Sullivan and Tyler (No. 2)
[2014] FamCAFC 151
FAMILY COURT OF AUSTRALIA
| SULLIVAN & TYLER (NO. 2) | [2014] FamCAFC 151 |
| FAMILY LAW – APPEAL – PROCEDURAL – Where there are a number of appeals relating to the same factual history – Where it is appropriate to consolidate appeals – Where reason for expedited hearing no longer exists and order for expedition is discharge order – Where it is accepted that the mother did not receive a copy of the Stay orders and was unaware of the correct date to file a Notice of Appeal – Where leave is granted to file a Notice of Appeal out of time. |
| Family Law Act 1975 (Cth): ss 118, 121 |
Family Law Rules 2004 (Cth): rr 22.02, 22.03, 22.12
| Gallo v Dawson (1990) 93 ALR 479 Rice & Asplund (1979) FLC 90-723 |
| APPELLANT: | Ms Sullivan |
| RESPONDENT: | Mr Tyler |
| SECOND RESPONDENT (EA 51 OF 2013 ONLY): | Ms B |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| APPEAL NUMBERS: | EA EA EA EA | 91 90 47 51 | of of of of | 2014 2014 2014 2013 |
| DATE DELIVERED: | 11 August 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 11 August 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 June 2014 |
| LOWER COURT MNC: | [2014] FamCA 448 |
REPRESENTATION
| FOR THE APPELLANT: | Ms Sullivan in Person |
| SOLICITOR FOR THE RESPONDENT: | Mr Holmes, KDB Holmes |
| FOR THE SECOND RESPONDENT (IN EA 51 OF 2013): | Ms B in Person |
Orders
That the orders made on 24 June 2014 in Appeal No EA 47 of 2014 expediting the appeal be discharged.
That the appeal hearing listed to commence on 14 October 2014 for two days is vacated.
That the time for filing a Notice of Appeal against the orders made by Justice Watts on 12 June 2014 is extended to 15 August 2014.
That Appeal Nos EA 51 of 2013, EA 90 of 2014 and EA 91 of 2014 be consolidated with and heard at the same time as Appeal No EA 47 of 2014 albeit Appeal No 51 of 2013 be heard immediately after the other appeals have been argued.
That the appeal books for Appeal EA 90/2014 & EA 91/2014 comprise each of the following documents arranged in the following order:
1.Notice of Appeal (EA 90 of 2014) filed 18 July 2014;
2.Notice of Appeal (EA 91 of 2014) to be filed on or before 15 August 2014;
3.Orders of the Honourable Justice Watts made on 12 June 2014
4.Orders of the Honourable Justice Watts made on 20 June 2014;
5.Orders of the Honourable Justice Watts made on 26 March 2014;
6.Orders of the Honourable Justice Watts made on 14 August 2013;
7.Orders of the Honourable Justice Watts made on 30 January 2013;
8.Orders of the Honourable Justice Loughnan made on 22 November 2011;
9.Orders of the Honourable Justice Loughnan made on 18 August 2011;
10.Reasons for Judgment of the Honourable Justice Watts delivered 20 June 2014;
11.Reasons for Judgment delivered 19 April 2013 (where an interim order was made pursuant to s 118(1)(c) of the Act);
12.Reasons for Judgment of the Honourable Justice Watts delivered 26 March 2014;
13.Application in a Case filed by the mother on 9 May 2014;
14.Affidavit filed by the mother on 9 May 2014;
15.Case Outline document of the father filed 6 June 2014;
16.Case Outline document of the mother 12 June 2014;
17.Transcript of Proceedings before the Honourable Justice Watts on 12 June 2014;
18.List of Exhibits.
That the Appellant Mother be responsible for the preparation of the appeal books.
That the Appellant Mother prepare a total of eight (8) copies of the appeal books, and file in the Sydney Registry of the Court on or before 6 October 2014, four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.20(2) of the Family Law Rules 2004, and serve on or before 13 October 2014 two (2) copies of the appeal books on the Respondent Father.
