STANLEY & BAILEY
[2014] FamCAFC 21
FAMILY COURT OF AUSTRALIA
| STANLEY & BAILEY | [2014] FamCAFC 21 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application for extension of time to file notice of appeal – Where the respondent opposed the extension of time being granted - Where the delay is insubstantial and adequately explained – Where the applicant did not contribute to the delay - Where the applicant’s solicitor took full responsibility – Where there are sufficient potential grounds of appeal which have merit – Where the refusal of leave is likely to cause an injustice – Application granted. FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the respondent sought that the applicant pay costs on an indemnity basis – Where there are no extraordinary features to justify an order for indemnity costs – Where the applicant seeks the indulgence of the court - The applicant to pay the costs of the respondent at an amount fixed by the court. |
| Marsden & Winch (2009) FamCAFC 152 |
| APPELLANT: | Ms Stanley |
| RESPONDENT: | Mr Bailey |
| FILE NUMBER: | BRC | 5936 | of | 2012 |
| APPEAL NUMBER: | NA | 77 | of | 2013 |
| DATE DELIVERED: | 12 February 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 12 February 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 November 2013 |
| LOWER COURT MNC: | [2013] FCCA 1928 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Tolton |
| SOLICITOR FOR THE APPELLANT: | AMH Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Parker Family Law |
Orders
The applicant is granted an extension of time until 4.00pm on 21 February 2014 to file a notice of appeal against order (1) made on 22 October 2013 and the orders made 4 November 2013 by Judge Demack.
The applicant pay the costs of the respondent fixed at $3,500.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stanley & Bailey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 77 of 2013
File Number: BRC 5936 of 2012
| Ms Stanley |
Appellant
And
| Mr Bailey |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
In an application in an appeal filed 12 December 2013 the applicant mother asks that the time to file a notice of appeal be extended. The orders from which she seeks to appeal were made by Judge Demack on 22 October 2013 and 4 November 2013. It can be seen that the delay in filing the application is insubstantial.
The father opposes an extension being granted.
The relevant order made on 22 October 2013 is paragraph 1:
That the injunction issue restraining both parents from taking the children [B] born … 2001 and [H] born … 2004 to any psychiatrist or therapist until further Order of the Court.
The orders made on 4 November 2013 were as follows:
1.That the mother’s Initiating Application filed on 4 September 2013 be dismissed.
2.That the mother shall pay the father’s costs in the sum of five thousand one hundred and ninety two dollars and sixteen cents ($5,192.16) by no later than 4.00pm on 2 February 2014, after which time interest will accrue at the applicable Family Law rate on a daily basis.
There has been no stay of the orders granted.
The application before Judge Demack was the mother’s, filed 4 September 2013. That application sought both interim and final orders that time the children spend with the father be supervised and that the children not see the father unsupervised and that a family report be prepared.
The father asked that the application be dismissed and for costs.
The proposed grounds of appeal are as follows:
1.The learned Judge erred in fact and law when applying the principles in Rice v Asplund and subsequent cases.
2.The learned Judge failed to take into account that the Appellant had not been served with the Response of the Respondent until entering Court and was consequently not afforded the opportunity of addressing the Respondents material [sic].
3.The learned Judge failed to afford the Appellant natural justice in that she wasn’t permitted, as a self represented litigant, to put her case forward properly, read the Respondents material or Respond to the Respondents material.
4.The learned Judge erred in failing to allow the Appellant to Respond to the Respondents costs application.
5.The learned Judge failed to have the Appellant appear by telephone link on the 4th November 2013.
6.The learned Judge erred by making Interlocutory Orders on the 22/10/2013 in respect of the children and failed to deal with them in her final judgment.
After submissions were made on behalf of the father, counsel for the mother indicated that ground 2 would be abandoned. It is apparent in several other respects that if leave is granted it would be necessary for the proposed notice of appeal to be redrafted. Some parts of the notice of appeal are difficult to appreciate in the absence of transcript.
Principles in relation to an extension of time
The basis for an extension of time, is that to refuse leave, an injustice would be caused to the applicant.
In Clivery & Conway [2007] FamCA 1435 the well-known principles in Gallo v Dawson (1990) 93 ALR 479 were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When 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 the parties of the grant or refusal of the application for extension of time.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
As can be seen an extension of time is granted to do justice between the parties. It is necessary to particularly consider:
1. The explanation for the delay;
2. The possible merits of the appeal; and
3.Potential prejudice to the respondent which cannot be mitigated by an order for costs.
