Shipley & Chaffer
[2022] FedCFamC1A 211
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Shipley & Chaffer [2022] FedCFamC1A 211
Appeal from: Chaffer & Shipley [2022] FedCFamC2F 1276 Appeal number(s): NAA 182 of 2022 File number(s): TVC 1421 of 2019 Judgment of: TREE J Date of judgment: 14 December 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – TRANSCRIPT – Where the appeal is taken to be abandoned by operation of r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the applicant seeks dispensation of the transcript – Where an oral application was made at the hearing for reinstatement of the appeal – Where the proposed appeal enjoys no realistic prospects of success – Where reinstatement of the appeal is not necessary to enable the court to do justice between the parties – Where it is unnecessary to further consider the application to dispense with transcript – Applications dismissed. Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.22, 13.44
Cases cited: Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox & Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 45 Date of hearing: 9 December 2022 Place: Cairns (via telephone link) The Applicant: Self-represented litigant The Respondent: Self-represented litigant Solicitor for the Independent Children's Lawyer: Swanwick Murray Roche Lawyers ORDERS
NAA 182 of 2022
TVC 1421 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SHIPLEY
Applicant
AND: MR CHAFFER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
TREE J
DATE OF ORDER:
14 december 2022
THE COURT ORDERS THAT:
1.The applicant’s oral application for reinstatement of Appeal NAA 182 of 2022 is dismissed.
2.The Application in an Appeal filed 2 December 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shipley & Chaffer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction
On 23 August 2022, Ms Shipley (“the mother”) appealed from final parenting orders made on 26 July 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 2) relating to the parties’ daughter, X (“the child”).
On 25 October 2022, an appeal judicial registrar made the usual procedural orders to ready the appeal for hearing. One of those orders required the mother to obtain and file transcript of the hearing before the primary judge by no later than 4.00 pm on 2 December 2022 (Orders 10 and 11), and detailed that if the mother did not do so, by operation of r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the appeal would be deemed abandoned (Order 12).
On 2 December 2022, rather than filing the required transcript, the mother instead filed an Application in an Appeal seeking that the requirement to obtain the transcript be dispensed with, and hence that the appeal proceed without it. That application was listed before me on 9 December 2022.
At that hearing, I raised with the mother that the appeal had been taken to be abandoned by operation of r 13.22 and that an application for reinstatement of the appeal was required to be made. Mr Chaffer (“the father”) and the Independent Children’s Lawyer did not oppose the mother being allowed to make an oral application for reinstatement of the appeal, but opposed it being reinstated. I therefore entertained the mother’s oral application.
For the reasons which follow, reinstatement will be refused, which therefore makes it unnecessary to determine the application to dispense with transcript.
background
The mother is presently 37 years of age and the father 47. Their relationship commenced in 2016, although it was intermittent in nature until they later commenced cohabitation, the precise date of the commencement of which is contentious, but irrelevant. They finally separated in April 2019 when the child was a little over one year old. It seemed not to be in dispute before the primary judge that the mother has used illicit drugs in the past, including post separation.
Under the 26 July 2022 parenting orders made by the primary judge, the child was to live with the father and initially spend limited supervised time with the mother. If, over time, the mother presented clean drug tests, then her time with the child would progressively increase, potentially culminating in an equal time arrangement, seemingly at the earliest by the end of 2023. However the orders contained provisions such that, if the mother returned positive screens during the period of increasing time, her time with the child would revert back to the original supervised time, and the progression commence all over again.
Likewise, although initially the father would have sole parental responsibility for the child, if under the orders the mother progressed to having care of the child for five nights in each alternate week, parental responsibility would also be shared (except for the choice of school).
APPLICATION FOR REINSTATEMENT
Rule 13.44 of the Rules provides that “[a] party may apply to have an appeal taken to be abandoned under this Chapter reinstated”. That rule does not specify any criteria to be taken into account in the exercise of discretion by the court, as noted by the Full Court in Bemert & Swallow (2010) FLC 93-441 (“Bemert & Swallow”) in relation to its predecessor rule:
154.…[i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account. However, it is important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in Aon Risk Services.
Notwithstanding that statement, Bemert & Swallow nonetheless identified that the principles derived from the authorities applicable to determining an application for an extension of time in which to file an appeal, will likely inform an application for reinstatement of an appeal.
