Valdez and Frazier (No 2)
[2014] FamCAFC 150
FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER (NO. 2) | [2014] FamCAFC 150 |
FAMILY LAW – APPEAL – 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 – Where applicant filed an application to reopen the case in order to adduce affidavit evidence – Where the applicant contends that the evidence reinforces the merits of the proposed appeal – Where the potential of prejudice to the respondent is relevant and would involve a further appearance with costs in circumstances where the proposed appeal adds little to the merits of the case – Where the matter does not warrant an order of indemnity costs against the applicant – HELD – Appeal dismissed.
| Family Law Act 1975 (Cth): s 117 Family Law Rules 2004 (Cth): r 22.03 |
| Frazier & Valdez (Costs) [2014] FamCAFC 71 Gelley & Gelley (1992) FLC 92-290 Reid v Brett [2005] VSC 18 Valdez & Frazier [2014] FamCAFC 9 |
| APPLICANT: | Mr Valdez |
| RESPONDENT: | Ms Frazier |
| FILE NUMBER: | SYC | 2226 | of | 2013 |
| APPEAL NUMBER: | EA | 68 | of | 2014 |
| DATE DELIVERED: | 18 August 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 4 July 2014, 11 August 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 February 2014 |
| LOWER COURT MNC: | [2014] FCCA 334 |
REPRESENTATION
| FOR THE APPLICANT: | Mr Valdez in Person |
| COUNSEL FOR THE RESPONDENT: | Mr Longworth appeared on 4 July 2014 |
| SOLICITOR FOR THE RESPONDENT: | Swaab Attorneys appeared on 4 July 2014 |
Orders
That the father’s Application in an Appeal filed on 8 July 2014 be dismissed.
That the father’s Application in an Appeal filed on 11 June 2014 be dismissed.
That the father pay the mother’s costs of and incidental to his Applications in an Appeal filed on 11 June 2014 and 8 July 2014 within one month of those being agreed or assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valdez & Frazier (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 Number: EA 68 of 2014
File Number: SYC 2226 of 2013
| Mr Valdez |
Applicant
And
| Ms Frazier |
Respondent
REASONS FOR JUDGMENT
By an application in an appeal filed on 11 June 2014, Mr Valdez (“the father”) seeks an extension of time to file a Notice of Appeal. The proposed appeal relates to an order made by Judge Walker on 26 February 2014 whereby the father’s application for contravention of a parenting order, filed
11 November 2013 was dismissed.
By that application, the father alleged that on 19 September 2013, 20 September 2013 and 26 September 2013, Ms Frazier (“the mother”) contravened orders 7(a) and 8 dated 25 July 2013. It was the father’s case that on each occasion the mother failed to make their child available to spend time with him.
In relation to each of the three alleged contraventions, the primary judge found that the father failed to establish a prima facie case against the mother.
The mother opposes the father’s application and says it should be dismissed with costs. She contends that the father has failed to provide a satisfactory explanation for his failure to present his Notice of Appeal within time or why refusal of his application would work an injustice upon the father and/or the child.
After judgment was reserved, on 8 July 2014, the father filed an application to re-open so as to admit evidence contained in his affidavit filed that same day. The application to re-open was heard on 11 August 2014 following which judgment on that issue was also reserved. These reasons also address that issue.
Background facts
The parties commenced cohabitation in late 2010.
The subject child was born in 2011.
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.
As was explained in my reasons for judgment published in a different application by the father (“the first application”) to extend time to file a Notice of Appeal (Valdez & Frazier [2014] FamCAFC 9), the parties found themselves in dispute concerning the child and, on 26 April 2013, he commenced proceedings in the Federal Magistrates Court (now Federal Circuit Court) for orders in relation to the child.
In the event, the mother filed an application for urgent interim orders on 23 July 2013 which resulted in a defended interim hearing on 25 July 2013. The orders relevant to this application were made on that occasion and are set out below:
…
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.
…
On 3 September 2013, the primary judge listed the proceedings for final hearing before her for three days commencing 17 March 2014.