Delay
In the affidavit filed 12 December 2013 on behalf of the mother, by her solicitor, Alison Margaret Hartvigsen it is explained that:
1.I first received instructions to appeal the decision of 14 November 2013 and funds were placed into trust on 15 November 2013.
2.I briefed Counsel on 15 November 2013 to draft the Notice of Appeal in this matter.
3.Counsel emailed the Notice of Appeal to me within 28 days of the decision. His email was sent by him on 26 November 2013.
4.Counsel’s email to me went to an email address that is not my main law firm email address and is one that I do not check regularly. It was not until the evening of 4 December 2013 that I saw the email. I filed the Notice of Appeal the next day.
5.My client did not cause or contribute in any way to the Notice of Appeal being lodged three working days after the 28 day period specified by Rule 22.03 of the Family Law Rules 2004.
The solicitor for the father in his written and oral submissions was critical of the evidence placed before the court in this respect. He correctly observed that the delay in seeking that the appeal be filed by way of an application in an appeal for an extension of time, which was ultimately filed on 12 December 2013, is actually some 10 days late. I observe that the solicitor for the mother takes complete responsibility for the delay.
The delay is adequately explained.
Merits of the appeal
In considering this aspect, it is necessary to refer to the background to this matter and the reasons of the judge.
The parties have two children, B born in 2001 who is 12 and H, born in 2004 who is 10. The parties separated when H was only a year old.
It seems the parents were able to agree about arrangements for the children for some time, including agreeing to orders made 14 April 2011. In summary those orders provided:
·The children live with the mother;
·Equal shared parental responsibility;
·The children to spend alternate weekends, half school holidays and other significant days with the father;
·Communication with the children when with the other parent;
·Non denigration of the other parent and encouragement of the children’s relationship with the other parent;
·The usual orders in relation to contact details of the other parent, attending school activities and the release of information.
In September 2012, after a contested hearing the mother was found to have contravened orders on seven occasions when the children were not made available for the father.
The mother filed the application which came before her Honour after some incident which she complained took place on Sunday 18 August 2013. The mother claimed that the father pointed a gun at B. The mother complained to the police who searched the father’s house and found a toy gun.
The father denied that he had pointed the toy gun at the child’s chest and that he and the children had only innocently discussed the toy gun.
The police have investigated and apparently decided to take the matter no further.
Another difficulty, it seems from the reasons of the judge is that B is not seeing her father but that H continues to see him. I was told this morning that both children are now seeing the father.
In the second paragraph of the reasons her Honour identified the issues before her was as follows:
The father, in his response filed on 21 October 2013, sought that the application be dismissed with an Order for costs. The decision which needs to be made at this juncture is whether the matter should proceed further, firstly to a family report and potentially another trial, which is the mother’s position, or whether through the application of the rules developed in the line of cases following Rice & Asplund (1979) FLC 90-725, the mother’s application should be dismissed now: the father’s position.
In deciding that the mother’s application should be dismissed based on the so called Rice & Asplund (1979) FLC 90-725 principle her Honour referred to the well-known passage in Marsden & Winch (2009) FamCAFC 152 and SPS & PLS (2008) FLC 93-363 (see [15]).
In dealing with the question of whether there is a likelihood of orders being varied in a significant way as a result of a new hearing her Honour referred to the mother’s application for a family report.
The judge decided that the apprehension of B [30]:
I do not consider that that action, as the mother alleges has been [B]’s reality, is in fact something that would create a situation where the litigation would be necessarily reopened. How the mother provides comfort and assurance to the child is an essential part of that process and the reality is that the mother seems to have failed to provide appropriate adult reassurance to the child. The mother’s inability to provide that appropriate adult reassurance to the child would seem to arise from the historic conflict between these parties.
How her Honour came to that conclusion is not entirely apparent from the reasons since the affidavit evidence of both parties was before her Honour but the mother was not cross-examined.
