Voet & Rummage
[2023] FedCFamC1A 129
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Voet & Rummage [2023] FedCFamC1A 129
Appeal from: Orders dated 1 February 2023 Appeal number: NAA 201 of 2023 File number: PTW 8299 of 2022 Judgment of: AUSTIN J Date of judgment: 9 August 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Application to extend time to appeal from interim parenting orders – Where the time for filing an appeal from the orders lapsed months before – Where the father complains the magistrate was biased – Where no disqualification application was made to the magistrate at the hearing – Where the father alleges deprivation of procedural fairness – Where the father was legally represented at the hearing – Where no evidence upon which the father wanted to rely at the hearing was rejected – Where there was no objection taken to any evidence adduced by the mother at the hearing – Where the father is bound by the way in which the case was conducted by his lawyers – Where the father did not identify mistaken findings – Where the findings made by the magistrate were apparently uncontentious – Where the father’s complaint that not all evidence was properly considered is mere speculation – Where the father’s complaint of inadequate reasons seems specious – Where the proposed grounds of appeal lack merit – Where the father’s explanation for his extensive delay is inadequate – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 29 Date of hearing: 9 August 2023 Place: Sydney (via Microsoft Teams) The Applicant: Litigant in person Solicitor for the Respondent: Bannerman Solicitors ORDERS
NAA 201 of 2023
PTW 8299 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR VOET
Applicant
AND: MS RUMMAGE
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
9 August 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 31 Jul 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Voet & Rummage has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Before the Court for determination is an application to extend time to appeal from the interim parenting orders made on 1 February 2023 by a magistrate of the Magistrates Court of Western Australia.
For the reasons which follow, the application is dismissed.
Short history
The parties’ only child was born in 2019 and is now four years of age.
The parties lived together in NSW from October 2016. The father returned to live in Western Australia in December 2021, expecting the family would thereafter settle in that State. The mother and child accompanied him but returned to NSW in January 2022, then moved back to Western Australia in July 2022. The parties’ marriage broke down in October 2022.
Proceedings were commenced by the father against the mother under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) almost immediately thereafter, to which the mother responded.
Some interim orders were initially made in October 2022 and November 2022, but the proceedings were later listed for more comprehensive interim hearing before the magistrate. On 1 February 2023, the magistrate pronounced a suite of interim orders – both substantive and procedural – for which ex tempore reasons were delivered.
In summary, the orders provided for:
(a)the child to live with the mother (Order 3);
(b)the mother being at liberty to relocate the child’s place of residence from Western Australia to Sydney, NSW as and from 4 February 2023 (Order 4);
(c)the child to spend time with the father in both Western Australia and NSW (Orders 5, 7 and 8)
(d)the child to communicate frequently with the father (Order 9);
(e)the appointment of a single expert witness (Orders 10–21); and
(f)the inclusion of the proceedings within the trial list for future allocation of trial dates (Orders 32 and 33)
The time for filing an appeal from the orders lapsed on 1 March 2023. No appeal was filed within time.
Nearly five months later, on 31 July 2023, the father filed an Application in an Appeal seeking leave to bring an appeal out of time. The application is supported by the father’s affidavit, also filed on 31 July 2023, which annexes a draft Notice of Appeal.
The draft Notice of Appeal reveals the father’s proposed challenge is only to a selection of the orders (being Orders 3, 4, 7, 8, 9, 10, 32 and 33).
Legal principles
The legal principles governing the determination of an application to extend time within which to appeal were stated as follows in Whitmore & Whitmore [2022] FedCFamC1A 75:
17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
Those principles are applicable here.
Disposition
Three aspects of the evidence militate against the grant of leave to extend time for the father to bring an appeal from the orders made on 1 February 2023: the apparent lack of merit evident in the proposed grounds of appeal; the considerable delay; and the lack of adequate explanation for the delay.
The proposed appeal from the procedural orders (Orders 32 and 33) is pointless, even if permissible. The father was bound to agree. Such orders only signify the proceedings’ readiness for allocation of trial dates. Similarly, the proposed appeal from the procedural order appointing a single expert witness (Order 10) is futile, which the father was also impelled to concede.
In reality, the appeal is intended to challenge the orders which provide for the child to live with the mother in Sydney and for the child to spend time and communicate with the father (Orders 3, 4, 7, 8 and 9). The draft Notice of Appeal reveals an intention to challenge such orders on these grounds:
(a)the magistrate was biased (Ground 4);
(b)the father was denied procedural fairness (Grounds 2 and 5);
(c)some findings made by the magistrate were not supported by the evidence (Ground 3);
(d)the magistrate did not “properly consider” all relevant evidence (Ground 6)
(e)the magistrate gave inadequate reasons (Ground 1);
(f)the magistrate “abused their discretion” (Ground 7); and
(g)the magistrate made the “wrong decision” (Ground 8).
None of the grounds was illuminated by particulars, so it was necessary to invite submissions from the father to elaborate the nature of his complaints.