The father filed the contravention application which is the subject of this application on 11 November 2013. His application was listed before the primary judge on 28 January 2014.
In the meantime, on 15 November 2013, the father filed an application for an extension of time to file a Notice of Appeal in relation to the interim orders made on 25 July 2013. The father’s application for an extension of time was listed for hearing before me on 11 December 2013.
On 6 February 2014, for the reasons contained in my judgment published the same day, the father’s application to extend time was dismissed.
Having heard the father’s contravention application on 28 January 2014, on 26 February 2014, the primary judge dismissed his application for which her reasons for judgment were given the same day.
Pursuant to r 22.03 of the Family Law Rules 2004 (Cth) (“the rules), the father had 28 days within which to file a Notice of Appeal against the
26 February 2014 order. The last day for filing an appeal as of right was
25 March 2014.
The final hearing of the substantive parenting proceedings was heard by
her Honour between 17 and 19 March 2014 and on 2 April 2014.
The father filed an application in an appeal for an extension of time to file a Notice of Appeal against the 26 February 2014 order on 11 June 2014.
Delay
In my reasons for judgment published in relation to the father’s first application for an extension of time within which to appeal, at [20]-[25], the applicable rules and principles which govern applications for an extension of time to file a Notice of Appeal are set out and need not be restated.
On the basis of that discussion, before the father can succeed in this application, there must be material upon which the court can be satisfied that to refuse his application would constitute an injustice. Factors which are often referred to include:
·whether there are adequate reasons which explain the delay;
·whether there is a substantial issue to be raised on appeal;
·the history of the proceedings;
·the conduct of the parties to the proceedings;
·the nature of the litigation; and
·the consequence for the parties (and child) of the grant or refusal of the application, the overarching principle being, to ensure that injustice is not visited upon either of the parties or the child.
The father’s evidence about the delay is contained in [6]-[13] of his affidavit filed 11 June 2014.
He points out that he is self-represented and in fulltime employment, as a consequence of which, the amount of time he has to deal with the proceedings is both limited and fully utilised. His family law litigation, which also includes the mother’s application for property settlement, involves significant correspondence and he correctly points out that he must pay attention to the property as well as parenting matters.
He says that publication of my reasons in relation to the first application for an extension of time and orders for its dismissal on 6 February 2014 meant that he had “… less than six weeks to prepare final hearing material”. Although it is accepted that had the father secured leave on the first application, the final hearing listed in March 2014 may well have been jeopardised, the orders and directions made concerning the final hearing were not the subject of the father’s first application. There can be no logical basis upon which the father could decide that he would not fully prepare his documents for the final hearing until he had a decision on his first application for an extension of time. Nor, in these circumstances, would it be logical to devote significant time and energy on the prosecution of an application when the right to bring it had not yet been given. That judgment on the first application, was not delivered until 6 February 2014, does not weigh in favour of an extension of time in this application.
The father says that the decision of the primary judge in the contravention application being delivered on 26 February 2014, and thus less than three weeks from the final hearing, “… precluded the opportunity to appeal that decision”. That statement is not accepted. Her Honour’s reasons for judgment are succinct (8 pages) and whether or not they were amenable to a meritorious appeal could have been determined within the requisite timeframe and a Notice of Appeal filed.
In expressing this view, I take into account that during the period within which a Notice of Appeal could have been filed as of right, the father appeared on his own account at the final hearing.
In addition, on 24 March 2014, he received the mother’s application for costs in relation to his unsuccessful first application for an extension of time and, on 28 March 2014, her application for costs of his unsuccessful contravention application. In relation to the former, the father filed written submissions in reply on 7 April 2014 and in relation to the latter, on 17 April 2014. For both, the father’s submissions were filed after the time within which he could appeal as of right.
It is not accepted that by giving appropriate and timely attention to the directions made in relation to the final hearing, participation in that hearing and dealing with submissions due after 25 March 2014, the father was unable to file a Notice of Appeal within time.
The father then refers to enquiries he addressed to the court’s email address related to this proposed appeal. He made his first enquiry on 4 May 2014. Of course, by then, the father was out of time. His evidence that when he made follow up enquiries on 13 May 2014 he pointed out “… that there was now some urgency because, if I understood correctly the appeal window closed on the coming weekend” is curious indeed.