From those principles, the central issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, which is likely informed by at least the following factors:
(a)The extent of the delay and whether there is an adequate explanation for it;
(b)The nature and history of the litigation;
(c)The prospects of the applicant succeeding in the appeal;
(d)Any prejudice or consequence to the parties depending upon the result of the application.
Addressing those matters in that order, here the delay has been slight and I am prepared to infer that obtaining the transcript was the mother’s focus, and she was probably unaware of r 13.22, notwithstanding Order 12 of the procedural orders made 25 October 2022.
There is no suggestion that the parenting litigation has been unduly protracted.
The prospects of success of the appeal is a major issue. The grounds are as follows:
1. The judge gave inadequate reasons for the decision
2. The judge failed to properly consider the evidence
3. The Judge Made a decision that was plainly wrong
(As per the original)
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
As to Ground 1, the obligation to give adequate reasons is uncontroversial. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
By the end of the trial, there were really only two substantial issues which required resolution by the primary judge. The first was whether the father should have sole parental responsibility for the child, or whether it should be shared. The primary judge adopted a combination of both. Her reasons for doing so are at [37]–[39] as follows:
37.So it seems to me that the orders that the father and ICL seek, which is simply a blanket order that the father having sole parental responsibility for [the child] between now and when she is 18 – and I note that the ICL’s submission includes a view that the father would intend to keep the mother informed and intend to try and negotiate or communicate with the mother about things – but I think a Court Order needs to be based on more than simply a hope that that is going to happen. So, when I look at their blanket orders for sole parental responsibility and the mother’s blanket order for equal shared parental responsibility, it seems to me neither of those are really fit for purpose and we need to have a bit of a hybrid model happening for [the child].
38.So what I have determined is this: is, whilst the mother is going through the initial phases of the time building up, the father is to have sole parental responsibility. Using the ICL’s proposed position, which was exhibit 4, which was updated from day 1, so this was the morning of day 2, I propose that equal shared parental responsibility for the parents would come into effect at the ICL’s order 4(g). So, at 4(g), the parents would have equal shared parental responsibility. There will be one exception to that, and I will give the father sole parental responsibility on a single issue, being the choice of school for [the child]. The reason that I do that is because the mother has long been somebody who is not qualified to drive because of criminal behaviour. If she gets a licence again it will not be until 2025. If history informs future behaviour, there is a chance that the mother will not be somebody who consistently is the holder of a valid driver’s licence, and if there is to be an imposition on the father in terms of where the child goes to school so that it somehow favours the mother, that should be the father’s choice to make.
39.So, save for the discrete issue of the choice of the child’s school, from order 4(g), the parents will have equal shared parental responsibility. By then, the child will be starting to do Fridays through to Wednesdays with the mother and there is only two other steps before the child would be spending week about. I would expect the parents to be sharing parental responsibility in such circumstances, even if it is difficult for them to do so.
Her Honour’s reasoning for the orders she made relating to the first issue of parental responsibility are therefore able to be readily ascertained.
The second issue was how quickly the increase in the time which the child spent with the mother should progress. As to that, at [43] the primary judge said:
43.The decision which I have had to make today has had to look at the mother’s use of illicit drugs and the mother’s desire to be free of the use of illicit drugs and the knowledge that she needs to be demonstrating that in a sustained way, and how that will then support [the child] being kept safe from harm, the harm being as a result of the mother’s use of illicit drugs, and balancing that with [the child] having a meaningful relationship with her mother whilst it being limited because of the mother’s use of illicit drugs. It seems to me that the need to make sure that the mother reaches every step and shows a maintenance of that step before moving to the next step and showing again a continued maintenance of being free from the use of drugs is one which needs to be done in a slow and cautious way for the sake of [the child] having a settled relationship which can be meaningful with her mother.
Thus again the primary judge’s reasoning is able to be clearly discerned, namely, that the risk which the mother’s drug use posed to the child required her primary care to remain with the father, for her time with the mother to thereafter be initially supervised, but potentially increase and be unsupervised if the mother remained clean of drugs.
Now it is true that the primary judge did not slavishly traverse the factors enumerated in s 60CC of the Family Law Act 1975 (Cth) seriatim, however as I have indicated, there were really only two major issues raised, and in large part they resolved around the risk which the mother’s drug use posed to the child, with the primary judge accepting that if that risk could be minimised, then the child would benefit from having a meaningful relationship with both parents, who should share her care.
There is no merit in Ground 1.
