STRINGER & NISSEN
[2019] FamCAFC 170
•2 October 2019
FAMILY COURT OF AUSTRALIA
| STRINGER & NISSEN | [2019] FamCAFC 170 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a Notice of Appeal against interim parenting orders – Where the settled reasons were not provided to the parties before the expiration of the appeal period – Where the orders involve a young child and significant change to the child’s arrangements – Where some of the proposed grounds of appeal are arguable – Where the failure to file a Notice of Appeal in a timely way was not the appellant’s fault – Where interests of the child justify extension of time. FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Costs to be costs in the appeal. |
| Family Law Act 1975 (Cth) s 61DA Family Law Rules 2004 (Cth) rr 17.01, 22.02, 22.03, 22.09 |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 |
| APPLICANT: | Ms Stringer |
| RESPONDENT: | Mr Nissen |
| FILE NUMBER: | SYC | 1926 | of | 2019 |
| APPEAL NUMBER: | EAA | 81 | of | 2019 |
| DATE DELIVERED: | 2 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 20 September 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 April 2019 |
| LOWER COURT MNC: | [2019] FCCA 1159 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Cotter-Moroz |
| SOLICITOR FOR THE APPLICANT: | John Hertz & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Apelbaum |
| SOLICITOR FOR THE RESPONDENT: | Legalworks Pty Ltd |
Orders
That the applicant mother be granted an extension of time to file a Notice of Appeal against orders of Judge Morley made on 5 April 2019, which appeal is to be filed within seven (7) days.
That the hearing of appeal EA 81 of 2019 be expedited.
That the Appeals Registrar is directed to conduct an urgent procedural hearing and advise the parties of the date of the expedited hearing.
That the Appeals Registrar is directed to obtain the transcript of the oral reasons for judgment given on 5 April 2019, which are to be included in the appeal books.
That the costs in the application are to be costs in the appeal.
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 Stringer & Nissen 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: EAA 81 of 2019
File Number: SYC 1926 of 2019
| Ms Stringer |
Applicant
And
| Mr Nissen |
Respondent
REASONS FOR JUDGMENT
introduction
By an Application in an Appeal filed on 6 September 2019, Ms Stringer (“the mother”) seeks an extension of time in which to file a Notice of Appeal against interim parenting orders made by a judge of the Federal Circuit Court on 5 April 2019 (“the orders”). The orders concern the child, born in 2014 (“the child”) and Mr Nissen (“the father”). By a Response to an Application in an Appeal filed on 19 September 2019, the father seeks that the mother’s Application be dismissed and that she pay his costs of and incidental to the Application.
Inter alia, the orders under the proposed appeal provide for the parties to have equal shared parental responsibility (Order 1), the mother to be restrained from relocating the child’s primary place of residence away from the Town A Shire area (Order 4), for the child to live with the mother and spend time with the father, if the mother returns to live in the Town A Shire (Order 2), or, otherwise for the child to live with the father and spend time with the mother, if the mother continues to reside outside of the Town A Shire (Order 5).
An order has been made for an Independent Children’s Lawyer (“ICL”) to be appointed to represent the best interests of the child, although no-one has yet been appointed.
Background
So as to give this Application context, it is necessary to set out some brief background facts. These are taken from his Honour’s reasons and the documents filed in support of this Application.
The parties commenced a relationship in 2013, were married in 2014 and separated on a final basis in 2015.
The child was six months of age when the parties separated and remained principally living with the mother. He regularly spent time with his father. After separation, the parties and the child continued to live in the Town A area.
On 19 February 2019, the mother relocated with the child to Suburb C in the Sydney area, where she began residing with her brother. The mother deposed that she did not give the father advance notice of her intention to relocate because she was “frightened of what [the father] may do to her and to [the child]” [26].
It is uncontroversial there was no time between the father and the child until 13 March 2019 when, by arrangement between the parties, they met at Town D and [the child] was provided by the mother to the father to spend time with him, between 13 March 2019 and 21 March 2019. However, the father refused to return the child and thus on 27 March 2019 the mother filed an Initiating Application seeking final and urgent interim orders.