The father is no novice to applications for an extension of time within which to file a Notice of Appeal and, as a consequence of my judgment delivered on 6 February 2014, he can have been in no doubt that he had 28 days from the date of the orders within which to appeal.
On 21 May 2014, the father attempted to file what he said was a Notice of Appeal against the 26 February 2014 orders. This assumed some prominence in this hearing and because the attempt to file a Notice of Appeal earlier than 11 June 2014 had the potential to work in the father’s favour, I asked the Appeal Registrar to produce the father’s documents. The father was content that the court receive these documents as exhibits but opposed their being provided to the mother and her counsel. After it was explained that he would not be permitted to rely on those documents in this hearing unless they were shown to those appearing for the mother and the mother, the father agreed copies could be provided to them.
While this issue was being discussed, an issue arose about whether in these documents the father made another attempt to obtain leave to appeal out of time in the interim parenting orders made by the primary judge on
25 July 2013. The father was very clear that he did not. As the proposed Notice of Appeal (Exhibit “B”) reveals, the father sought orders in the appeal which include:
1.That leave is granted to introduce into evidence the refereed (sic) research paper: “Social science and parenting plans for young children: A consensus report”, Warshak, R.A., Psychology, Public Police, and Law, Vol 20(2), Feb 2014, 46-67.
2.That leave is granted to introduce into evidence: “Parenting arrangements for the 0-4 year age group, Sexton R., Australian Family Lawyer v. 22 no. 2 Autumn 2012: 30-39”
3.That leave is granted to introduce into evidence the refereed (sic) research paper: “Nielsen, L. (2014). Woozles: Their Role in Custody Law Reform, Parenting Plans, and Family Court. Psychology, Public Policy, and Law. Advance online publication. leave is granted to appeal the dismissal of the Application for leave to appeal out of time, heard on 11 December 2013, dismissed on 6 February 2014.
5.That leave is granted to appeal the Orders issued 25 July 2013.
6.That leave is granted to appeal the Contravention hearing of 28 January 2014, dismissed on 26 February 2014.
7.That leave is granted to appeal the dismissal of the application for interim orders in the hearing of 17-19 March 2014 and 2 April 2014, dismissed on 18 April 2014.
Self-evidently, order 5 shows that the father was quite wrong when he said this application did not involve a second attempt to secure permission to file a Notice of Appeal against the 25 July 2013 orders.
Thus, his evidence that he wanted the Appeal Registrar to advise whether he could “… have several matters addressed in the single application” is accepted but it is not persuasive of a reasonable explanation for his failure to file a Notice of Appeal in relation to the contravention orders within time.
Although the father’s evidence concerning his dealings with the High Court of Australia are somewhat opaque, it would appear that in early June 2014 he sought advice from the Registrar of the High Court of Australia about whether he could lodge an appeal against the primary judge’s order directly to the High Court of Australia. Having been informed that he could not, five days later, the father filed this application.
The father’s enquiries of the Appeal Registrar of the Family Court and the Registrar of the High Court of Australia do not reveal a mistaken belief that there was a proper basis upon which he could prioritise other matters ahead of filing a Notice of Appeal to this court within time or a proper basis for thinking that he could appeal as of right to the High Court of Australia.
In my view, the steps undertaken by the father from 4 May 2014 to 6 June 2014 are suggestive of a strategy designed to avoid the consequences of his failure to comply with the time limits contained in the rules and formulate an appeal process unknown to the rules of either court. Those later steps do not assist the father’s case.
Orders sought in the appeal
In the event that he is given permission to file a Notice of Appeal out of time, the orders which the father would seek in the proposed appeal are:
1.That the dismissal on 26 February 2014, of the contravention proceedings, filed 11 November 2013 be overturned, or set aside, and a new contravention hearing be held by a Judge other than Judge Walker or Judge Sexton as an urgent matter.
2.That return of the Subpoena issued to Mr [H] on 16 January 2014 be listed for a further hearing.