That pursuant to Rule 22.21 the appeal will be taken to be abandoned if the appellant fails to file the appeal books by the due date. If the appellant seeks an extension of time for filing of the appeal books, such extension should be sought with the written consent of the other party, or if such consent is not forthcoming, by filing an application in an appeal, with supporting affidavit, seeking such extension of time, prior to the close of business on the due date for filing of the appeal books being 6 October 2014.
That the Appellant Mother file and serve her Summary of Argument and List of Authorities in respect to all appeals with the Appeals Registrar on or before 27 October 2014.
That the Respondent Father file and serve his Summary of Argument and List of Authorities in respect to all appeals with the Appeals Registrar on or before 24 November 2014.
That each party be at liberty to apply for any further directions regarding any question arising out of the appeal book index to the Appeals Registrar, and regarding any other issue, to a judicial member of the Appeal Division, upon five (5) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
That the costs of and incidental to this hearing be reserved to the Full Court.
To the extent these orders do not comply with the Family Law Rules 2004 there be dispensation from such compliance.
IT IS NOTED THAT
In the event either party seeks to rely on an exhibit in the proceedings he or she shall provide photocopies of such exhibit for members of the Full Court.
The Appellant or Legal Representative for the Appellant is to contact the Appeal Registry on 9217 7206 in order to make an appointment to file the Appeal Books.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler (No. 2) 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 SYDNEY |
Appeal Numbers: EA 91/2014; EA 90/2014; EA 47/2014; EA 51/2013
File Number: SYC 889 of 2008
| Ms Sullivan |
Appellant
And
| Mr Tyler |
Respondent
And
| Ms B |
Second Respondent (EA 51/2013 only)
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the court is a number of appeals and an application in an appeal, filed by Ms Sullivan (“the mother”) in parenting and other proceedings. In all bar one, the respondent is Mr Tyler (“the father”). Ms B is the second respondent in Appeal EA 51 of 2013.
On 26 March 2014, Watts J made final parenting orders concerning the parties’ only child, D (“the child”), born in August 2004. Those orders were made after prolonged litigation that occurred over a number of years and after an extensive final hearing.
On 23 April 2014, the mother filed a Notice of Appeal against the final parenting orders (“the substantive appeal”). The substantive appeal is EA 47 of 2014. That appeal is set down for an expedited hearing before the Full Court on 14 and 15 October 2014.
As a consequence of the mother informing the court today that she proposed to bring an application to stay the appeal hearing pending completion of an appeal she has given an indication she will lodge with the New South Wales Court of Criminal Appeal, it was agreed the October dates should be vacated. Doing so is fundamentally inconsistent with the basis upon which expedition of the substantive appeal was granted, and that order will be discharged.
On 12 June 2014, Watts J made orders refusing the mother’s application to stay the final parenting orders. By her appeal which would become EA 91 of 2014, the mother seeks to extend time to appeal the orders refusing her application for a stay. This is another of the issues to be determined in this hearing.
In addition, the mother has filed a number of other appeals that must be considered. Briefly, they concern appeal numbers EA 90 of 2014 and EA 51 of 2013. Appeal EA 90 of 2014 is concerned with orders made by Watts J on 20 June 2014 pursuant to s 118(1)(c) of the Family Law Act 1975 (Cth) (“the Act”) which, pending finalisation of the substantive appeal, restrained the mother from filing any further applications for parenting orders without leave of the court.
Appeal EA 51 of 2013 is in relation to orders made on 12 April 2013 by Loughnan J dismissing the mother’s application for injunctions against the father and Ms B.
The mother seeks to consolidate a number of these appeals (including, she indicated this morning, appeal EA 91 of 2014 if leave is granted) so that they could be heard at the same time as the substantive appeal. Having adjourned to prepare these reasons, when I returned the mother indicated that she no longer wanted EA 91 of 2014 to be consolidated with the other appeals and would want to be in a position to prosecute that appeal in October 2014.
