Simpson & McClease - [2018] FamCAFC 226

FAMILY COURT OF AUSTRALIA

SIMPSON & MCCLEASE AND ANOR

[2018] FamCAFC 226

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the second respondent seeks an order to file a Notice of Contention out of time – Where the applicant obtained the written consent of the Minister for the NSW Department of Family and Community Services to commence further Federal Circuit Court or Family Court of Australia proceedings relating to issues pursuant to s 69ZK(1)(b) of the Family Law Act – Where such consent pursuant to s 69ZK(1)(b) may not be valid – Where the primary judge did not have jurisdiction – Application allowed.

Family Law Act 1975 (Cth) High Court Rules 2004 rr 42.08.1, 42.08.5
Family Law Rules 2004 (Cth) r 38(2)

Gallo v Dawson (1990) 93 ALR 479
McCullough & McCullough (2006) FamCA 840
Mead and Ors & Mead (2009) FamCAFC 123

APPLICANT:

Mr Simpson

FIRST RESPONDENT:

Ms McClease

SECOND RESPONDENT:

Mr Barnicoat

FILE NUMBER:

CAC

1742

2017

APPEAL NUMBER:

2018

DATE DELIVERED:

20 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

20 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 April 2018

LOWER COURT MNC:

[2018] FCCA 1658

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Maitland Legal Aid NSW

THE FIRST RESPONDENT:

Ms Morton by telephone

SOLICITOR FOR THE SECOND RESPONDENT:

Mr Smith by telephone

Orders

The applicant, Mr Simpson be granted an extension of time in which to file a cross-appeal against the orders of Judge Neville made on 19 April 2018, such cross-appeal to be filed and served on all parties and on the Director of Child Protection, Department of Family and Community Services no later than 4pm Friday 23 November 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simpson & McClease and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 66 of 2018
File Number: CAC 1742 of 2017

Mr Simpson

Applicant

and

Ms McClease

First Respondent

and

Mr Barnicoat

Second Respondent

REASONS FOR JUDGMENT

By his application in an appeal filed on 25 July 2018 Mr Simpson (“the applicant”) seeks an order for an extension of time in which to file a Notice of Contention in appeal EA 66 of 2018 filed by Ms McClease (“the mother”) from the parenting orders made by Judge Neville on 19 April 2018. The orders relate to the mother’s three children Y aged 10 years, X aged 8 years and Z aged 7 years (“the children”). The children Y & X are the children of the mother and Mr Barnicoat (the second respondent) and Z is the child of the mother and the applicant, Mr Simpson.
The mother opposed the extension of time and the second respondent neither consented to nor opposed the application.

Background

Given the issues raised in this application, it is useful to set out a brief background to give context and to lend understanding to the issues necessary to be determined on the application.
The children are subject to child welfare orders made in the Child Protection jurisdiction. The first order was made in April 2013 in the District Court of NSW and although the mother on a number of occasions sought to appeal or vary those orders, they remain on foot. The result of those orders is that the Director General of NSW Family and Community Services (“FACS”) placed the children in the care of their respective fathers each of whom has sole parental responsibility for the child or children. The orders allowed for the mother to have supervised time with the children.
In September 2017 the mother brought proceedings in the Federal Circuit Court seeking orders that the children spend time with her. The two respondent fathers sought that the application be dismissed.
The Department of Family and Community Services was not a party to the proceedings in the Federal Circuit Court.
Because there were orders then in force made under a child welfare law, orders other than those expressed to commence at the conclusion of the child welfare orders, cannot be made without the written consent of the relevant child welfare officer. The consent was sought and on 15 May 2017 the Director of Child Protection, Department of Family and Community Services (FACS), wrote to the mother advising that the Minister had consented to Federal Circuit Court or Family Court of Australia proceedings “relating to issues of contact or time spent” pursuant to s 69ZK(1)(b) of the Act.
On 13 April 2018 the trial judge heard the mother’s application which was dismissed on 19 April 2018. It is this order that is the subject of the mother’s appeal.
The applicant contends that the Federal Circuit Court did not have jurisdiction to entertain the application and wishes to file a Notice of Contention.
A notice of contention may be filed by a respondent in circumstances where the respondent does not seek to cross-appeal and does not disagree with the decision of the trial Judge – but may disagree with the reasons given by the trial Judge. It may be relevant in instances where the Full Court is considering exercising its discretion (see Mead and Ors & Mead (2009) FamCAFC 123, McCullough & McCullough (2006) FamCA 840).
However, during submissions on the application, it became apparent that the applicant does not contend that the decision was correct by challenges the reasons, rather, the applicant contends that the decision is fatally flawed because the primary judge did not have jurisdiction to hear the matter. The point being that the consent by the relevant child welfare officer, was expressed to be circumscribed to only a single issue and the applicant argued that to give only a partial or circumscribed consent is unlawful. The solicitor for the applicant conceded that the Notice of Contention was perhaps not the right vehicle for her argument but submitted that her client wished to raise the point well in advance of the preparation of arguments in the appeal so all parties could address that issue. She had no objection to being ordered to file a cross-appeal instead of a Notice of Contention if an extension of time was given.
Rule 22.08 of the Family Law Rules 2004 specifies that a Notice of

Cross-Appeal must be filed either 14 days after service of the Notice of Appeal or 28 days after the date of the order appealed from. As the notice of appeal was served on the applicant on 28 May 2018 the notice of contention should have been filed on or before 4 June 2018.
The granting of an extension of time is discretionary.
The relevant principles to be applied by a trial judge in deciding whether it is appropriate to extend time for lodging an appeal, or in this case a notice of contention, are set out in

Gallo v Dawson
(1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining 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 parties of the grant or refusal of the leave.
The exercise of discretion also involves an assessment of the prospects of a successful appeal.
The solicitor for the applicant says that notwithstanding that the notice of appeal was served on the applicant on 28 May 2018 she did not receive a copy of the trial judge’s reasons until 24 July 2018. She then had an opportunity to obtain further advice in respect of the validity of the consent provided by the Minister, NSW Department of Family and Community Services and formed the view that the trial judge did not have jurisdiction to consider the matter. It was only then that she received instructions from the applicant to file a notice of contention. On 25 July 2018 the applicant filed his application in an appeal for an extension of time in which to file a notice of contention.
I am satisfied that there is a reasonable explanation for the delay in making the application.
The mother argued that the bringing of the application was merely technical and was productive of delay and distress to her. She said that it was “using up” her energy in having to deal with it.
It should not be assumed that merely because there is an explanation for delay that an extension of time will be given. True it is that the introduction of a further application will cause a litigant distress, and the mother here is representing herself.
However, the point sought to be raised by the applicant is no mere technicality. If the primary judge did not have the jurisdiction necessary to make his order, then it goes to the heart of the integrity of the trial process. It is important and, in my view, a necessary argument to be raised.
Procedural orders have already been made in order to have the appeal ready for hearing. The solicitor for the applicant said that if leave is given it will not alter or delay any of the already made orders and her submissions can be filed in accordance with the orders.
In my view there should be an extension of time given to the applicant in which to file a cross-appeal against the primary judge’s orders.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 20 November 2018.

Associate:

Date: 20 November 2018