3.That the Applicant be granted leave to issue up to 5 additional subpoena’s (sic), related to this matter, from this date.
4.That permission be granted to the applicant to show all transcripts, documents, exhibits, affidavits and submissions made in all proceedings in this matter to:
a)Any Federal and State members of parliament and their staff as the members see fit
b)The Legal Services Commissioner, and the Commissioner’s staff
c)Members of the media
5.In case of a public description of this case the parties are to be referred to as they have been in the Appeal Court reasons, delivered 6 February 2014. Namely, the applicant is to be referred to as Mr Valdez and the respondent is to be referred to as Ms Frazier. [The child] is to be referred to as ‘their child’. All other factual details may be reported as they are found in the transcripts and other documents. Other identities should not be used, instead referred to in terms of their relationship to the Applicant and Respondent. For example, Mr Valdez’s neighbour.
It is not accepted that orders 2-5 inclusive are orders that could be made on this proposed appeal.
The proposed grounds of appeal
The proposed grounds are set out below:
Made a finding of fact or facts on an important issue which could not be supported by the evidence.
1.At [31] Judge Walker concludes that: “… the court cannot be satisfied that the email was brought to the mother’s attention and that she was therefore aware on or after 23 September 2013 that the father sought an alternative arrangement to allow [the child] to spend time with him on 26 September 2013”.
This ignores the fact that the father had subpoenaed the Respondent’s previous lawyers to provide the correspondence in question and that subpoena was still outstanding.
Did not apply a relevant aspect of the law
2.At [23] Judge Walker made a finding that the Applicant “has not established a prima facie case that the mother contravened orders 7(a) and 8 of the Orders of 25 July 2013 on 19 September 2013 in that she intentionally failed to comply with the orders”
This ignores the fact that the Act provides in S70NAC that “A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order – he or she has: ….. (ii) made no reasonable attempt to comply with the order” By refusing permission for the Applicant to make an alternative arrangement – an arrangement that involved no effort or inconvenience on the part of the Respondent – the Respondent had “made no reasonable attempt to comply with the orders”.
3.At [25] Judge Walker made a finding that the Applicant: “has not established a prima facie case that the mother contravened orders 7(a) and 8 of the Orders of 25 July 2013 on 20 September 2013 in that she intentionally failed to comply with the orders”
This ignores the fact that the Act provides in S70NAC that “A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) Where the person is bound by the order – he or she has: ….. (ii) made no reasonable attempt to comply with the order” By refusing permission for the Applicant to make an alternative arrangement – an arrangement that involved no effort or inconvenience on the part of the Respondent – the Respondent had “made no reasonable attempt to comply with the orders”.
4.At [31] Judge Walker concludes that: “… the court cannot be satisfied that the email was brought to the mother’s attention and that she was therefore aware on or after 23 September 2013 that the father sought an alternative arrangement to allow [the child] to spend time with him on 26 September 2013”.
This ignores that fact that Judge Walker had enquired in the hearing “So you want me to rely on a subpoena that was issued with a return date on it, do you?” and I had responded “I would like that, your Honour”.
This ignores that fact that I had, (as instructed by the Court enquiries line, counter staff, their manager and two lawyers) requested that the matter of Mr [H’s] response to the Subpoena be listed for a further hearing.
5.The Contravention hearing was dismissed by Judge Walker:
a)ignoring the fact that the [mother] refused reasonable alternatives
b)introducing a requirement the Act does not provide for – that I have a (sic) acceptable reason,
c)ignoring my request to have the subpoena I had issued listed for a hearing,
d)handing down judgment in response to my request that the Subpoena I had issued be listed for further hearing.
6.In the contravention hearing, Judge Walker finds that “there was no evidence placed before the court as to why the father could not have collected [the child] from the day care centre rather than the mother’s home”. There is no provision in Section 70NAC for it to be a consideration, when determining if a contravention has taken place, whether the party who is claiming the order’s contravention, has a reason that the court finds convincing or acceptable.
