005.
2.[The child] continue his schooling at [N] Public School or such other school as the parties agree in writing from time to time.
3.The parties be restrained from withdrawing [the child] from a school or changing his school without the written consent of the other party.
4. The parties do all things and sign all documents necessary to:
a.follow the recommendations by [the child’s] school in relation to the implementation of any Individual Education Plan for [the child] proposed by [the child’s] school, if any; and
b.The parties do all things and sign all documents necessary to enable [the child’s] school to access funding available to assist the school in [the child’s] education, including but not limited to, the provision of a special needs teacher, if same was to be recommended and sought by the school.
5.The parties shall do all things and sign all documents necessary to enable both the Father and the Mother to communicate with [the child’s] school and obtain all information and copies of documents from the school as he/she may request in relation to [the child]. Such information and copies of documents shall include but not be limited to all school reports, school photographs, school counsellor’s notes, memos, school newsletters.
6.Each party keep the other party informed of any medical issues involving [the child], particularly of any medical attention or treatment. The parties will do all things necessary to retain Dr [H] as [the child’s] sole treating GP. In the event Dr [H] is not available to see [the child], the parties will do all things necessary to have [the child] attended to by another doctor at Dr [H’s] surgery. In relation to specialist treatment for [the child], the parties shall not engage a further specialist for [the child] without either the prior written consent of either party or upon the written recommendations of Dr [H]. The Independent Children’s Lawyer be at liberty to provide Dr [H] with a copy of the Report by Dr [T].
7.Each party provide to the other party copies of all medical reports already received and in relation to future reports as soon as they have been received.
Further interim orders were made on 24 December 2013 after another defended hearing, which orders are set out below:
1.That an order is made in accordance with paragraph 1.1 of the Application in a Case filed on 10 December 2013 as set out hereunder and that the mother forthwith attend to her obligations under this order:
1.1The respondent mother complete, sign and return to the [N] Public School within seven (7) days, the Referral to School Counsellor form provided to her by the said school in relation to [the child]. In default thereof, the applicant father be appointed as Trustee of the respondent mother pursuant to the Family Law Act 1975 to execute this document in the name of the respondent mother.
…
Yet further interim orders were made after another defended hearing on 31 January 2014, which relevant to this appeal are set out below:
…
2.That paragraph 4 of the orders of 4 September 2013 (as amended on 25 October 2013) is varied by:
(i)deleting from the first line the words “and sign all documents necessary”; and
(ii)deleting paragraph (b) and replacing it with the following:
“(b)that the father is authorised to the exclusion of the mother to do all things and sign all documents necessary to enable [the child’s] school to access funding available to assist the school in [the child’s] education, including but not limited to, the provision of a special need teacher, if same was to be recommended and sought by the school.”.
…
On 17 March 2014, the father applied to the Department of Education for additional student support services for the child with that application facilitated by the Principal at N Public School.
By letter dated 4 April 2014 from the Director, Educational Services, Public Schools NSW, the child was offered a place in the Autism Intervention Program at X Public School. The offer had to be accepted no later than 14 April 2014.
On 10 April 2014, the father filed the application in a case for the order which is the subject of this application in an appeal.
The father’s application came before Foster J on 11 April 2014. Both parties appeared with counsel. The ICL also appeared. Foster J adjourned the father’s application and made the following orders:
1.The Applicant Father’s application in a case filed on 10 April 2014 is adjourned to Monday 14 April 2014 at 9:30am for hearing.
2.The Respondent Mother filed and serve a response to the application in a case together with any affidavit material sought to be relied upon by her by 9:30am on Monday 14 April 2014.
3.The Applicant Father file and serve any further affidavit material to be relied upon by 9:30am on Monday 14 April 2014.
It is the mother’s evidence that she:
…
10.… believed that either my former solicitor or [counsel] would appear on my behalf on 14 April 2014 as I would be on holidays with my son and would not be able to appear on this occasion.
