Whitby and Zeller
[2014] FamCAFC 199
•25 September 2014
FAMILY COURT OF AUSTRALIA
| WHITBY & ZELLER | [2014] FamCAFC 199 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought to expedite her appeal – Where the appeal related to interim parenting orders that provided the father with supervised time with the child – Where the respondent had not seen the child in a number of years – Where the gravity of the subject matter is persuasive of expedition – Appeal expedited – Where the appellant sought an extension of time to appeal against an order for the appointment of an Independent Children’s Lawyer – Where the appointment was made in chambers and without notice –– Where the nature of the proceedings falls within a number of categories outlined in Re K (1994) FLC 92-461 – Where it was appropriate to appoint an ICL – Application for an extension of time to file a notice of appeal dismissed – Whether a costs order should be made against the appellant – Where the appellant was wholly unsuccessful with one of her applications and chose to proceed having been informed that her main contention was unmeritorious – Costs ordered. |
| Family Law Act 1975 (Cth): s 68L, 117 Family Law Rules 2004 (Cth): rr 22.02, 22.03, 22.12 |
| Gallo v Dawson (1990) 93 ALR 479 Re K (1994) FLC 92-461 |
| APPLICANT: | Ms Whitby |
| RESPONDENT: | Mr Zeller |
| INDEPENDENT CHILDREN’S LAWYER: | Adams Partners Lawyers |
| FILE NUMBER: | SYC | 2228 | of | 2011 |
| APPEAL NUMBERS: | EA EA | 119 132 | of of | 2014 2014 |
| DATE DELIVERED: | 25 September 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 25 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 22 July 2014; 12 September 2014 |
| LOWER COURT MNC: | [2014] FCCA 2103 |
REPRESENTATION
| FOR THE APPLICANT: | Ms Whitby in person with assistance of interpreter |
| SOLICITOR FOR THE RESPONDENT: | Rafton Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adams Partners Lawyers |
Orders
The application in an appeal filed by the applicant on 28 August 2014 be dismissed.
The application in an appeal filed by the applicant on 16 September 2014 for expedition of appeal EA 132 of 2014 be granted.
That applicant pay the father’s costs incurred in relation to her application for an extension of time to file an appeal (EA 119/2014) in the amount of $300 to be paid within 14 days.
That the appplicant pay the Independent Children’s Lawyers costs incurred in relation to her application for an extension of time to file an appeal (EA 119/2014) in the amount of $140 to be paid within 14 days.
The parties to attend to the Appeals Registrar for directions in relation to the expedited appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitby & Zeller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 119 of 2014; EA 132 of 2014
File Number: SYC 2228 of 2011
| Ms Whitby |
Applicant
And
| Mr Zeller |
Respondent
REASONS FOR JUDGMENT
These reasons were delivered orally.
Before the court is an Application in an Appeal and supporting affidavit filed on 16 September 2014 by Ms Whitby (“the mother”) seeking that her Notice of Appeal filed the same day be expedited. The appeal (henceforth referred to as the “substantive appeal”) relates to interim parenting orders made by Judge Monahan on 12 September 2014 concerning the parties’ only child C (“the child”).
In addition, the mother filed an application in an appeal on 28 August 2014 for an extension of time to file a Notice of Appeal against an order made by Judge Monahan on 22 July 2014 for the appointment of an Independent Children’s Lawyer (“ICL”) pursuant to s 68L(2) of the Family Law Act 1975 (Cth) (“the Act”). This order is clearly an order in relation to a procedural or interlocutory order, and thus not only is leave required because an extension of time is sought, but also because it would be an appeal against an order of that type.
It can be gleaned from the mother’s affidavit filed the same day that her main opposition to the order for the appointment of an ICL relates to her concern that the ICL has asked her to contribute towards the ICL’s costs. It is common ground that the request for the payment of costs in advance is not done pursuant to the order, but is a condition of the grant of legal aid to the ICL imposed by Legal Aid NSW. Again, it is common ground that the mother is able to make an application to Legal Aid NSW to waive the requirement for a contribution to the costs of the ICL.
The Appeals Registrar spoke with the mother on 3 September 2014 and explained those matters to her. Notwithstanding this, the mother indicated today that even if she is successful in having her contribution to the ICL’s fees waived, she wishes to pursue an appeal against the order for the appointment of an ICL. In this regard, she takes issue with the steps taken by the ICL in the representation of her son and says the ICL has made certain proposals that are inconsistent with the child’s best interests.
At this stage, all that can be said about the submissions made by the mother is that the ICL has taken steps with which she disagrees. She has not established that any of the steps that he has taken are inconsistent with the child’s best interests. Even had she done so, that matter does not establish that leave should be given. It would be an issue to be raised in the court below or elsewhere about the manner in which the ICL has, in fact, carried out his role.
The mother complains that the order for the appointment of an ICL was made in reliance upon a Child and Parents’ Issues Assessment which she says is an unreliable document. How and in what way is not apparent. Again, for reasons which will shortly become apparent, even if that was so, the mother has failed to establish a basis upon which it could be said there is an error of law in the primary judge making the order for an ICL.