Substantial injustice to the child
7.The actions of the Respondent and Judge Walker have meant that [the child] has been forced to undergo extremely distressing events. The respondent has repeatedly forced prolonged separations between [the child] and his father. Once (sic) example of such a separation is the refusal of the Respondent to make a reasonable attempt to comply with the orders – the full extent of the effort required by that attempt would simply involve granting permission for [the child] to be collected from day care.
In respect to the contravention hearing, [the mother] (in the words of the Section 70NAC) “(a) (ii) made no reasonable attempt to comply with the order”, by:
a)refusing my relatives offer to collect [the child]
b)refused my offer to collect [the child] from [the mother’s] house in the morning.
I submit that this refusal was encouraged, if not inspired, by Judge Walker’s explicit refusal (on 25/72013 and again on 3/9/2013) to allow [the child] to spend any holiday time with his father. This refusal had not basis in any fact or evidence.
(As per original)
The primary judge’s reasons
Before the merits of the proposed appeal are considered, it is useful to refer to her Honour’s findings.
In relation to 19 September 2013, her Honour found that the mother did not agree that someone other than the father could collect the child from preschool. In response to the mother’s position, her Honour found, at [13], that the father informed the mother:
I will not be able to collect [the child] on the days dicussed (sic). I hope you can make arrangements to collect him.
and, by follow up email:
Please confirm that you will be collecting [the child] on the days I have leave. Tomorrow, Friday and next Thursday and Friday.
The primary judge found that the gravamen of the father’s texts and emails sent in relation to 19 September 2013 was:
20.… that he would not be able to collect [the child] on the days discussed and he said he hoped the mother could collect him and in the later email asked the mother to confirm that she would be collecting [the child]. There was no indication that the father was suggesting the alternative that he would come and collect [the child] from the mother’s home.
The father did not attempt to collect the child at the day care centre at the appointed time rather, as the primary judge found, “… he went to the mother’s residence just before 3.30 pm …” and that the mother “ … did not bring [the child] …” [23]. In relation to this alleged contravention, her Honour’s findings are succinctly stated as follows:
21.The mother’s case is that [the child] remained at the day care centre until she collected him at 5.15 pm and accordingly was available for collection there by the father in accordance with the orders.
22.It is difficult to see that this is not the case and the court finds that the father has not established a prima facie case that the mother contravened Orders 7(a) and 8 of the Orders of 25 July 2013 on 19 September 2013 in that she intentionally failed to comply with the orders.
A similar situation was found to have occurred on 20 September 2013. Namely, that the child was at child care and available to be collected by the father at the appointed time. The father did not collect the child from the day care centre and instead waited at the mother’s residence from just before 3.30 pm until 6.00 pm. The mother collected the child from day care at 5.00 pm and it would seem, that having taken a minimum of 45 minutes to return home, she arrived after the father had left. Again, her Honour was satisfied the child was available for collection by the father, as a consequence of which, he did not establish a prima facie case.
In relation to the third count, the hearing proceeded on the mistaken basis that the orders entitled the father to nominate whether he would collect the child from day care or the mother’s home. The proper interpretation of orders 7(a) and 8 is that on the days the child is at day care, the father is to collect the child from the day care centre and if he is not at day care, from the mother’s home. It is the location of the child and not the father’s nomination which determines the collection point.
In any event, on this day, the child was again at day care. The father did not attempt to collect him at day care and, instead, waited at the mother’s home. It would seem that the focus of the evidence for this alleged breach was on an email dated 23 September 2013 which the father said he sent to the mother’s former solicitor. By this email, the primary judge found the father sought “…an alternative arrangement for the collection of [the child] at the mother’s home rather than the day care centre …” [27].
The mother’s solicitor did not respond to the father’s email and her Honour was not satisfied that the mother was made aware that the father sought an alternate arrangement for collection of the child on 26 September 2013.
