Valdez and Frazier

[2014] FamCAFC 9

FAMILY COURT OF AUSTRALIA

VALDEZ & FRAZIER [2014] FamCAFC 9

FAMILY LAW – APPLICATION IN AN APPEAL – Application to extend time to file a Notice of Appeal – Where granting of leave is not automatic and involves the exercise of discretion – Where the applicant failed to establish an adequate explanation for his failure to apply for an extension of time – Where consideration of the grounds of appeal find that it would not be an injustice to the applicant to not grant an extension of time.

Family Law Rules 2004 (Cth): rr 22.02, 22.03, 22.12

Gallo & Dawson (1990) 93 ALR 479

APPELLANT: Mr Valdez

RESPONDENT: Ms Frazier

FILE NUMBER: SYC 2226 of 2013

APPEAL NUMBER: EA 116 of 2013

DATE DELIVERED: 6 February 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 11 December 2013

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 25 July 2013

LOWER COURT MNC: [2013] FCCA 1463

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Valdez in Person

COUNSEL FOR THE RESPONDENT: Ms Hausman

SOLICITOR FOR THE RESPONDENT: Freedman & Gopalan Solicitors

Orders

1. That the Application in an Appeal filed by Mr Valdez on

   
   

   15 November 2013 for an extension of time to file a Notice of Appeal against the orders of Judge Walker made on 25 July 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JUSRISDICTION OF THE FAMILY COURT OF AUSTRALIA IN SYDNEY

Appeal Number: EA 116 of 2013
File Number: 2226 of 2013

Mr Valdez

Appellant

And

Ms Frazier

Respondent

REASONS FOR JUDGMENT

Heading 1 style  

1. This is an application by Mr Valdez (“the father”) for an extension of time to file a Notice of Appeal.  The proposed appeal concerns interim parenting orders made in the Federal Circuit Court by Judge Walker on

   
   

   25 July 2013.  The orders relate to the parties’ only child, M (“the child”).  Relevantly, her Honour ordered that pending further order the child live with the mother (Order 6) and spend time with the father seven days in each 14 (Order 7).  The father’s quest for longer periods, including overnight time with the child failed.

2. According to the father, her Honour’s orders failed to recognise that the child is primarily attached to him and denied the child his right to a meaningful relationship and significant and substantial time (including overnight time) with his father.

3. As well as addressing the child’s living arrangements, her Honour restrained each of the parties from removing or attempting to remove the child from the Commonwealth of Australia.  By Orders 2 and 4 of the orders dated

   
   

   25 July 2013, the Australian Federal Police were requested to give effect to the order against removal (Order 2) and, “subject to any further order” they are to remove the child’s name from the Airport Watch List two years after the date of the order.  In other words, her Honour made an interim restraining order which absent further order would expire in two years.

4. If the father secures an extension of time, stated broadly, he would seek to increase his time with the child, reframe the injunction against the child’s removal from the Commonwealth of Australia so that it would continue “until further order”, along with a range of orders which presuppose a further interim hearing following release of an expert report ordered on 19 November 2013.

5. Ms Frazier (“the mother”) is the child’s mother and respondent in this application.  It is her position that the father’s application should be dismissed.  In summary, she argues that the father failed to adequately explain why he took four months to present his Notice of Appeal or why refusal of the application would constitute an injustice.  Central to the latter point is the fact that the proceedings are listed for a final hearing to commence on 17 March 2014 before her Honour.  According to the mother it follows that there is no utility to the appeal.

Background Facts

1. So as to give this application context, it is necessary to record a few seemingly uncontroversial facts.

2. The parties commenced cohabitation in late 2010.

3. The subject child was born in August 2011. 

4. Having separated under the one roof, the parties ceased to cohabit when on 13 January 2013 the father vacated their home.  The child remained with the mother and by agreement regularly spent time with the father.  Changes to those arrangements (which included that he could no longer put the child to bed in her home) were imposed by the mother in early February 2013 and again on 1 March 2013.  Although the father was unhappy with the changes imposed by the mother, so as to ensure he was able to continue to spend time with the child, he went along with the variations she imposed.

5. On 12 April 2013, the father arrived at the appointed time to collect the child from his day care centre whereupon he was informed by staff that the mother and the child had that day left for a Middle Eastern country.  It is common ground that the mother’s father passed away the day beforehand.  The information provided by the day care centre was consistent with notice given to the father by the mother’s solicitor that same day.  In the information provided by the mother’s solicitor, he was informed that the mother and child would return to Australia on 27 April 2013.

6. Concerned about these events, on 26 April 2013, the father filed an

   
   

   Initiating Application in the Federal Magistrates Court (now Federal Circuit Court) seeking parenting orders and injunctions against the child’s removal from Australia.

7. The mother and child returned to Australia on 27 April 2013.

8. Regular (but not overnight) contact between the child and father resumed in accordance with the mother’s dictates, which she said were working well.  The father remained unhappy about the arrangements, including that the arrangements did not enable him to have overnight time with the child.