As to Ground 2, as cast, this is not a proper ground of appeal, however in the course of the hearing it became clear that what the mother really intended to encompass within the ground was a complaint that the primary judge erred in finding that the mother was a risk of harm to the child by virtue of her drug use.
An appeal court should not interfere with a finding of fact if there was evidence on which that finding could be made; that is if it was reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296; Gronow v Gronow (1979) 144 CLR 513). It also must be recognised that appellate judges are in a “permanent position of disadvantage as against the trial judge” in assessing the evidence and the credibility of witnesses (Fox & Percy (2003) 214 CLR 118 at [77]).
The mother herself conceded amphetamine use around 17 July 2021 (mother’s affidavit filed 30 May 2022, paragraph 50). Since then, she has periodically been required by the Independent Children's Lawyer to submit to drug testing. Helpfully at trial, the Independent Children's Lawyer tendered into evidence a chronologically ordered table containing the relevant information pertaining to each such request (Exhibit 3). It shows that many requests made of the mother to undergo testing were not complied with, or the test was undertaken later than requested. Although of the tests undertaken within the time requested, most were negative, some were not. So on 8 November 2021 the test was positive to methamphetamine and amphetamines, which was later confirmed on a re-test. Then on 17 January 2022 the mother again tested positive to methamphetamine. As to that, the mother’s affidavit filed on 30 May 2022 at paragraph 55 said:
55.On 18 January 2022, I attended at Pathology for a urine drug analysis test which tested positive for methamphetamine. I am unable to explain this test result as I have remained abstinent from illicit substances since July 2021, other than shortly prior to taking the test on 18 January 2022 I have accidentally taken my son … Ritalin when I thought it was Valium. I believe that this may have given a false positive and amphetamine was not detected on the test. If I was using methylamphetamine (which I am not), I understand that the test would show both methamphetamine and amphetamine as being detected.
(As per the original)
It is unclear, absent transcript, whether the mother was cross-examined about this, but at all events, it seems clear no expert evidence was called about it.
The mother’s Case Outline filed 31 May 2022 said at page 4:
7.The drug issues have been addressed and the mother has shown for the past several months negative results.
However during an interregnum of the hearing of the trial, the mother tested positive for cannabinoids on 23 June 2022.
At [20]–[24] the primary judge said this:
20.It seems to me that it is trite to say that amphetamines and methamphetamines are a particularly dangerous drug and one which is contraindicated in good parenting. Drug screens, particularly hair follicle testing, do not have the capacity to show us where and when somebody actually consumed the drug which has shown up in the screen. Urinalysis has a better capacity to show that when we understand that different drugs have different half-lives. Cannabis has a long half-life, so it is difficult to know at what point in time the mother used cannabis when it showed up in her drug screen on 23 June. Because amphetamines and methamphetamines have a short half-life, they are less likely to be detected through a random urine unless the random urine is conducted very shortly after the drug has been consumed.
21.The Independent Children’s Lawyer points out that she is concerned that the use of cannabis may be considered to be a gateway to the use of further illicit drugs, such as amphetamines or methamphetamines. That may be the case. It is difficult to determine and it is in part difficult to determine because the mother has not taken any real steps with speaking with any therapeutic agency about her drug use. The mother went to AODS at the end of last year. She went of her own volition, not because the Independent Children’s Lawyer required her to, and of course AODS was then left to assess the mother from what the mother herself was telling them was her reason for presentation. The mother plainly told them how she perceived things and what she was told then by the person that she saw, was that there was no need for her to be seen by them again unless, as the mother told us in cross-examination, she was failing drug tests.
22.Well, then in January 2022 the mother failed a drug test and the mother did not go back to AODS. The mother seems to have never heard of the notion of a relapse prevention plan and the mother does not have a relapse prevention plan, and the mother does not present as somebody who perceives that this is an issue for which she should take some professional assistance. So I have very little evidence before me as to how the mother may progress with illicit drug use; whether, in fact, I should consider cannabis to be a gateway drug into the more harmful drugs of amphetamines and methamphetamines. I should pause to say that parenting whilst under the influence of cannabis is also contraindicated in good parenting and I should also point out that cannabis itself is a drug which, for some users, is a terribly dangerous drug and can lead to psychosis. So cannabis is not a harmless natural product for everybody who uses it and it is, of course, an intoxicant and a depressant of the nervous system, so it is one which, if a parent is under the influence, would mean that they were less capable of responding to their child either physically or emotionally.
