Thompson and Hardy
[2012] FamCAFC 96
•5 July 2012
FAMILY COURT OF AUSTRALIA
| THOMPSON & HARDY | [2012] FamCAFC 96 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where the appellant believed the notice of appeal was filed within time – Where the proper Registry at which to file the appeal is in a different State to the residence of the appellant – Where the appellant acted promptly to file an application for an extension of time – Where the delay was short and explained – Application allowed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| APPELLANT: | Ms Thompson |
| RESPONDENT: | Mr Hardy |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Steiner |
| FILE NUMBER: | CRC | 250 | of | 2010 |
| APPEAL NUMBER: | NA | 56 | of | 2012 |
DATE DELIVERED: | 5 July 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 5 July 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 23 May 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Robert Balzola & Associates (Legal) |
| SOLICITOR FOR THE RESPONDENT: | MBT Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Burridge Harris & Flynn Lawyers |
Orders
The time for the appellant mother to file a Notice of Appeal out of time against the orders of Federal Magistrate Jarrett made 23 May 2012 be extended to
4 pm on 9 July 2012. Such Notice of Appeal be served by the same time and date on the solicitors for the respondent father and the Independent Children’s Lawyer.
The applications of the appellant mother filed 28 June 2012 otherwise be dismissed.
The costs of the respondent father and the Independent Children’s Lawyer be reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thompson & Hardy 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 BRISBANE |
Appeal Number: NA 56 of 2012
File Number: CRC 250 of 2010
| Ms Thompson |
Appellant
And
| Mr Hardy |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By an application in an appeal filed 28 June 2012 the mother seeks an extension of time in which to file an appeal against final parenting orders made by Federal Magistrate Jarrett on 23 May 2012 in relation to the parties’ son, born in March 2002. The mother also seeks that the orders be stayed and the appeal be heard at the Sydney Registry of the Family Court, as all parties are from New South Wales. An application for a stay of the orders is listed before Federal Magistrate Jarrett on 10 July 2012.
The orders of Federal Magistrate Jarrett discharged earlier parenting orders made in December 2005, and provided new living and contact arrangements for the child. It was ordered that:
2. The child […] born […] March, 2002 live with the father.
3.The father have sole parental responsibility for [the child] and that he notify the mother in writing of any decisions he has made for [the child] in respect of:
a. Choice of schools;
b. Significant health care treatment
within 7 days of the making of such a decision.
4.The respondent mother be restrained by injunction from entering, attending at, or attempting to enter the applicant father’s place of residence […] except with the father’s written consent.
5.The respondent mother be restrained by injunction from entering, attending at or attempting to enter the places of education of [the child], except with the father’s written consent.
6.The respondent mother be restrained by injunction from communicating with [the child] by any means with the exception of one twenty minute phone call once per week between 7.00pm and 7.30pm on Fridays. The father shall, for the period commencing upon the making of these orders and expiring at midnight on
28 December, 2012, be at liberty to supervise and monitor such telephone calls.
7.From 22 August, 2012 [the child] shall spend supervised time with the mother at [Contact Centre C] for two hours each alternate weekend for a period of three months.
8.Both the father and mother to the best of their endeavours follow all advice of [Contact Centre C] including intake interviews, course and counselling requirements.
9.After the expiry by the effluxion of time of order 7 hereof, and provided the contact set out therein has happened, [the child] shall thereafter spend time with his mother with such frequency and on such conditions as the parties may agree.
10.A Recovery Order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
a. To find and recover [the child] and to deliver him to the father at [C] in the State of New South Wales, or such other place as the father and the person effecting such recover agree to be appropriate; and
b. To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that [the child] may be found.
11.That no later than 4.00pm on Monday 28 May, 2012, the respondent cause [the child’s] personal effects, includes all school supplies to be delivered to the office of the solicitor for the applicant.
12.Family Consultant […] and the Independent Children’s Lawyer if she considers it appropriate, meet with [the child] on Thursday 31 May, 2012 at such time and place as maybe [sic] agreed with the applicant, for the purpose of explaining to [the child] the effect of these orders and the reasons for which they have been made.
