Spencer and Spencer - [2014] FamCAFC 144

FAMILY COURT OF AUSTRALIA

SPENCER & SPENCER

[2014] FamCAFC 144

FAMILY LAW– APPEAL – Application to extend time to appeal – Where the proposed appeal lacks merit – Where the explanation for delay was inadequate – Application dismissed – Applicant ordered to contribute to the respondent’s costs in a fixed sum with enforcement delayed.

Family Law Act 1975 (Cth) s 94
Family Law Rules 2004 (Cth) r 7.04(1), r 22.03

Coombs & More (1990) FLC 92-175
Gallo v Dawson (1990) 93 ALR 479
Joshua & Joshua (1997) FLC 92-767

APPELLANT:

Ms Spencer

RESPONDENT:

Mr Spencer

FILE NUMBER:

PTW

7180

2010

APPEAL NUMBER:

2014

DATE DELIVERED:

8 July 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

8 July 2014

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

28 August 2013

LOWER COURT MNC:

[2013] FCWA 86

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

SOLICITOR FOR THE APPELLANT:

N/A

COUNSEL FOR THE RESPONDENT:

Ms Giles

SOLICITOR FOR THE RESPONDENT:

Biddulph & Turley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cohen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid WA

Orders

The application in an appeal filed on 22 April 2014 be dismissed.
The applicant contribute to the respondent’s costs, fixed in the sum of $5,000, with enforcement delayed pending resolution of the property settlement proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer & Spencer 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 PERTH