Of the court’s own motion EA 51 of 2013 was listed this morning to consider whether that too should be consolidated with the other appeals and, in particular, the substantive appeal. Ms B appeared by telephone and said she did not want to be caught up in the other appeals and is concerned she might be if an order for consolidation is made.
Leave to appeal in relation to the stay – EA 91 of 2014
In order to provide some context to the issues that need to be determined it is necessary to briefly outline the key orders made in the substantive judgment. Although the mother disagrees with aspects of the reasons for judgment published by Watts J on 26 March 2014, it provides some useful background context for this complicated case.
By orders dated 26 March 2014, Watts J determined that the parties’ child is to live with the father and to spend no time with the mother. To a considerable degree the final orders concerning the child’s living arrangements replicated the operative interim orders. Electronic communication by the child with the mother is provided for. In addition, the father was ordered to have sole parental responsibility for the child, with the condition that he is to consider the mother’s views and advise her of any final decisions he makes regarding the child’s care of the type referred to in the order.
Key to his Honour’s judgment are findings that, contrary to the case mounted by the mother, there exists no unacceptable risk that the father had or may sexually abuse the child, or that he posed an unacceptable risk to the child of psychological harm. On the other hand, his Honour found there would be significant psychological risks for the child if he spent time with the mother.
After filing her appeal against these orders, on 9 May 2014, the mother filed an application to stay the final orders pending the determination of her appeal and for interim parenting orders which would enable the child to spend time with her.
On 12 June 2014, the mother’s application was heard and, relevantly, orders were made that day refusing her application for a stay.
By operation of the Family Law Rules 2004 (Cth) (“the rules”) the mother was required to file any notice of appeal against those orders by 10 July 2014. She did not do so.
On 20 June 2014, Watts J published his reasons in relation to the stay application and the other applications that were before him on 9 May 2014.
On 18 July 2014, an application in an appeal was filed by the mother seeking an extension of time within which to file a notice of appeal against the 12 June 2014 refusal to grant a stay.
Applicable Rules and Principles
Chapter 22 of 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 (which in this case was 10 July 2014).
Provision is also made by r 22.02 for an application for leave to appeal in relation to which r 22.12 contains examples of procedural orders which may be made in respect of such applications.
The principles relating to applications for an extension of time to file an 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. 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, the consequences for the parties of the grant or refusal of leave and the explanation for the delay proffered by the applicant.
In order to determine whether or not compliance with the times fixed by the rules would have the rule become instruments of injustice, it is necessary to consider the possible merits of the appeal. The point being, refusal of an application to extend time for an unmeritorious appeal would not work an injustice.
Discussion – the stay appeal
In support of her application filed on 18 July 2014, the mother relied on her affidavit filed the same day.
The mother explains that following the hearing on 12 June 2014, judgment was reserved. In addition to her applications for a stay and interim parenting orders, on the same day, Watts J also heard an application by the father seeking vexatious proceeding orders against the mother. The gravamen of her evidence is that she understood his Honour reserved his decision in relation to all matters. The submissions made on the father’s part emphasise that the mother was present in court on 12 June 2014, and it should be inferred that she heard his Honour pronounce the orders whereby her application for a stay was refused.
I do not understand there to be any evidence which indicates that formal orders in relation to the dismissal of the stay issued on 12 June 2014 or shortly thereafter. If they did, the mother’s evidence is she did not receive them.
On 20 June 2014, the mother received a copy of a judgment published by Watts J the same day which addressed, relevantly, the vexatious proceedings application and the stay. The judgment indicates that orders were made on 12 June 2014 whereby the mother’s stay application was dismissed.