In support of her application the mother filed an affidavit, sworn
on 27 June 2012, seeking to explain the reason for delay in filing the draft notice of appeal. She also filed a further affidavit, sworn on 20 June 2012, which canvasses a range of substantive issues largely irrelevant to the purposes of this application. The mother’s applications for a stay of the orders and transfer of the appeal to the Sydney Registry, and the admission of her second affidavit into evidence in the appeal, are opposed by the father in his response filed 4 July 2012.
Background
There is some difficulty in considering the mother’s application due to a lack of published reasons from the Federal Magistrate, and the Court first instance file being in the possession of the Federal Magistrate (who at the time of this hearing was on leave). The following relevant background information can be gleaned however, from the material contained in the appeal file.
The parties commenced a relationship in the early 1980s, were married in 1987 and separated around 2005. In 2005 the parties made consent orders that the child would live with the mother and have contact with the father as agreed between the parties. In 2010 the father commenced proceedings in the Federal Magistrates Court for further final parenting orders, and in March, April and July 2011, interim orders relating to the father’s time with the child were made.
The parties and the Independent Children’s Lawyer each reside in New South Wales. Earlier events in the course of the parenting proceedings took place at the Coffs Harbour Registry of the Federal Magistrates Court, which is considered under the branch of the “Northern Region” of the Court, the main registry for which is at Brisbane. Accordingly, the final hearing before the Federal Magistrate was held at Brisbane.
The appellant mother did not appear at the hearing, and does not appear to have been represented at the time. The mother had however filed a response to the father’s application for orders, in which she sought orders that she have sole parental responsibility, that the child live with her and have supervised contact with the father with such contact to be regulated by the recommendations of an expert report.
The father and the Independent Children’s Lawyer were both represented at the hearing by counsel. It is apparent from a transcript of an excerpt of the proceedings on 22 May 2012 that several independent experts were involved in the matter in the lead up to the hearing. The father sought orders that he have sole parental responsibility, that the child live with him and have contact with the mother four times a year on a supervised basis, with telephone contact once per week.
The father was generally supported in his position by the Independent Children’s lawyer, whose position was that the child’s best interests would be served by orders that the father have sole parental responsibility, the child live with the father and have no contact of any kind with the mother for a period of three months. The mother had put forward some allegations of family violence against the father, which were denied by him.
The final orders the subject of the mother’s proposed appeal were made following a two day hearing in the Federal Magistrates Court at Brisbane on
22 and 23 May 2012. The reasons for judgment have not yet been published.
By 6 June 2012 the child had not been delivered to the care of the father and the father made a further application for orders to fulfil the recovery order provided for in order 10 made 23 May 2012. On 6 June 2012 the Federal Magistrate made orders on an ex parte basis, that the child’s name be placed upon the airport watch list, that the State and Federal police do all things necessary to assist in the location and recovery of the child, that a Commonwealth information order in respect of both the child and the mother be issued, and that the father’s solicitors be granted leave to publish and broadcast the name and details of the child and the mother.
The matter has been further complicated by the mother’s failure to appear in person at this hearing. It is not necessary to provide every detail as the mother now has a lawyer who informs that late yesterday he filed a Notice of Address for Service in Sydney. Mr Balzola appeared for the mother by telephone from Sydney. The solicitor for the father and the Independent Children’s Lawyer also appeared by telephone from their respective offices in New South Wales.
Extension of time Principles
In Clivery & Conway [2007] FamCA 1435 the well known principles applicable to extension of time applications 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.
In this matter it is appropriate that the explanation for delay be discussed first, followed by consideration of the merits of the appeal.
Explanation for the Delay
The orders the subject of the proposed appeal were made on 23 May 2012. In accordance with rule 22.03 of the Family Law Rules 2004 (“the Rules”), the mother had 28 days (therefore by 20 June 2012) within which to file her notice of appeal against the orders.
In her affidavit sworn 27 June 2012, the mother says she originally filed the notice of appeal electronically, and by express post and facsimile to the Parramatta “Family Court National Registry”, on 20 June 2012. The mother does not provide as annexures to her affidavit any records of emails, or postage or facsimile receipts.
The mother says further in her affidavit that the appeals assistant in Brisbane was “on an RDO when the electronic submission was sent to Brisbane and [she] only got a response from [the Registrar] on 26th June 2012 advising refusal of appeal documents as claimed [she] was a day late in lodgement”.
In the extension of time application, the mother says she was unaware of the jurisdiction restraints which required her to file her appeal documents in the Brisbane Registry.