The judge also dismissed other complaints of the mother [32]:
The mother asserts that there a whole host of other matters which would be taken into account. All of these are matters of longstanding and none of them warrant reinvestigation by the Court. They include the poor communication, the mother’s allegation that the father is somehow disinterested in some aspects of the children’s schooling or extracurricular activities; that the younger child, [H], has some sight difficulties that the father does not appropriately address.
The father denied the mother’s allegations and had other complaints about the mother’s conduct [33]:
The father denies all of those and any other complaints the mother levels at him. The father points to the fact that the mother unilaterally moved the children’s address to the Gold Coast, meaning that his capacity to be involved in weekday activities was necessarily limited, and that he has had a real interest in their weekend extracurricular activities and has facilitated that within his power on the alternate weekends that the children are with him and that, indeed, he takes [H]’s sight issues very seriously and has taken appropriate steps to address it within his own capacity.
The judge concluded:
35.It seems to me that the plethora of small issues with respect to handover might happen and the issues of ongoing conflict and lack of communication between the parties are not matters which require the re-litigation of the matter. They are matters about which parents should be utterly ashamed of them and should be taking steps to address, and that litigation is not an appropriate forum for addressing those issues.
…
37.So I do not consider that there is a likelihood of the Orders being varied in a significant way as a result of the new hearing when one considers the mother’s evidence. The one caveat to that is that the mother’s continuing inability to understand the importance of fostering the relationship between [B] and the father may result in the only way [B]’s relationship with the father being able to be fostered is by the Court considering a change of residence. Nobody though is seeking those Orders at this juncture.
…
39.The orders which the Court might be considering is some further individual counselling for both parents with respect to understanding their parental obligations and the ability to foster a relationship between the children and the other parent.
40.There may also be some small changes with respect to how pick-up and handovers may occur.
41.None of those are sufficient to justify the reopening. When I weigh up all of those matters, I am satisfied that this Court should not provide a forum for the parents to relitigate or, in particular, the mother to relitigate the final parenting Orders, which were entered into by consent in April 2011, little more than two and a half years before the mother brought this application, including – it seemed, importantly, with the full knowledge that the mother was found to have contravened the Order by failing to provide the children to the father – in contravention proceedings determined in September 2012.
The judge then ordered that the mother pay the costs and that such costs be fixed in the sum of $5192.16. This order, although expressed to be on scale, was a significant sum.
The essential reason for the costs order appears to be at [50]:
I do consider that the mother has been wholly unsuccessful and that the father has been put to the expense of responding to proceedings and that that has been wholly as a result of the mother bringing an application when she should have, it seems to me, done something quite different when faced with the reality of the police’s advice to her.
submissions
I have had the benefit of written submissions from the applicant and the respondent. Submissions on behalf of the respondent centred on the prospects of success of the appeal although it was also contended that the delay was not properly and adequately explained.
conclusions
It is not necessary nor appropriate that the proposed grounds of appeal be examined in detail to determine whether the appeal will succeed or not. Having determined that there is sufficient excuse for the delay, it is only necessary to determine whether the refusal of leave is likely to cause an injustice.
Should leave not be granted the mother will not be able to appeal a decision which prevents her from seeking orders both on a final and interim basis. The merits of her application are difficult to determine without a full hearing of the appeal.
There are sufficient potential grounds of appeal which have merit such that an extension of time ought be granted.
Without giving any indication of a likely result of this appeal, and appreciating that it is an appeal from a discretionary decision, the better course as contended by counsel for the mother may have been to order a family report and leave the decision about whether Rice & Asplund should be applied until after the report became available (see Roe & Creswick (2013) FLC 93-554). It may also be demonstrated on the hearing of the appeal that the decision of the judge was correct.
The other aspect of the appeal was the costs order. To impose such a substantial costs order on the mother without a hearing on the merits of the application may have been unfair to her. Although as I mentioned, this is an appeal from a discretionary judgment and there is a significant hurdle to overcome in an appeal from an order for costs, being a wide discretion enjoyed by trial judges. That part of the appeal remains to be seen.
I intend to order that the mother be granted an extension of time.
Costs
It is asked that the mother pay the costs on an indemnity basis. Such an order should only be made where there are some extraordinary features. There are no such aspects to this matter. The mother should pay the costs as she seeks an indulgence from this court, not having filed a notice of appeal in time. Those costs shall be fixed at $3,500.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered ex tempore on 12 February 2014.
Associate:
Date: 12 February 2014
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