So as to establish that the mother’s former solicitor received his email, the father issued a subpoena to the solicitor’s firm for production of the email. The subpoena was returnable on the hearing date but no documents were produced. The mother had by then changed solicitors and reference was made by
her Honour to an affidavit by an employee of the mother’s present solicitors concerning her inspection of the former solicitor’s file. The employee deposed that the file did not contain the father’s email nor was there reference to it. The father did not cross-examine the employee and her evidence was accepted.In cross-examination, the mother denied being made aware of the father’s email. The effect of the mother’s evidence and the unchallenged evidence from the employee was that the primary judge said she “…cannot be satisfied that the email was brought to the mother’s attention and that she was therefore aware on or after 23 September 2013 that the father sought an alternative arrangement to allow [the child] to spend time with him on 26 September 2013” [30]. Thus, with the child available to be collected at the appointed time and the father not having attempted to do so, the primary judge was not satisfied the mother intentionally failed to comply with the orders and this count was also dismissed.
The father’s application to re-open
The father filed an application on 8 July 2014 to reopen the case, in order to adduce affidavit evidence filed that same day. Stated broadly, the evidence the father would seek to introduce concerns the subpoena served on the mother’s former solicitor for production of the father’s email dated 23 September 2013 and associated documents. As was mentioned earlier, an important aspect of the proposed appeal concerns her Honour’s finding that she could not be satisfied the father’s email was brought to the mother’s attention. As I understood the father’s submission, this evidence would potentially be relevant to the matters he raises in proposed grounds 4 and 5.
As well as providing copies of the subpoena and email exchanges between himself and the mother’s former solicitor, the father provided what he says is “a true copy of the transcript of 19 November 2013” and an email he forwarded to her Honour’s associate on 13 February 2014. As to the transcript, it is not an authorised transcript and on that basis alone would not be admitted. However, and more relevantly, the contravention application was heard by her Honour on 28 January 2014 and not 19 November 2013. In the event that what the purported transcript is in relation to the hearing on 27 January 2014, even if it was admitted as a true record of the relevant hearing it would not strengthen the father’s putative appeal.
The father’s transcript details submissions he made concerning the subpoena to the mother’s former solicitor and culminates with her Honour’s question clarifying that he wished to rely on the subpoena with a return date on it. The father said he did and it became an exhibit. What the father’s transcript does not demonstrate is an application by him for an adjournment so as to pursue the failure of the mother’s former solicitor to produce documents in answer to the subpoena.
This matter is referred to in the father’s email to her Honour’s associate dated 13 February 2014. In that email, the father asks that “[t]his matter [the subpoena] be listed for hearing at a date that allows for the documents to be produced well before the last date to file affidavits for the final hearing which I understand is 4.00pm Monday 3 March 2014”. As I understood the father’s submission, it is to the effect that in response to this email, her Honour should have listed the subpoena for further hearing and not delivered her reasons for judgment or made orders on the contravention application.
The hearing of the contravention application having been completed and
her Honour’s judgment reserved, if the father sought to take steps to reopen his case, he needed to be much clearer about wanting to do so than he was in his 13 February 2014 email. In my view, the proper reading of that email is that it contains a request concerned with the forthcoming final hearing. There is nothing in it which would indicate that the father sought to reopen the contravention hearing.
When the father appeared on this application, he was asked to address the following concepts:
· the further evidence is so material that the interests of justice require its admission;
· the further evidence, if accepted, would most probably affect the result of the case;
· the further evidence could not by reasonable diligence have been discovered earlier; and
· no prejudice would ensue to the other party by reason of the late admission of the further evidence (Reid v Brett [2005] VSC 18). See also Gelley & Gelley (1992) FLC 92-290.
It is the father’s contention that this evidence reinforces the merits of his proposed appeal and he says the fact that the mother might be prejudiced by its late admission is irrelevant. Neither submission is persuasive.
In relation to the first matter, as I said earlier, the proper interpretation of orders 7(a) and 8 is that on the days the child is at day care, the father is to collect the child from the day care centre. I am unable to see that even if it was established the mother was aware of the father’s email dated
23 September 2013, her failure to agree that she make arrangements for the child to be available to the father at her home instead of the day care centre, would be relevant to count 3. The potential for prejudice to the mother is relevant and would inevitably involve a further appearance with consequential costs and the stress of ongoing litigation.