The information provided by the Northern Region Appeals Registrar and confirmed by email records is that the mother first emailed documents to the Court, specifically to the Parramatta Registry, New South Wales (which is also the location of the National Enquiry Centre) on 21 June 2012, one day after the appeal filing period had lapsed.
The email correspondence demonstrates that the appeals assistant received and responded to the mother’s email the same day on 21 June 2012, requesting a contact number in order to speak with her about the appeal documents. Having received no reply, the assistant emailed again on 22 June 2012. The mother replied by email on 25 June 2012, advising that email was the only means of communication at her disposal.
A letter from the Regional Appeals Registrar was subsequently emailed to the mother on 26 June 2012, advising her that the appeal documents received on
21 June 2012 were out of time in accordance with the Rules, and that if she wished to proceed she would be required to make an application for an extension of time. The Registrar also explained the procedure for the mother to seek a stay of the orders made by the Federal Magistrate.
The mother’s application to extend time and two affidavits were received by facsimile at the Brisbane Registry at approximately 6 pm on 27 June 2012 and filed by the Court on 28 June 2012.
It is apparent from the correspondence between the mother and the Court that although the mother was out of time in seeking to file her appeal, she believed that she was within time. Further, although the extension of time application was not technically filed correctly until approximately one week after the appeal period had expired, the mother had clearly intended and attempted to commence appeal proceedings in the belief that she was within time, and in any event when she was only one day out of time. Notwithstanding minimal communication to the Court, it is apparent that the mother made prompt efforts to file the required material to bring an application to extend time.
The father cannot be said to be significantly prejudiced by a one day, or one week delay. His solicitor quite properly acknowledged in this hearing that the delay was short. The matters raised in the father’s affidavit filed in support of his response address the wife’s delay only to note that no documents in support of her claim that she filed the appeal within the required timeframe of 28 days have been provided.
In the circumstances I consider the wife’s explanation for the delay is sufficient to allow an extension of time.
Merits of the Appeal
As mentioned above, the reasons for judgment for the orders which the mother seeks to appeal have not yet been delivered by the Federal Magistrate. Any proper consideration of the merits of the mother’s proposed appeal is therefore extremely difficult.
In the draft notice of appeal the mother raises five grounds of appeal:
1.That [sic] Court failed to consider all relevant material and evidence.
2.That the Court erred in its decision by not according procedural fairness to the Appellant Mother.
3.That His Honour Judge Jarrett displayed apprehended bias.
4.That His Honour Judge Jarrett made directions with which the Appellant Mother could not comply.
5.His Honour failed to consider the best interests of the child be refusing an Application to transfer the matter to the Magellan List.
The mother seeks a range of orders in the appeal:
1.Appeal be allowed.
2.Orders of the Court made 23rd May 2012 be stayed.
3.Sole parenting responsibility of [the child] born […] March 2002, now aged 10 years and 3 months be given to the Appellant Mother until the child attains the age of 18 years.
4.That a new ICL be appointed on behalf of the child.
5.That the Father have supervised contact at times as ordered by the Court.
6.That the child live with the Mother.
7.That this matter be transferred to the Magellan List.
8.That the matter be transferred to the Family Law Court Parramatta.
The mother appears to have prepared the notice of appeal and application for an extension of time herself. The generally vague grounds and the orders sought are further explained, to some extent, by her affidavit sworn on
20 June 2012.
Ground 1 in relation to relevant material and evidence appears to concern mostly what the mother says is evidence of family violence by the father, and evidence of the poor mental health of the child. The mother says the orders made expose the child to an unacceptable risk of family violence, which is said to be “documented as far back 1980”. She refers to a range of reports and documents including written Court appointed psychiatric reports, the Family Report, written affidavits from other siblings, police reports, and a school counsellor report. These claims clearly relate also to ground 5 about the failure to list the matter on the Magellan List.
In relation to the orders and the mental health of the child, the mother says that “[r]eports from children’s psychologists refer to [the child’s] suicide ideation from the prospect of having to live with his father”. She says the child has stated he will kill himself if sent to live with the father. She further says that the Federal Magistrate:
57.…ignored the expressed effect that the child would have if he were to be taken away from the only primary carer…his honour made orders that the child immediately reside with the father he does not know, and that he not have any contact with the mother whom he has been living with since birth. This would have great consequences on the mental health of the child as he has already displayed anxiety and much angst towards the idea that he may have to live with his father.