9. Directions in relation to the conduct of the matter were made on 3 July 2013.

10. On 11 July 2013, the father collected the child from day care earlier than the time appointed by the mother and, instead of returning him to her at 6.00 pm as had become the practice the father retained the child overnight and returned him to day care the following day.  Although he was aware that the mother did not agree that the child spend time with him overnight, the father again retained the child overnight on 16 and 19 July 2013.  This was the catalyst for the mother’s application for urgent interim orders which was filed on 23 July 2013 and listed for an urgent interim hearing on 25 July 2013. 

11. After a defended hearing conducted without cross examination and at which both parties were represented by counsel, her Honour made interim orders for which she gave oral reasons.  The salient orders are:

    1.Each of [the father] and [the mother] and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of [the child] born … from the Commonwealth of Australia.

    2.It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years.

    3.The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said child from the Commonwealth of Australia.

    4.Upon expiration of the period referred to in Order 2 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.

    …

    6.[The child] born … live with mother.

    7.[The child] spend time with the father as follows:

    a.Each Tuesday and Thursday, and every second Friday from the conclusion of day care at 3.30 pm until 6.00 pm;

    b.Every second Sunday from 9.00 am until 4.30 pm; and

    c.Every second Saturday on the alternate weekend to the Sunday in Order 7(b) above, from 10.00 am until 4.00 pm with the mother to drop [the child] off to the father at the commencement of this time and to collect him at the conclusion of this time.

    8.For the purposed [sic] of Order 7(a) and (b) above, the father is to collect [the child] from either the day care he is attending or the mother’s residence and return [the child] to the mother’s residence on each occasion.

    …

12. In addition, her Honour ordered that the parties attend a child dispute conference with a family consultant on 30 August 2013 in relation to which a report was to issue.  The proceedings were adjourned for further mention on 3 September 2013.

13. The written version of her Honour’s oral judgment issued on 1 October 2013.  It was received by the mother’s solicitor on 3 October 2013.  Because the father did not regularly check his post office box, he is unable to say when the written reasons were received.  It is inferred that the written reasons were received at the post office box at the same time as they were received by the mother’s solicitors.

14. The father filed his application for an extension of time on 15 November 2013.

The applicable rules & principles

1. Chapter 22 of the Family Law Rules 2004 (“the rules”) deals with appeals.

2. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.

3. Rule 22.03 sets out the timeframe within which an appeal is to be filed.

4. Rule 22.02 provides for a party to make an application for leave to appeal and r 22.12 sets out some examples of procedural orders which may be made in respect of such applications.

5. In this case, the last day for filing an appeal was 22 August 2013.

6. 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 and the consequences for the parties of the grant or refusal of leave.

Discussion

1. In support of his application, the father affirmed an affidavit filed on 15 November 2013.  He explained that the reason for his delay in presenting a Notice of Appeal “… is due to the delay in the provision of Her Honour’s written reasons.  Without these reasons the court enquiry service indicated an Appeal could not be filed”.  Although this incorrect information was provided by a court employee on 18 September 2013, the timeline outlined earlier establishes that when the father received this incorrect information he was already significantly out of time.

2. Thus, although the provision of incorrect information is undoubtedly regrettable, it does not provide an adequate explanation for the father’s failure to lodge an appeal within time.

3. It is the father’s unchallenged evidence that following delivery of her Honour’s oral reasons for judgment on 25 July 2013, on 2 August 2013, his then solicitors contacted her Honour’s chambers and sought prompt delivery of her written reasons for judgment.  A copy of the transcript was ordered and produced before the 28 days had expired.  As accords with common practice, that transcript did not record her Honour’s oral reasons.

4. At some stage during that period, the father became unrepresented.  According to him, based on information provided by his former lawyers he proceeded on the mistaken belief that he could not file a Notice of Appeal until the published reasons were produced in written form.

5. When the published reasons remained outstanding, on 3 September 2013, the father contacted her Honour’s associate and again requested the written reasons.  He made a further request on 16 September 2013, which is the same day he contacted the National Enquiry Centre from where he was given the misinformation referred to.

6. As was earlier mentioned, her Honour’s written reasons issued on

   
   

   1 October 2013 and it is inferred they were received in the father’s mail box on 3 October 2013.  He checked his mail on 11 October 2013 which is when he received the written reasons.

7. The father had registered to use the Commonwealth Courts Portal and says it was incumbent upon her Honour’s chambers to provide him with an email copy of the judgment and notification it had issued.  It is his submission that as the courts have quite sophisticated information technology facilities, it was reasonable for him to assume that they would be used in this manner.  Rather than rely on assumptions, the prudent and appropriate course for the father to have taken would have had him read the material published by the courts about the Commonwealth Courts Portal.  Had he done so, he would have been more attentive to the need to check his mail for the judgment.  His imprudence does not constitute a reasonable explanation for his delay.