At the hearing before the primary judge on 4 April 2019, the mother sought, in effect, a recovery order and further interim orders that inter alia, she have sole parental responsibility of the child, that she be permitted to relocate to another city with the child, that he live with her and spend eight days each month with the father until January 2020 [10]. The father sought orders for equal shared parental responsibility, for the child to live with the mother and spend time with the father if the mother remains living in the Town A area, or, live with the father and spend time with the mother if the mother remains living in another city [14] – [16]. The father sought a further interim order that the mother be restrained from relocating the child’s primary place of residence from the Town A area [17]. The orders and judgment were delivered by telephone on 5 April 2019.
In the mother’s affidavit evidence before the primary judge, she referred to her concerns that the father posed a risk to the child. She referred to assertions made by her to police of family violence towards her by the father, and on occasions in the presence of the child [24]. Further, in the course of submissions on behalf of the mother, the mother’s concerns were raised of the safety of the child in the father’s care, particularly “assertions that the father drove with the child whilst unlicensed, drove with the child in a vehicle while the child was not properly restrained, and … that the father had left [the child] unattended whilst camping with him near a river” [58].
The father deposed that since the changeover on 13 March 2019, the child has lived with him and he has re-enrolled the child into a preschool in Town A [52]. The mother deposed that she has enrolled the child to commence kindergarten in another city in 2020 [33].
In relation to matters referred to in the mother’s affidavit by way of risk, the father asserts that he agreed to an apprehended domestic violence order in January 2019 without making admissions on the advice of his lawyer at the time, that his driver license was suspended until 29 May 2019, upon which time he will be required to have an interlock on any vehicle he drives and, that he was ordered to serve a 15 month intensive corrections order which will be completed in December 2019 [54] – [55].
Ultimately, as to issues of unacceptable risk to the child, his Honour stated:
74.…I am not approaching this matter as a risk case, given the competing proposals for orders on an interim basis made by the parties. It is totally inconsistent with any assertion of risk, let alone unacceptable risk to the child in the care of the father for the mother to propose orders where the child will be in the father’s sole care as between the parents for periods of eight days at a time each month.
75.However, and in pursuance of the best interests of [the child], it is my intention when making orders at the end of this judgment to make some mutual orders that deal with conveyance of [the child] by motor vehicles and his proper restraint and the consumption of alcohol.
The proceedings were listed for directions on 26 June 2019 and an order was made on that day for the proceedings to be listed for further mention and directions on 20 April 2020.
The Application
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 provides that an appeal is to be commenced by filing a Notice of Appeal.
Rule 22.03 sets out the timeframe within which an appeal is to be filed; namely 28 days from the date the orders were made. Rule 17.01(a) states that an order is made when it is pronounced in court by the judicial officer. The orders the subject of the proposed appeal were made on 5 April 2019. Accordingly, any Notice of Appeal against those orders should have been be filed by 3 May 2019. The present Application attaching the Draft Notice of Appeal was filed 6 September 2019, some 126 days after the final date for filing.
The principles relating to applications for an extension of time to file a Notice of Appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and 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 nature of the litigation and the consequences for the parties of the grant or refusal of leave.
Explanation for the delay
The first matter to consider is whether there has been an adequate explanation for the delay. As mentioned, the delay in filing the Draft Notice of Appeal was 126 days. The mother and her solicitor provide several reasons for delay, as contained in their affidavits filed with this Application, including:
·the unavailability of a sealed copy of the orders and settled reasons for judgment;
·the unavailability of a full copy of the trial transcript;
·an initial attempt the file the application for an extension was rejected for filing on 29 July 2019; and
·the mother’s grief as a result of the child no longer living with her.
The events leading up to the filing of this Application are set out in an affidavit filed by the mother’s solicitor. Notably, that on 8 April 2019 he sought the settled reasons for judgment from the primary judge’s chambers, and when those reasons were not forthcoming, the solicitor made additional requests on 18 April 2019, 23 April 2019 and 28 May 2019. His Honour’s reasons contain certification at the end which indicates they were published on 24 May 2019. It is common ground they were posted to the parties’ solicitors and received some days later. This is a case with some complexity and the mother’s inability to obtain the settled reasons within the appeal period and thus take advice on whether there were grounds to appeal, provides an adequate explanation for her failure to file an appeal within time.