Appeal Number: 10 of 2014
File Number: 7180 of 2010

Ms Spencer

Appellant

And

Mr Spencer

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The application before the Court is the application in an appeal of Ms Spencer received on 15 April 2014 and formally filed on 22 April 2014. Ms Spencer seeks a dozen different orders, but importantly for present purposes, an extension of time in which to appeal against what is described as the substantive judgment of Moncrieff J, which was delivered not on 28 August 2014 as the application says, but on 28 August 2013.
That judgment concerned the parties’ child, H, who was born in 2008. These were extraordinarily protracted proceedings, with the trial taking some 25 days, leading to an extraordinarily lengthy and detailed judgment, extending well over 300 pages.
The upshot was that the child was removed precipitously, intentionally so, from the care of the mother and placed in the care of the father. It goes without saying that this must have been a very difficult time for the child and it is, of course, accepted that it was an exceptionally traumatic and difficult time for the mother, who believed she was acting protectively for the child.
The reason this application comes before the Court is that having announced, at the time of judgment that she intended to appeal, the mother simply failed to do so, for what ended up being a very long period. The precise calculations are set out in the written submissions of Ms Giles handed up today.
The application needs to be understood in the context of the fact that there are also on foot two other appeals by Ms Spencer in relation to this litigation:
a)WA 4 of 2014, in which the mother, in time, filed a notice of appeal, which has subsequently been amended, against the very substantial costs order made by Moncrieff J on 21 January 2014; and
b)WA 13 of 2014, in which the mother filed in time an appeal against a number of interlocutory orders made by his Honour on 8 April 2014.
Ordinarily, it would be anticipated that those appeals would proceed for determination in the October 2014 sittings of the Full Court in Perth.
Very importantly for the purposes of this application, the litigation has been ongoing since the delivery of the substantive judgment. The history of the proceedings since delivery of that judgment is fairly comprehensively set out in the very recently filed affidavit of Mr Spencer. It is common ground that, quite apart from all of the other hearings that have occurred since the delivery of the substantive judgment, there has recently been a hearing of five or more days, concluding only last week I understand, about issues concerning the mother’s ongoing contact with the child.
The father’s affidavit sets out – and I do not understand this to be significantly in issue, if at all – what was said or perhaps more importantly, what was not said, at various stages about the mother appealing the substantive decision. And, in fact, at one point, in light of a submission that the mother made in relation to costs issues, the father understood that she was accepting of the fact that she had been mistaken in pursuing the allegations of abuse that she so strongly pursued at the trial before Moncrieff J.
The statutory framework in which applications such as the present fall to be considered has been set out in some detail at paragraph 7 and following of the written submissions provided by Ms Giles, and I accept that those paragraphs accurately state the law.
In particular, as McHugh J said in his often cited reasons in Gallo v Dawson (1990) 93 ALR 479, the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, and the discretion will be exercised in favour of an applicant only upon proof that strict compliance with the rules will work an injustice. His Honour went on to say that:
In order to determine whether the rules will work in 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.
Importantly his Honour then went on to say:
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.
Another useful expression of the relevant principles is that of Lindenmayer J in Joshua & Joshua (1997) FLC 92-767, where his Honour set out the law, citing Gallo & Dawson and also Coombs & More (1990) FLC 92-175. His Honour said:
Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal.
His Honour there was clearly concerned with the merit of the proposed grounds of appeal. If there is no merit or no “substantial issue” to be raised, his Honour said the application must fail. If there is a substantial issue then
…other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise; and the desirability in the public interest that there be finality to litigation.
Dealing first then with the question of whether there is a substantial issue to be raised on appeal and the merit of the proposed grounds of appeal. The applicant originally relied upon a notice of appeal that was attached to her affidavit in support of her application, but more recently has purported to amend that notice by a further document which raises some new issues, as were identified by Ms Giles in her submissions today.
It is very difficult, the Court recognises, for someone who does not have the benefit of legal experience to draft a suitable notice of appeal. However, it does have to be said that the grounds of appeal, which are spread amongst Part C and Part E of the notice, are discursive, difficult to follow and fail to adequately particularise the complaints Ms Spencer wishes to agitate.
Ms Giles and the Independent Children’s Lawyer, Ms Cohen, who joins in opposing this application, have pointed out what they see as being difficulties in the expression of the grounds and, more importantly, what they submit is the absence of merit in the grounds on which Ms Spencer seeks to rely.
As I pointed out to Ms Spencer today, it is not enough for the Court to be satisfied that she is greatly aggrieved by the decision; it will also not be enough for the Court to be satisfied that another outcome was possibly open; and in the case of findings of fact, it will not be enough that there were other findings that might have been available to the trial judge.
The question on the hearing of any appeal here would be whether the trial judge, after a very long trial and after delivering lengthy and detailed reasons, has erred in the exercise of the extremely wide discretion conferred on him as the trial judge. In determining whether he has erred, the question is not whether other findings were available to him, but whether the findings that he did make were not at all available to him.
Having heard and read what has been said by Ms Spencer about the merit of her proposed appeal, I am not persuaded there is in fact a “substantial issue” to be determined, as I am not persuaded there is any merit in the proposed grounds.
It is also important to observe that in the draft notice of appeal, Ms Spencer set out the orders that she would ask the Full Court to make in the event I was wrong and there was merit in the appeal. Essentially, she was hoping, understandably, that the Full Court would simply reverse the decision and have the child returned to her. Again, with all due respect to a person who does not have familiarity with such matters, that would be a quite unlikely outcome. In fact, I cannot envisage circumstances where it would be remotely possible that that would be the outcome here.
The outcome, even if there were any merit in the appeal, would be that the matter would be sent back for a rehearing, which could take as long as the last trial, which would keep this family engaged in litigation for another year or two, and continue to cost the extraordinary amount of money that it has cost to date. This clearly would not be in the family’s interests and is therefore not in the child’s interests.
It is also worth recording, as was said by both Ms Giles and Ms Cohen in their submissions, that an appeal is not the only way in which Ms Spencer can agitate her concerns. If there is evidence of some change in circumstances following the making of the substantive orders, it is open to Ms Spencer to seek to agitate these issues again. She would need to be very careful about doing so, as there could be serious costs consequences, as it is normally expected that when the decision has been made, the parties will be bound by it. But the fact is that she is not entirely cut off from coming back to the Court.
It is also the case, as Mr Cohen stressed, that an appeal ought not to be utilised for the purposes of pursuing grievances against former legal representatives, Independent Children’s Lawyers and contact service staff. These are matters where there are other avenues of complaint. The appeal is directed entirely to the question of whether or not the trial judge erred in carrying out his function.
Given that I have found there is no substantial issue to be raised in the proposed appeal, it is strictly not necessary to consider other matters that go to the exercise of the discretion, but given that they have been the subject of submission, it is appropriate that I make some very brief reference to them.
First, the question of the explanation for the long delay in filing the appeal. The mother relies upon a number of factors in this regard, including her grief and upset following the handing down of the decision. She relies also upon her ill health and she asserts that Ms W, one of her former legal advisers, failed to carry out her instructions in lodging an appeal.
Given there are other matters waiting to be heard today, and given the finding I have already made, it is sufficient to say that I have read and would adopt the submissions made by Ms Giles and by Ms Cohen in relation to the explanations for the delay. I find that the delay has not been adequately explained, particularly noting that the mother has been successful in being able to institute other appeals within time, and that she engaged in fairly extensive preparation of correspondence and documentation relating to this matter at a time when she could have been attending to preparation of the appeal.
In saying that, I do not, in any way, underestimate the difficulty that a self-represented litigant has in preparing for an appeal, but it is the fact that the mother has seemingly chosen to deal with other issues, rather than what might have been perceived to be the most significant issue – i.e. challenging the substantive decision.
Turning then to questions of hardship or prejudice, the father’s legal costs to date exceed $500,000. On the other hand, there is a significant amount – $246,000 according to the father’s costs notification dated 7 July 2014 – that the mother has had to pay him by way of contribution to his costs. To continue this litigation by permitting the proposed appeal to proceed would simply continue to rack up costs for the father and potentially incur expense for the mother, but certainly occupy the time of both of them in a way that I consider would be inappropriate given the lack of prospects of success of this appeal.
Taking into account all of those matters, and notwithstanding that I readily accept the mother’s considerable upset by the outcome of these proceedings, I am not persuaded it would be an appropriate exercise of the Court’s discretion to extend the time in which to appeal. The mother’s application will therefore be dismissed.

COSTS

The application before the Court now is the respondent’s application for costs, the Independent Children’s Lawyer not being instructed to make any application in relation to costs. There is a clear basis for a costs order being made, given that the applicant came to the Court seeking an indulgence arising out of her own delay and has been wholly unsuccessful in her application.
On the other hand, I am informed that the applicant is in receipt of Centrelink benefits and has only nominal funds, perhaps a few thousand dollars. I am also told there is pending before the Court an application in relation to financial orders. I am informed that this is at a relatively early stage and that the respondent is not satisfied that the applicant’s entitlement under any property settlement would be sufficient to meet even the $5,000 which is sought today.
Ms Giles has advised that, calculated on a time costing basis, the costs involved in this application, including the comprehensive written submissions, would be $10,000 or so and this does not include the costs of the instructing solicitor in responding to this application, including the father’s late but nevertheless comprehensive affidavit filed recently.
In the circumstances, given the complete lack of success of the application, I do consider it is appropriate that there be an order for costs in the amount that is sought, but as the mother is unable to meet such an award at the moment, enforcement should be delayed pending resolution of the financial proceedings.
The order will, therefore, be that the applicant contribute to the respondent’s costs fixed in the sum of $5,000, enforcement delayed pending resolution of the financial application.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 8 July 2014, edited to correct grammatical errors and some infelicity of expression.

Associate:

Date: 12 August 2014