23.So the ICL is rightly concerned about these things, and what concerns not only the ICL but me is that there is really no evidence about how the mother intends to take support to ensure that she is always on the right track. So the Independent Children’s Lawyer’s view is that a slow and steady approach is one which is required, and the ICL says that that would be stepped-up periods of three months of non-use of drugs demonstrated through the provision of hair follicle tests done regularly by the mother.
24.The mother also plainly considers that she needs to be demonstrating things because the mother says two months. There is no evidence from an expert on drug rehabilitation before me. The mother has chosen not to take any form of rehabilitation herself or to have any evidence about that before me. The fact that the mother has not been able to sustain a lifestyle of no use of illicit drugs, even after we had been in Court talking about these things, knowing that we were coming back to Court to finish the trial, is very concerning to me. So when I add up the fact that the mother took no heed of the person from AODS saying, “Come back if you fail a drug test,” and she failed a drug test and didn’t go back, she does not know what her relapse prevention plan is and she failed a drug test so recently, all of those things cause me to consider that the ICL’s submission as supported by the father that a slow and steady process is the one which needs to be preferred, and where the ICL says a slow and steady process means a three-month interval, I am minded to agree with the ICL. That does seem to me to be, doing the best I can, what is needed.
Plainly, those conclusions were well open on the evidence, and the risk assessment undertaken by the primary judge is unexceptional.
Ground 2 is without merit.
As to Ground 3, the mother could not explain to me how the primary judge’s responses to the risk which the mother posed to the child, were outside the range of reasonable disagreement, (Norbis v Norbis (1986) 161 CLR 513; CDJ v VAJ (1998) 197 CLR 172), and I cannot see it myself. She did complain that since the trial, the parties have, by agreement, implemented an equal time arrangement, which could be stopped at any time if the father insists on a return to the orders, but that does not speak to any error by the primary judge.
Rather the mother focussed more upon the orders for parental responsibility, which she contended were practically problematic, and said the parties should have had equal shared parental responsibility from the outset.
I have already set out the relevant pith of the primary judge’s reasons for her orders relating to parental responsibility. They are reasonable, and certainly not plainly wrong. Although another judge, or even myself may have ordered differently, that does not establish error.
Ground 3 is also without merit.
It follows that the appeal is unlikely to succeed, as it enjoys no realistic prospects of success.
Clearly the mother is aggrieved by the outcome of the trial, but absent a meritorious ground of appeal being identified, she suffers no prejudice if the appeal is not reinstated. The consequence of refusing her oral application is that, if she complies with the testing regime and produces clear results, she will be able to achieve both equal parental responsibility and equal time with the child. I can discern no injustice in that consequence, especially given it appears she has already, in fact, equal care of the child. It follows that reinstatement of the appeal is not necessary to enable the court to do justice between the parties.
There is one further matter relevant to reinstatement, and that is that it would be futile, as even if reinstated, the next step would be to consider whether transcript should be dispensed with.
As to that, part of the mother’s claims orally advanced before me was that at the commencement of the trial, the primary judge made statements which ultimately were in conflict with the orders and reasons given at the end of the trial because, she said, the primary judge had simply picked up what counsel for the Independent Children's Lawyer had suggested. I pointed out to the mother that would require at least transcript of the opening remarks and addresses, however the Independent Children's Lawyer submitted it would also require a full transcript of the proceedings to see why, if it be true, the primary judge changed her mind. I accept that is so.
The mother was adamant that she could not afford the cost of full transcript (some $4,766) which seems clear from the position disclosed in her financial statement dated 2 December 2022, as it shows she has no assets and her main source of income is a social security payment.
Although the Independent Children's Lawyer indicated that there was some possibility that legal aid may fund her obtaining the transcript, it was nothing more than a possibility.
Thus even if the appeal were reinstated, given that transcript of the trial would be required, but unable to be funded by the mother, the appeal would likely never be ready for hearing. In that sense, reinstatement would be futile.
The application for reinstatement is dismissed.
application to dispense with transcript
Given that the appeal is taken to be abandoned, and will not be reinstated, it is unnecessary to further consider the application to dispense with transcript, and the Application in an Appeal filed 2 December 2022 will also be dismissed.
outcome
The appeal remains taken to be abandoned. The hearing of the appeal listed before me for 7 March 2023 will be administratively vacated.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 14 December 2022
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