8. Although the father says he had already prepared a Notice of Appeal (in the form attached to his application for an extension of time), it was not until 11 November 2013 that he presented his draft Notice of Appeal.  He was appropriately advised by Appeals staff that he was required to lodge an Application in an Appeal, which he did on 15 November 2013.

9. The combination of apparently incorrect legal advice, his obtaining a transcript and diligent attempts to obtain her Honour’s written reasons within the 28 day timeframe, followed by the further steps taken by the father in the following period adequately explains his delay in filing a Notice of Appeal and/or an application for an extension of time within which to lodge an appeal prior to 3 October 2013.  However, the father has failed to establish an adequate explanation for his failure to apply for an extension of time earlier than 11 November 2013.

10. Turning then to the consequences to the parties (and the child) flowing from the grant or the refusal to extend time, it is argued by the mother that an appeal will add to the parties’ costs and almost certainly delay the final hearing listed to commence on 17 March 2014.  These submissions are accepted.  It is her argument that it is in the interests of the child and the parties that the child’s living arrangements are determined following a thorough and prompt exploration of the facts of the type involved in a final hearing, rather than a further interim hearing/appeal without cross-examination.  There is also considerable force to this submission. 

11. Although the father did not concede that the final hearing would necessarily be delayed, it is his argument that logistics should not stand in the way of a prompt appeal and, if necessary, a prompt rehearing following release of the experts report. In making this submission he failed to acknowledge that even without her Honour’s written reasons, he had been able to prepare the Notice of Appeal presented in this application and that, even without her Honour’s written reasons, the Rules enabled and required him to file his appeal within the requisite 28 days. Having taken four months to file an application for an extension of time, he was unable to present persuasive submissions as to why his proposed appeal should take priority over other cases filed in accordance with the Rules.

12. As to the utility of the proposed appeal, the father explained that the utility in the appeal would be to address what he said are erroneous findings of fact and secure a just outcome for the child.  It is his argument that a further interim hearing (of necessity prior to any final hearing) is required to re-establish the child’s relationship with him so as to ensure the child’s “access to a meaningful relationship and substantial and significant time” in an appropriate manner rather than having it restricted “… primarily on the basis of my gender”.  According to his 15 November 2013 affidavit, her Honour:

    … has endeavoured to launch a self-fulfilling set of events, events intended to provide the opportunity for [the child’s] primary attachment parent to be removed or, at the least, provide opportunity and encouragement to [the mother] to continue to marginalise [the father’s] role in [the child’s] life. 

13. There is nothing in her Honour’s reasons for judgment or the orders she made which provide any foundation for the father’s contentions. 

14. Central to the father’s contention that there is utility and merit in his appeal, is his argument that her Honour made findings in relation to the child’s attachment and failed to acknowledge that the child is primarily attached to him.  However, the parties were at issue about to whom (if anyone) the child was primarily attached.  As her Honour explained, the circumscribed nature of the interim hearing meant that she was unable to determine contentious issues.

15. On a fair reading of her Honour’s reasons for judgment, it was accepted that prior to separation the father had been quite heavily involved in the child’s routines and that for a period post separation, by agreement, he came to the mother’s home and he put the child to bed.  At [22], her Honour found:

    …So it is very likely that the child has a close relationship with both parents, but probably, more likely than not at this point of time, the mother is the primary carer.  Certainly this is reflected in the arrangements which have been implemented since January 2013. 

16. At [23], her Honour went on to say:

    However, this is something about which the court will be in a better position to make findings when there is some independent evidence available. 

17. Her Honour went on at [29] to express concern about unilateral steps taken by each of the parents in relation to the child and in relation to the father, concern that his actions in retaining the child overnight did not reflect well on him and that his behaviour was only “likely to cause tension, disruption, distrust and conflict” [30].  The unilateral steps taken by the parents were such that her Honour was concerned about their ability to prioritise the child’s emotional needs.

18. Taking into account the child’s age (he is very young), her Honour was not satisfied that an overnight arrangement for time with the father was presently appropriate and thus, she structured orders designed to continue the father’s heavy involvement in the child’s routine and made orders, the effect of which was the child would spend time with the father seven days in 14.

19. It can be seen that her Honour did not make findings about whether the child was primarily attached to the mother rather than the father but focused her attention on the uncontentious facts so as to guide her assessment about who at the time of the hearing was the child’s primary carer.  Nothing in the material provided by the father or the submissions which he presented demonstrated that the approach adopted by her Honour was not available to her.  Nor, did the father establish that he would be able to reasonably argue that her Honour acted on an error of principle or that her decision is plainly wrong such as to be tantamount to an error of law.  In my view, there is no utility in the father’s proposed appeal.

20. The material presented by the father does not establish that to refuse him an extension of time within which to present an appeal would work an injustice.  Thus, his application will be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan  delivered on 6 February 2014.

Associate: 

Date:  6 February 2014