However, the subsequent delay is less than adequately explained. In short, it would seem that those advising the mother sought to obtain a transcript of the oral reasons, and it was only on 7 July 2019, when the transcript was received, that the advisors realised this would not be readily forthcoming. It should be noted however, at this point, the date to have filed a Notice of Appeal had already lapsed by 65 days. So that the point is not overlooked, it is said that the settled reasons are materially different to those given orally and that the editing process exceeds the accepted norm. Examples of this were given in oral addresses and, if these are made out, it may be that any appeal will need to be determined having regard to the oral reasons.
I do not consider this is a valid reason for the failure to file within time, given that the transcript is not necessary for, or relevant to, the preparation of the Notice of Appeal, and even if it were, r 22.09 would allow for the Notice of Appeal to be amended when the transcript was made available. However, the mother was entitled to rely on those advising her and it is not appropriate to make her responsible for this misunderstanding.
It should be noted that the mother did not attempt to seek an extension to file a Notice of Appeal until 26 July 2019, being 98 days after the orders were available and 63 days after the judgment was made available. There does not appear to be any explanation for this particular delay. Subsequently, on 29 July 2019 the Eastern Appeals Registry rejected the mother’s documents for filing due to several technical errors contained within the Application. The next time an attempt to file the Application was 6 September 2019, this time it was filed successfully. Again, there does not appear to be an explanation for the delay of 39 days between the initial attempt to file the Application and the date it was successfully filed, albeit the submissions by counsel who appeared for the mother seemed to suggest that responsibility for this period was not entirely the mother’s fault.
Further, in the mother’s affidavit she refers to the “significant psychological impact” the orders have had on her. She deposed that on the day after the orders were made she attended upon a general practitioner, Dr N. In a report prepared by the general practitioner dated 27 June 2019, which is attached to his affidavit of 19 September 2019, he records that “[the mother] presented with a request for counselling as she was having difficulty coping with the court relocation of her son to his father. I diagnosed Adjustment Disorder and referred her to Ms O, Psychologist.” The mother asserts that the general practitioner provided her with a medical certificate for three months, for the period 16 April 2019 to 16 July 2019 and recommended counselling. While I appreciate that a delay may have been caused as a result of the mother’s diagnosis of Adjustment Disorder during this time, this does not explain the delay in bringing the present Application post 16 July 2019.
The respondent opposes the extension of time but does not point to any prejudice that flows from that delay. However, it is accepted that further litigation, delay and expense could have a worrisome effect on him. These are significant matters that weigh against an order for an extension of time.
There has been a long delay in bringing the present Application, some of which is adequately explained and some of which is not. The delay weighs against an extension of time.
The merits of the proposed appeal
The final matter that requires consideration is the prospects of success of the appeal. The point being, if the appeal was doomed to fail it would not occasion an injustice to deny an applicant an extension of time.
It is particularly important that the interim orders involve a young child and made changes to the child and the mother’s living arrangements. It is noteworthy that Order 4 restrains the mother from relocating the child’s primary place of residence away from the Town A area.
There are several grounds of appeal as presented in the mother’s Draft Notice of Appeal, which is annexed to her affidavit. The mother challenges the primary judge’s finding of fact and his Honour’s application of the law.
In short, it is contended that:
·his Honour’s findings in relation to family violence and unacceptable risk were made in error (Grounds 1-3);
·his Honour failed to correctly apply s 61DA of the Family Law Act 1975 (Cth) (“the Act”) (Grounds 4-5);
·his Honour erred in law and principle in making the findings that he did concerning the mother and the child’s relocation (Grounds 6-10);
·his Honour failed to provide adequate reasons (Ground 11).
These are serious matters which impact the mother and child. There are matters of substance raised in the Draft Notice of Appeal and this weighs in favour of an extension of time to file a Notice of Appeal. Notably, it is not apparent that the primary judge took into account the effect on the child of being removed from the parent whom he had lived with from birth and placed in the care of a parent with whom he hadn’t lived from when he was six months old. These are matters of real substance and weigh heavily in favour of an extension of time.
Conclusion
On balance, and considering the factors relevant to an exercise of discretion to allow an extension of time, I am of the view that it is in the interests of the child that an extension be given. Because of the unfortunate delays, the appeal will be expedited and it is noted that the parties indicate they can be ready within three weeks.
Costs
Costs of the application will be costs in the appeal.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 2 October 2019.
Date: 2 October 2019
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