The mother explained that the only orders she had at that stage received were those identified at the start of the judgment. Thus, she understood that in order to appeal against the stay orders, she had to appeal against the orders referred to in the judgment of 20 June 2014. It was only when she attempted to file a notice of appeal on 18 July 2014 that she discovered the stay orders had actually been made on 12 June 2014 and that time ran from that date rather than 20 June 2014.
As I indicated earlier, at the commencement of the hearing today the mother sought to have the stay appeal consolidated with the other appeals, but excluding EA 51 of 2013, and for the consolidated appeals to be heard at the same time as the substantive appeal. She says that as the appeal books would be the same for the 12 June 2014 stay appeal and the 20 June 2014 vexatious proceedings appeal, there can be no inconvenience to the father if she is permitted to file a notice of appeal out of time. Of course, that submission ignores that an additional appeal, although it may relate to material otherwise before the court, will require submissions on a different legal point.
I accept the mother’s evidence that she did not receive a copy of the 12 June 2014 orders and she was unaware that his Honour had done more on 12 June 2014 than reserve his decision. I accept that she wrongly believed the operative orders were those referred to on the 20 June 2014 judgment. Her delay in filing the appeal within time is thus explained to my satisfaction. The mother’s actions in attempting to file a notice of appeal within what she perceived to be the correct date demonstrates her bona fides and her ability to prepare and present the documents required to prosecute her appeal.
The father submits that even if there is an adequate explanation for the mother’s delay, the court would need to look carefully at whether the proposed appeal is, in fact, a step which could properly be categorised as vexatious or a legal nonsense. The point being that if the mother was able to secure a stay of the final orders, the operative orders then become his Honour’s earlier interim order by reason of which the child does not spend time with the mother. In effect, she would be in the same position if a stay is ordered as she is if the final orders are allowed to operate unimpeded.
In relation to the practical outcome of a stay being given or not given, I respectfully agree with the submissions made by the solicitor for the father as to the practical consequences. However, I am concerned with the legal consequences, and there would become available to the mother at least the theoretical opportunity to present an application which addresses the s 118(1)(c) restraint order and which, if persuasive, would theoretically enable her to run an application for an interim order. Provided, of course, there is evidence which would address, inter alia, the rule in Rice & Asplund (1979) FLC 90-723.
The fact that, as a matter of practicality, on the information presently available, the mooted application might be doomed to fail is not a complete answer to a question which is concerned with the legal consequences of granting or not granting the application for a stay. In my view, the factor that is ultimately persuasive of an extension of time is the gravity of the orders under challenge in the substantive appeal, that is, an outcome which sees a child denied the opportunity for contact other than electronically with a parent. In a finely balanced decision, I am persuaded that the mother should be given an extension of time within which to file an appeal in relation to the refusal to grant her a stay.
As I have earlier explained, I understood until a few moments ago it to be agreed that it would be in the interests of the efficient use of the court’s and parties’ resources that the stay appeal be consolidated with the substantive appeal. The mother has now indicated that she would seek to resile from that position. Although she can resile from it, I remain of the view that the arguments in favour of consolidation are persuasive. In order to determine the stay appeal, considerable time will need to be spent in examination of his Honour’s reasons for the substantive orders. It would not be reasonable in circumstances where this court, on the mother’s application, had expedited the substantive appeal which was then listed for hearing on 14 and 15 October 2014, and which hearing the mother now says should be stayed, to make an order for expedition of the stay appeal.
Appeal against vexatious proceedings order - EA 90 of 2014
As has already been mentioned, on 12 June 2014, the father made an application for an interim order pursuant to s 118(1)(c) of the Act that would restrain the mother from filing any further parenting applications without leave pending disposition of the substantive appeal. An earlier s 118(1)(c) order made against the mother on 19 April 2013 was discharged when his Honour made the final parenting orders which are the subject of the substantive appeal.