In respect of alleged bias (Ground 4), the father’s misconception that an adverse result can of itself demonstrate bias must be corrected. In any event, the father was legally represented at the hearing before the magistrate and his lawyers did not make any disqualification application to the magistrate during the hearing on the premise of either actual or apprehended bias. Even if it is generously assumed that the grounds for such an application then existed, the application was waived (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588). No retrospective complaint of bias should be entertained on appeal.
In respect of the alleged deprivation of procedural fairness (Grounds 2 and 5), similarly, the father’s lawyers made no complaint of such irregularity to the magistrate. The father terminated his lawyers’ retainer after the reasons for judgment were delivered, following which the magistrate allowed the father to address the court personally. At that point he alleged he had not been given “the opportunity to present [his] information in an appropriate manner”, but that proposition must be rejected. The magistrate correctly recorded the applications and multiple affidavits upon which he relied when still represented by his lawyers. No evidence upon which the father wanted to rely was rejected. Nor, apparently, was any objection taken to any evidence adduced by the mother but, even if there had been an objection, the evidentiary decision to receive the evidence after hearing submissions from the parties would not be a denial of procedural fairness.
Any complaint the father may have against his lawyers is not a complaint he can transpose to the magistrate. He is bound by the way in which the case was conducted for him by his lawyers (Smits v Roach (2006) 227 CLR 423 at [46]-[47]). The magistrate correctly said this to the father:
HER HONOUR: … I don’t want you to give me any more information about the troubles that you’ve had with your legal practitioner. That’s a matter for you and them. …
(Transcript 1 February 2023, p.28 lines 28–31)
In respect of the complaint of mistaken findings (Ground 3), fatally, the father did not identify mistaken findings – only aspects of the contested evidence adduced by the parties and his belief about the true situation. The magistrate expressly said at several points during the reasons that findings to resolve factual conflicts were all but precluded by the parties’ evidence being untested by cross-examination. As an example, the magistrate said:
HER HONOUR: … The decision I am asked to make is only on an interim basis. The court must be acutely aware of the limitations inherent in the abridged process, including where there are disputes of fact that cannot be resolved at any early stage in the proceedings.
(Transcript 1 February 2023, p. 11 lines 25–30)
The few findings actually made by the magistrate, either expressly or inferentially, were apparently uncontentious. They included: chronological facts about the parties’ relationship and the course of the litigation; the child derives benefit from the meaningful relationships he has with both parties; the child is primarily attached to the mother; the child is not at any risk of harm in the care of either party; the child has a close relationship with the maternal grandparents; the strength of the child’s relationships with members of the paternal family was unclear; the mother wanted to return and live with the child in NSW; and the father has the capacity to spend time with the child in both NSW and Western Australia. The father said his evidence about the latter finding was “taken out of context”, but it must follow from the manner in which the finding is expressed and the father’s submission about context that the finding is generally consistent with an admission he made.
The complaint that not all evidence was properly considered (Ground 6) is mere speculation on the father’s part. Other than by discussion of his financial position, he did not articulate how the oral reasons delivered by the magistrate betrayed her Honour’s oversight of some material evidence. However, in respect of the father’s financial position, the orders require the mother to ensure the child spends time with him in Western Australia as frequently as he must travel to NSW to spend time with the child in that State.
The complaint of inadequate reasons (Ground 1) seems specious, given that the senior counsel appearing for the father said this to the magistrate once the ex tempore reasons had been delivered and before his retainer was terminated:
COUNSEL FOR THE FATHER: … thank you, your Honour, for the comprehensive reasons. …
(Transcript 1 February 2023, p.23 lines 31–32)
The dual complaints that the decision was plainly wrong and amounted to a miscarriage of discretion (Grounds 7 and 8) have no reasonable prospect of success. The father sought orders for the child to live with the parties for equal time in Western Australia, whereas the mother sought orders for the child to live with her in NSW and for him to spend time with the father in both NSW and Western Australia. The result, albeit favouring the mother, fell entirely within the ambit of the dispute constructed by the parties. Although the father considers the result to be adverse, it is not so incongruent as to be inexplicable other than by the imputation of some unidentified appealable error.
So analysed, the appeal lacks any reasonable prospect of success.
On the ancillary issue of delay, the judgment was pronounced on 1 February 2023. The father tried to promptly file an appeal the very next day, but it was rejected for procedural irregularity. The principal registrar advised the father by way of letter dated 2 February 2023 how the appeal should be prepared and filed.
Thereafter, the father consulted numerous lawyers for help but, for a variety of reasons, none gave him the help he required. By his own admission, his consultation with multiple lawyers continued for several months between February and July 2023 without satisfactory resolution, though he understood he lost the right of appeal upon expiration of the limitation period on 1 March 2023. In the meantime, the mother and child have relocated their residence to Sydney, NSW. She would now incur considerable prejudice in having to meet an appeal.
The father’s explanation for his extensive delay is inadequate.
The application to extend time to appeal must be dismissed.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 10 August 2023
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