11.On or around 4 May 2014 I had been made aware that [counsel] although present at Court on 14 April 2014, he did not represent me and instead he sought leave to withdraw from the proceedings.
12.At no time did I withdraw my instructions from my former solicitor.
13.I did not have sufficient opportunity to respond to the Father’s Application in a Case nor was I appropriately represented or heard when the Orders was (sic) made on 14 April 2014.
…
(Mother’s affidavit, filed 20 May 2014)
According to the mother, she learned the outcome of the hearing conducted on 14 April 2014 on Sunday, 4 May 2014.
She then retained her current solicitors on 9 May 2014.
Time within which the mother could appeal the 14 April 2014 orders as of right expired on 12 May 2014.
On 13 May 2014, the mother filed an application in a case in which she sought to set aside the 14 April 2014 order. It would appear to be common ground that Foster J declined to entertain the mother’s application in a case and expressed the view that any change to his orders would need to be secured on appeal.
It is the mother’s solicitor’s evidence that due to the magnitude of the proceedings, the solicitor needed some time in order to prepare the Notice of Appeal.
This application, including a draft Notice of Appeal and the solicitor’s affidavit in support were filed on 5 June 2014.
The father filed his response to the mother’s application and his affidavit in support on 30 June 2014.
Discussion
Before the mother can succeed in her application for an extension of time, there must be material upon which the court can be satisfied that to refuse the application would constitute an injustice. Factors which need to be considered include:
· whether there are adequate reasons which explain the delay;
· whether there is a substantial issue to be raised on appeal;
· the history of the proceedings;
· the conduct of the parties to the proceedings;
· the nature of the litigation; and
· the consequence for the parties and, in this case the child, of the grant or refusal of the application.
The overarching principle remains, however, to ensure that the rules concerning time do not operate so as to become instruments of injustice (Gallo v Dawson (1990) 93 ALR 479).
As the background facts demonstrate, upon learning about the outcome of the hearing on 14 April 2014, the mother moved quickly to secure alternate representation as, in relation to the application to set aside the orders, did her newly instructed solicitors. Although they considered the fact that the orders were made in the mother’s absence would enable the primary judge to vary or set those orders aside, his Honour took a different view. Although unsuccessful, the application to vary demonstrates prompt action by the mother to challenge the orders. Again, when that application failed to find favour, her solicitors moved quickly, with the evidence establishing an acceptable explanation for the mother’s failure to file a Notice of Appeal within time and this application a few weeks later. The evidence in relation to delay is persuasive of the relief sought.
The mother’s draft notice of appeal sets out the grounds of appeal she would pursue. As was mentioned earlier, she asserts a denial of procedural fairness, that the order is irregular and contrary to the weight of evidence and the child’s best interests. It is difficult on the documents filed in the appeal in this application to come to a comfortable view about the strength of the mother’s appeal. However, she clearly raises matters of substance in relation to an order of real significance concerning the child. Notwithstanding the careful and well formulated submissions made by counsel for the father to the effect that the mother’s proposed appeal lacks merit and should be seen as a delaying tactic viz the child receiving assistance at X Public School, I am persuaded that the mother raises issues on the appeal which, if successful, could enable this court to set aside the orders made by the primary judge.
It is accepted that unless the mother is given an extension of time, the order under challenge will not be reconsidered until the final hearing. On the other hand, the father is weary of litigation concerning the child’s education and his desire that the child receive educational assistance of the type now offered by the Department of Education. He is also concerned about the costs associated with an appeal which he believes is doomed to fail. Although these are significant matters which weigh against expedition, the mother’s inability to challenge the order other than by way of an appeal warrants greater weight.
On balance, an extension of time is appropriate. So too is an order that the appeal be heard expeditiously. Presently the child is in the invidious position that whilst with his father, he is able to attend the intervention program but not while in his mother’s care. The child’s best interests require that this situation is addressed quickly. Thus, expedition will be ordered but subject to conditions which will facilitate the implementation of the 14 April 2014 orders for so long as those orders are in force.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 7 July 2014.
Associate:
Date: 7 July 2014
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