Background Facts
Before I turn to formally consider the arguments advanced by the mother, it is useful to address some of the background facts which, as best I can discern at this stage, appear to be uncontroversial.
The parties have a lengthy history before both the Federal Circuit Court and the Family Court of Australia.
They met in the People’s Republic of China.
Mr Zeller (“the father”) came to Australia in 2001 and has lived in New South Wales ever since. The mother came to Australia in 2009.
The child was born in China in November 2008. He arrived in Australia at the same time as his mother.
The parties were married in New South Wales in September 2009.
It is not disputed that the mother and child lived with the father until March 2010. It is unclear where the mother and child resided between March and October 2010.
In October 2010, the mother returned to China with the child. The parties’ evidence differs quite significantly on the circumstances surrounding her departure. However, it does not appear to be disputed that the mother did not tell the father that she was returning to live in China or that she would be removing the child from Australia when she did. In any event, the mother and child lived in China between October 2010 and November 2013. Again, doing the best that I can with the material presented in this case, it would seem uncontroversial that during that period the child did not spend time with his father and that during that time the mother re-partnered. The child has come to know her partner as his father.
Proceedings were initiated by the father on 12 April 2011 in the Federal Circuit Court. He applied for orders that the child lives with the mother and spends time with him. Orders were made in the mother’s absence in July 2011 which relevantly restrained her and the child from departing the Commonwealth of Australia. I pause to observe that the child and mother were already outside Australia when that order was made.
However, the mother alone returned from China in April 2011 to finalise her divorce from the father. It appears that she was unaware that proceedings had already been commenced. The mother left the child in China with her mother, and on one of the occasions when the matter was before the court, she informed the court that she was pregnant to her new partner and wished to return to China to be with him.
On 25 August 2011, the Federal Circuit Court transferred the proceedings to the Family Court of Australia and it would appear that it was around this time that the mother returned to China.
The father’s application came before Dawe J for hearing in March 2012. It again appears to be common ground that at that time the mother’s whereabouts were not known. Her Honour dismissed the father’s application, in essence because without knowing where the mother or child were and because of allegations the mother had already raised about family violence, her Honour could not be satisfied that the orders proposed were in the child’s best interests.
At some point, and again I am not entirely clear when that was, the mother and the child returned to Australia to live. They were accompanied by the mother’s new partner and their baby daughter.
These proceedings were commenced by the father on 25 November 2013. He sought a number of parenting orders including an order that the child spend time with him.
As ordered, the parties attended a child dispute conference on 11 July 2014, following which a family consultant issued a memorandum which relevantly recommended the appointment of an ICL. The primary judge made such an order in chambers on 22 July 2014. The parties were not given the opportunity to address the court on whether an order for the appointment of an ICL should be made or the ramification of such an order. In some circumstances, that might be significant. This is not one of them.
The mother filed her application in an appeal seeking an extension of time to appeal against the order appointing the ICL on 28 August 2014.
The matter was last before Judge Monahan on 3 September 2014, on which occasion there was a hearing of the father’s interim application to spend time with the child. The hearing occurred with the participation of the ICL and the mother, who was unrepresented. The mother opposed the order for the child to spend time with the father, her point being, in essence, that because the child does not know that her partner is not his father, it would be premature to introduce the child to his father until the court had considered the matters she raises about the father’s ability to establish a meaningful relationship with their son, and whether the son would be safe with his father. Reference was made to her allegations of family violence.
The primary judge reserved his decision and published his reasons and made orders on 12 September 2014. Those orders provide that on an interim basis, the father will spend time with the child under supervision at a Contact Service one day each week. This dovetails with an order for the parties and child to commence family therapy; it would appear with the aim being to assist the child to understand the issue around his paternity and that he has a father who is interested in spending time with him and has been so interested for a long time.
The orders made by the primary judge are consistent with submissions by the ICL.
On 16 September 2014, the mother filed her Notice of Appeal (substantive appeal) against these interim parenting orders and sought that the appeal be expedited.
The Application to extend time to appeal
It is prudent to first deal with the application to extend time to appeal and for leave to appeal the orders appointing an ICL.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the rules”) deals with appeals.
Rule 22.02 provides that an appeal is to be commenced by filing a Notice of Appeal.
Rule 22.03 sets out the timeframe within which an appeal is to be filed: namely 28 days. In this case, the last day for filing a Notice of Appeal was
19 August 2014.
Provision is also made in r 22.02 for an application for leave to appeal in relation to which r 22.12 contains examples of procedural orders which may be made in respect of such applications.
The principles relating to applications for an extension of time to file an appeal are set out Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. Discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation, the consequences for the parties of the grant or refusal of leave and the explanation for the delay proffered by the applicant for leave.
In order to determine whether or not compliance with the times fixed by the rules would have the rules become instruments of injustice, it is necessary to consider the possible merits of the appeal. The point being, refusal of an application to extend time for an unmeritorious appeal would not work an injustice.