I am not satisfied that it is in the interests of justice to admit this further material and the father’s application will be dismissed.
Conclusion
In relation to proposed grounds 1 and 4, the father agreed that he did not apply for an adjournment of the hearing so as to pursue production of documents from the mother’s former solicitor.
The grounds as drafted also reveal the father’s misunderstanding that it is for him to choose from the two places referred to in the orders which one on any given occasion is the changeover point. In short, it is not accepted, that these grounds have the potential to establish error by the primary judge.
Nor would the remaining grounds. The facts as determined by her Honour were clearly available and nothing to which the father makes reference in grounds 2, 3, 5 and 6 are indicative of error by the primary judge.
It follows that I am not satisfied that to refuse the father leave may visit an injustice on him or the child.
Costs
At the conclusion of the hearing, I invited the parties to address any issues in relation to costs, it being my desire to try and avoid further costs being incurred and maximise the number of issues that could be dealt with simultaneously.
In the event the father’s application was unsuccessful, the mother sought an order that he pays her indemnity costs. In the alternative, that he pays her costs calculated on a party/party basis.
The father opposed the mother’s application and said an order for costs against him would be contrary to the parties’ agreement there would be no claim against each other’s property. The mother’s costs application is not an application for property orders albeit, if she is successful, the father may need to realise assets in order to satisfy any costs order.
In an earlier unsuccessful application by the mother that the father pays her indemnity costs, I set out the relevant law (See Frazier & Valdez (Costs) [2014] FamCAFC 71).
Invited to address what it was about the father’s case which took it into that rare category of case where an order for indemnity costs might be appropriate, counsel for the mother said the father presented his application with a wilful disregard for the known facts. It was submitted that he ought to have known his proposed appeal was unmeritorious and that on the material presented, he would not secure an extension of time within which to appeal.
It is not accepted that the evidence established the father wilfully disregarded the known facts. His application is better described as being no more than the presentation of an application in which he has been wholly unsuccessful. That he has been wholly unsuccessful establishes circumstances which justify an order for costs, but not an order for indemnity costs.
The most recent evidence I have concerning the parties’ financial circumstances (s 117(2A)(a) of the Family Law Act 1975 (Cth)) is dealt with at [20]-[22] of my reasons for judgment in the costs judgment referred to earlier. Those findings are incorporated into these reasons in relation to which it is accepted the father would need to borrow in order to satisfy any order for costs:
20.The mother filed a financial statement on 4 December 2013 in which she disclosed a weekly salary of $692. The mother receives $266 per week child support, benefits of $166 per week and $205 per week interest. She had $335,000 in savings, superannuation worth $58,000 and otherwise assets of little value. However, since then, from her savings the mother has paid legal costs as a consequence of which she now has about $250,000 cash in bank. She carries little debt.
21.The father filed a financial statement on 18 December 2013. He discloses a total average weekly income of $2,700 and assets worth $58,033. He has superannuation worth $181,953.51 plus liabilities of approximately $35,000. However, he does not have legal representation and as a contractor who is paid by the hour, he says that he has “… lost significant sums in wages foregone during the proceedings and in preparing for them …” (written submissions, filed 7 April 2014). How this affects his evidence concerning his average weekly income is not explained. Doing the best that I can with the father’s evidence, I am satisfied that he usually earns $2,700 per week although as a consequence of the time he devotes to these proceedings, there are periods where he earns less.
22.Although it is accepted that the father would need to borrow the $16,585 sought by the mother, this would appear to be within his capacity. Nonetheless, the application of the subsection is moot.
There are no other matters which, in my view, weigh against an order for costs. On balance, it is proper that the mother have her costs of this application on a party/party basis.
Before the father filed his application to reopen, the mother’s counsel advised that her party/party costs were likely to be in the vicinity of $2,500. Although the mother was excused from appearing on the application to reopen, it is nonetheless likely by virtue of it she has incurred further costs. As a consequence, it would not be appropriate to set the amount which the father should pay and the quantum will be set by agreement or assessment.
I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 18 August 2014.
Associate:
Date: 18 August 2014
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