Notwithstanding that his Honour had pronounced final parenting orders, the mother immediately sought to pursue an application for interim parenting orders entirely at odds with the final orders. That application was refused by his Honour and was the catalyst for the father’s application for another vexatious proceedings order. The order sought concerned the period until the mother’s substantive appeal is determined. The Independent Children’s Lawyer (“ICL”) neither supported nor opposed the father’s application.
His Honour found that the mother’s latest interim parenting application was vexatious. At [58] he said:
I find that the mother’s filing of the new application for interim parenting orders was vexatious for two reasons. Firstly, had the application for a stay been granted, the order requiring the mother to seek leave in relation to filing an application for new interim parenting orders would have revived, and she should not have filed the application without seeking leave. Alternatively, as has happened, in circumstances where the stay was refused, the application for interim parenting orders is unsustainable given the existence of the final parenting orders. In those circumstances I find that her filing of an application for further interim parenting orders was vexatious.
As I indicated earlier, the mother filed a notice of appeal in relation to that order within time, and it is her application that this appeal be heard at the same time as the substantive appeal.
I am satisfied that in all of the circumstances, it is appropriate to consolidate this appeal to be heard along with the substantive appeal and the stay appeal. The appeals can be consolidated without incurring additional costs for the parties and are an efficient use of the court’s resources. I also take into account the fact that these appeals arise from the same factual background and there are obvious practical advantages of dealing with all orders in the one hearing.
Appeal against refusal to order injunctions – EA 51 of 2013
This appeal concerns interlocutory orders made by Loughnan J on 12 April 2013 (“the book appeal”). It has been listed of the court’s own motion so as to hear from the parties whether it should be heard at the same time as the other appeals.
Ms B appeared by telephone and provided written submissions. It is her view that the parenting and other appeals have no obvious relationship to the book appeal and that consolidation should not be ordered. According to her, the book has been withdrawn from publication which means there is no utility in this putative appeal being permitted to go forward. If it does, it is her intention to bring an application for security for her costs associated with the appeal against the mother. Be that as it may, the mere fact that the book has been withdrawn does not render the appeal futile.
The application considered by Loughnan J concerned the mother’s application to restrain Ms B from the ongoing publication of an electronic book. She also sought an injunction against the father to prevent the publication of certain material. Finally, she sought that the court encourage or cause steps to be taken in relation to what she said were breaches of s 121 of the Act.
Regarding the mother’s applications for injunctions against Ms B and the father, his Honour determined that making the orders sought would be an exercise in futility. Loughnan J, in considering the fact that the information concerning the child was readily accessible on the internet, determined, in effect, that he could not be satisfied that the granting of the injunctions sought would be effective in reducing the amount of information publicly available about the child and his parents. Thus, this aspect of the mother’s application was dismissed.
The second type of order sought by the mother was for the court to request relevant authorities to investigate and take action under s 121 in relation to breaches she asserted, of that provision, by Ms B and the father. His Honour found that there was no evidence before him that relevant authorities had been asked to investigate any breaches of the type alleged by the mother and he was not persuaded that the steps she asked the court to take were appropriate or necessary. Thus, that aspect of the mother’s application was also dismissed.
By her amended notice of appeal filed on 2 September 2013, the mother sought leave to appeal the orders made by Loughnan J. In accordance with the court’s usual approach to applications for leave to appeal and leave if it is given, the appeal would be heard simultaneously.
It is my view that the significant commonality of parties and subject matter makes it appropriate that EA 51 of 2013 is heard by the same bench and at the same time as the other appeals, albeit immediately after the other appeals have been argued. This should address Ms B’s concern that her time not be taken up by the parenting and other appeals to which she is not a party. Proceeding in this fashion should minimise the cost to the parties and the court.
I shall make an order consolidating this appeal with the others but, as I have said, on the basis it will be heard after the others have been considered. It may be that the bench before whom these appeals are ultimately listed decides to interpose the book appeal at a time of mutual convenience and not necessarily at the end of the other appeals.
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered 11 August 2014.
Associate:
Date: 20 August 2014