The reason for the delay is explained in the mother’s affidavit, filed
28 August 2014. Simply stated, she points out that the order was made in her absence and without notice to her. This is not contested.
The mother explains that she received a copy of the order sometime in
August 2014 and took steps promptly to file an appeal. She was, however, three days out of time, and her application was appropriately refused. Delay has been adequately explained.
More critical to my consideration of this application, however, is the nature of the order, that is, it is an interlocutory order and the merits of the proposed appeal itself.
The circumstances in which an order for an appointment of an ICL will be appropriate are well known. The Full Court in Re K (1994) FLC 92-461 set out the criteria to be applied in appointing a child representative for the children (ICL). At [80,773-80,776] the Full Court said appointments should normally be made where inter alia:
(i) Cases involve allegations of child abuse, whether physical, sexual or psychological.
(ii) Cases where there is an apparently intractable conflict between the parents.
(iii) Cases where the child is apparently alienated from one or both parents.
(iv) Where there are real issues of cultural or religious difference affecting the child.
…
And so on. Of course, the categories there listed are not closed with the overarching principle being to ensure that the appointment is made when the child’s best interests indicate that this is an appropriate step to take or there are other circumstances which dictate that step being taken.
The nature of the dispute between these parties falls within a number of the categories referred to in Re K. Reference need only be made to two categories, for example, cases where there is apparently intractable conflict between the parents, and where a child is alienated from a parent, to establish the point.
Although it was open to his Honour to determine that consideration of the appointment of an ICL should be dealt with in open court, the rules of the Federal Circuit Court enable him to make an order of this type in chambers. There is nothing to which the mother has taken me today which would impugn the correctness of his Honour’s decision to appoint an ICL.
Turning, then, to the nature of the order. This is an interlocutory order and it is again well known that the mother would have to persuade the court that leave should be given. There has been nothing presented today, nor that I can discern from the material upon which she has relied, that would indicate she is likely to be given leave to appeal the order for the appointment of an ICL. Her issues in relation to costs associated with the appointment can be dealt with in another place and are irrelevant to her application for leave.
As a consequence, the mother’s application for an extension of time within which to appeal the order for the appointment of an ICL will be dismissed.
Application to expedite substantive appeal
I turn now to consideration of the mother’s application for expedition of her appeal against the interim parenting orders. Neither the father nor the ICL opposes an order that that appeal, that is, appeal EA 132 of 2014 be expedited.
The most compelling argument advanced in relation to the application for expedition concerns the extent to which his Honour considered that an order for supervised time went to the heart of the substantive issue to be considered at the final hearing. As the mother correctly points out, once the child is introduced to his father as his father, there is no turning back in relation to the question of the child’s knowledge of who is his father and whether reintroduction of his father is in the child’s best interest. True it is that there is some reference to those issues in his Honour’s reasons for judgment, but the mother has outlined why it is she would argue those reasons fail to come to grips with the argument she made and, in the alternative, are, in fact, a failure in the reasoning process itself.
Unless the appeal is expedited and the application for a stay, which is listed on 9 October 2014, is successful, it is accepted that the mother’s appeal would, in effect, be rendered nugatory.
I am acutely conscious of the large number of appeals that are awaiting a hearing, and that other litigants might consider they should have priority over this more recently filed appeal. Nonetheless, the gravity of the subject matter in this case persuades me that an order for expedition is appropriate.
Costs applications
The father and ICL seek an order for costs against the mother in relation to her unsuccessful application for an extension of time within which to appeal the order for the appointment of an ICL. As was mentioned earlier, the application having been received by the Appeals Registry, contact was made with the mother and it was explained to her that the question of payment of expenses for the ICL could be taken up with the Legal Aid Commission NSW and that she should contemplate taking those steps rather than prosecuting her application. She chose to proceed, and in so doing advanced additional arguments, none of which had any merit.
An application for an order for costs is to be determined by reference to the provisions of s 117 of the Act. Here, the circumstances which justify an order for costs against the mother are that she has been wholly unsuccessful. The mother says, in opposition, that she has limited financial circumstances and that she and her partner have given their entire savings, about $20,000, to their son. Thus an order for costs would in fact be an order for costs against him.
There is no reason to doubt that she has transferred the funds into an account in her son’s name, but it is not accepted that an order for costs would in fact be an order against the son. It needs to be made clear that the fact of impecuniosity is no absolute barrier to an order for costs. It is but one of a multiplicity of factors which the court may consider. In my view, the same factors which amount to justifying circumstances also weigh in favour of the modest orders for costs sought by the legally aided father and the legally aided ICL. Quite simply, this is an application that should never have been brought.
I am mindful, when considering the amounts sought, that there was also an application for expedition. However, the time taken today has been overwhelmingly consumed by the application for an extension of time. The amounts sought are appropriate and will be ordered.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 25 September 2014.
Associate:
Date: 14 October 2014
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