Sikora & Woodrow
[2021] FamCAFC 153
•18 August 2021
FAMILY COURT OF AUSTRALIA
Sikora & Woodrow [2021] FamCAFC 153
Appeal from: Woodrow & Sikora [2021] FCCA 1540 Appeal number(s): EAA 72 of 2021 File number(s): PAC 6094 of 2018 Judgment of: AINSLIE-WALLACE J Date of judgment: 18 August 2021 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal for an extension of time– Where the primary judge delivered ex tempore reasons – Where there was a delay in providing the settled reasons to the parties – Where the applicant was one day late in filing the Notice of Appeal – Where there is sufficient explanation for the delay - Where the appeal is arguable – application allowed. Legislation: Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) rr 12.10A, 22.03
Cases cited: Gallo v Dawson (1990) 93 ALR 479 Division: Appeal Division Number of paragraphs: 25 Date of hearing: 17 August 2021 Place: Sydney The Applicant: In person The Respondent: In person Solicitor for the Independent Children’s Lawyer Alex Naidovski ORDERS
EAA 72 of 2021
PAC 6094 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS SIKORA
Applicant
AND: MR WOODROW
Respondent
AND: THE INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
17 AUGUST 2021
THE COURT ORDERS THAT:
1.The time in which an appeal against orders made on 12 May 2021 is extended until 4:00 pm 27 August 2021.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sikora & Woodrow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J
Ms Sikora (“the mother”) and Mr Woodrow (“the father”) are the parents of X who was born in 2009 and Y was born in 2015 (“the children”). Parenting proceedings commenced in December 2018 in the Federal Circuit Court and the final determination of those proceedings is part-heard before the primary judge.
In the hearing so far, only the mother’s oral evidence had been taken, none of her witnesses, the experts nor the father and his witnesses have been heard.
On 12 May 2021, before the hearing was adjourned, the father sought interim orders be made that he spend supervised time with the children, pending the recommencement of the hearing. The primary judge made interim orders that the father spend supervised time with the children for two hours each alternate Saturday from 9am to 11am or such other two hour period as nominated by the supervisor, B Contact Service.
The primary judge gave ex tempore reasons for making the interim orders on 12 May 2021. Those reasons were not provided to the parties in settled form until 7 July 2021.
The mother wishes to appeal those orders. Her Notice of Appeal was not filed within time and she seeks an extension of time in which to bring the appeal.
On 10 August 2021 the father filed a response to the mother’s application seeking orders that the mother’s appeal be dismissed and the orders made by the primary judge be “enforced”.
Background
It is helpful to set out some background to give context to the application.
It seems from the primary judge’s reasons that there is no issue that the children should live with the mother, the dispute appears to be whether they spend time with the father and, if so, how that time would be structured. The father seeks orders that the children spend time with him, at first for a few hours supervised, then which would incrementally increase to unsupervised and extended period of time. The mother seeks an order that the father spend no time nor communicate with the children and sought that the he be enjoined from approaching the children or their schools or her residence. The primary judge noted that in the course of her cross examination, the mother modified her stance to conceding the possibility that the father could send the children cards and gifts [7].
The primary judge observed that in the past, orders had been made for the father to spend supervised time with the children. From the chronology of events set out in his reasons it is tolerably clear that the supervised time was altogether successful and as a result one supervision centre now refuses to carry out the supervision of the time between the father and the children.
The father has, it seems a history of breaches of Apprehended Violence Orders, and he has been charged and convicted in relation to some of them. His Honour noted at [39] that two of those breaches concerned the father having text communication with the mother and in providing gifts to the children.
The mother and the Independent Children's Lawyer opposed the interim orders being made. Each asserted that for the father to have supervised time would expose the children to an unacceptable risk of harm.
His Honour set out the expressed risk:
27. For the purposes of the interlocutory interim hearing, it is submitted on the mother’s behalf that even supervised time would expose the children to an unacceptable risk of harm, essentially because it is submitted the father has a history of non‑compliance with rules and requirements of supervision centres, and does not adhere to the service agreements of the centre, and is a person whose parenting capacity is otherwise compromised by his propensity, it is submitted, to perpetrate family violence or, and in addition, his use of illicit substances, or, and in addition, the adverse notice that he comes under in the criminal justice system.
28. The independent children’s lawyer primarily submits that to start supervised time with the possibility that as a result of the completion of the final hearing, no time would be ordered, would be potentially psychologically damaging to the children because of the stop, start arrangement, and the proximity of the dates for the conclusion of the final hearing.
His Honour reflected on the asserted risk and concluded at [33] that there had been no change since orders for supervised time were made in May 2019 and said that taking into account the mother’s expressed concerns, the children’s potential exposure to the father’s behaviour was the same as in May 2019.
His Honour’s reasons also reflect that he was well aware that all of the evidence had not been tested nor had the experts been heard.
The primary judge considered the asserted risk and whether for the children to have supervised time with the father would expose them to an unacceptable risk of harm of the type asserted. He concluded that if the children’s time with the father was supervised, the risk to them of being impacted by his parenting ability was ameliorated and would enable the supervisor to determine whether he was affected by drugs. He also concluded that if the supervisors were provided with the expert reports in the matter it would act as a further protection for the children.
The primary judge concluded that supervised time with the children in shorter periods than that sought by the father was in the children’s best interests in that it would enable them to maintain their relationship with him and did not expose them to an unacceptable risk of harm.
The proposed appeal
The mother appears for herself and drew the grounds of appeal. The grounds assert that the primary judge’s orders failed to “properly exercise jurisdiction to ensure the children’s safety” (Ground1); in making the orders in the absence of testing the expert opinions and, that the orders fail to address and properly consider the risk posed by the father (Ground 2). Ground 3 contends that his Honour’s failure to provide reasons was a failure to afford the mother procedural fairness and Ground 4 complains that the order giving the Independent Children's Lawyer leave to provide the expert reports to the supervisors “should have been mandated”.
Extension of time
Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. That time expired on
11 June 2020, the date on which the mother attempted to file the Notice of Appeal.
The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 and in the judgment of McHugh J at 480, his Honour said:
… The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
(Citations omitted)
In considering whether strict application of the rules would work an injustice on the applicant, it is necessary to consider the merits of the appeal because if the appeal is devoid of merit, it would be futile to make the order sought.
Having considered the judgment and the proposed grounds of appeal and noting the father’s opposition to the application, I am of the view that the appeal is arguable such that to extend time would not be futile.
Turning then to the reasons for the delay. It is clear that the mother’s attempts to negotiate the electronic filing of her appeal caused her to file outside the time limit for filing.
The mother sought to file her appeal on the last day within time. In her affidavit she said that she had been waiting for receipt of the settled reasons and to receive “an important report” which delayed the filing of the appeal. While the mother’s grounds and her affidavit in support of an extension of time speak of the primary judge’s failure to provide reasons, of course it is understood that the primary judge gave oral reasons at the time of making the interim orders. However, there was a delay in the settled reasons being provided to the parties.
So far as the settled reasons are concerned, it important that reasons given ex tempore be promptly settled and made available to the parties so that they can give consideration to whether there are proper grounds to appeal. The delay here of some months was unfortunate but it would be unrealistic at the same time not to appreciate the workload and the disposition of cases in the Federal Circuit Court. However, as I say, the delay in having settled reasons played into the mother’s leaving the filing of the appeal until the last day. Alas, then her failed attempts to file caused her to be out of time.
I am satisfied that the mother has satisfactorily explained the delay in filing the appeal and I will grant an extension of time in which to file the appeal.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 17 August 2021
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