The mother’s affidavit contains statements about a denial of procedural fairness to both the child and to her (ground 2). On the material available, of most significance in my view is the issue of the mother’s failure to appear at the hearing and the Federal Magistrate’s decision to proceed in her absence. The mother first explains that her request for an adjournment (in order to obtain legal representation and appeal a refusal of Legal Aid funding) was refused, “though there were no special circumstances to refuse”.
The mother complains that her lack of financial resources meant it was impossible to fund travel, accommodation and wages for her ten witnesses from New South Wales to Brisbane. She further said that she had applied to be heard by electronic communication for the hearing in Brisbane, however this was refused by the Federal Magistrate.
The following paragraphs from the mother’s affidavit sworn 27 June 2012 contain her explanation for her failure to appear at the hearing in Brisbane on 22 and 23 May 2012:
97.…on Monday 21st May 2012, at approximately 4.45pm, the day before the hearing in Brisbane, [the mother] spoke to Justice Jarrett’s associate, a male person whose name is unknown at present, to advise that she was unable to attend the Court hearing the following day as she was ill and had a Medical Certificate from Dr [S].
98.Dr [S] faxed a medical letter detailing the mother’s inability to participate in the court proceedings to the Court on Monday 21st May 2012 on behalf of the mother.
99.The mother tried to contact court again on the morning and was told again by Justice Jarrett (via his associate): “no GP can dictate to Justice Jarrett or this Court. So you catch a train or the trial will be heard and orders made in your absence”.
In respect of the ground 3 suggestion of apprehended bias the mother says the Federal Magistrate, “gave the father legal direction during a court hearing and also stated in court that he (the father) should go for 100% custody and basically told the father how to do this”, and on 7 March 2011 “screamed words to the effect: “what sort of a mother are you anyway I’ve got every right to give the child to his father right now”, and in February 2012 during a telephone conference, said “words to the effect: “I have already made my mind up about you””. The mother’s account in paragraph 99 of her affidavit reproduced immediately above also appears to be an allegation of bias or improper behaviour by the Federal Magistrate.
In relation to the claim that a new Independent Children’s Lawyer should be appointed, the mother complains that the current lawyer has failed in her duties by: not conveying the child’s wishes to the Court, by not allowing the mother to assist the child in his instructing, and by not sending “copies of affidavits of all parties (the mother) to the Court Assessor, thus ensuring that the report and interview were biased”. It is the mother’s suggestion that “[t]he child clearly wishes to dismiss his previous legal representative […] for various reasons including this solicitor showing total and complete lack of disrespect for her client. The child also wishes to dismiss his legal representation as she refuses to convey his wishes in court”.
The father’s affidavit in support of his response addresses the merits of the mother’s appeal only insofar as the order she seeks about transfer of proceedings to the Sydney or Parramatta Registry.
The majority of the father’s affidavit describes his efforts to locate and recover the child in accordance with the orders of 23 May 2012 and 6 June 2012. In his response, the father seeks an order that the mother provides to him and his solicitor the current residential address and telephone number for herself and the child.
At the hearing of the application, the Independent Children’s Lawyer acknowledged the short delay and that the mother had genuinely tried to file an appeal. Quite properly the Independent Children’s Lawyer drew the Court’s attention to concern about the child.
This matter was listed for urgent hearing. As mentioned there are some limitations currently in any appreciation of the merits of an appeal. However, the application in relation to the appeal is a procedural matter. The delay is minimal and explained. The application to extend time to file an appeal should be allowed.
As to the other applications, they will be dismissed. First the proper judicial officer to hear the stay application is Federal Magistrate Jarrett. It is listed before his Honour on Tuesday 10 July, next week. Secondly the mother asks that any appeal be heard in the Sydney Registry. That application is premature. If the mother files a notice of appeal and attends to the necessary directions, an application that the appeal be heard in the Sydney Registry could be filed with supporting material. It would also be necessary for the other parties to have a proper opportunity to reply.
Costs
The mother seeks an indulgence. Most likely she should pay the costs of this application but that question can best be determined at a later time after a proper consideration of the merits of the appeal.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 5 July 2012.
Associate:
Date: 5 July 2012
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