Yelner and Yelner
[2012] FamCAFC 98
•10 July 2012
FAMILY COURT OF AUSTRALIA
| YELNER & YELNER | [2012] FamCAFC 98 |
| FAMILY LAW – APPEAL – Application to extend time to appeal – Where the six weeks delay was not insignificant – Where the delay was attributable to the legal representatives of the mother, not the mother herself – Where the proposed grounds of appeal raise serious issues, which if established may lead to the appeal being allowed – Where the prejudice to the father caused by the delay could be minimised by an order for costs – Application allowed and costs reserved. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Federal Magistrates Court Rules 2001 (Cth), rule 16.05 |
| Clivery & Conway [2007] FamCA 1435 Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Ms Yelner |
| RESPONDENT: | Ms Yelner |
| FILE NUMBER: | DNC | 159 | of | 2011 |
| APPEAL NUMBER: | NA | 46 | of | 2012 |
| DATE DELIVERED: | 10 July 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 10 July 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 March 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 259 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Lyons |
| SOLICITOR FOR THE APPELLANT: | Northern Territory Legal Aid Commission |
| SOLICITOR FOR THE RESPONDENT: | Withnalls Lawyers |
Orders
The time for the appellant mother to file a Notice of Appeal out of time against the orders of Federal Magistrate Turner made 22 March 2012 be extended to
17 July 2012.
The costs of the respondent father be reserved to the Full Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yelner & Yelner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 46 of 2012
File Number: DNC 159 of 2011
| Ms Yelner |
Appellant
And
| Mr Yelner |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed 31 May 2012, the mother seeks an extension of time in which to file a notice of appeal against orders made by Federal Magistrate Turner on 22 March 2012. Those orders concerned parenting arrangements for the parties’ son, born September 2006.
By her draft notice of appeal, the mother seeks to appeal only the orders which relate to her proposed relocation from Darwin to Cairns with the child, and the time the child is to spend with the father. The orders from which she appeals provide:
(5)That the child not be permitted to relocate from the Darwin area without the prior written approval of both parties.
(6)That the child live with the mother in Darwin.
(7)That the father is to spend time and communicate with the child as follows:-
(a)In each fortnight period:-
(i) in the first week from after school/day-care Friday until before school/day-care Tuesday; and
(ii) in the second week from after school/day-care Monday until before school/day-care Tuesday.
(b)By telephone each Saturday and Tuesday evening between 6.00pm to 6.30pm with:-
(i) The father to instigate the call;
(ii)The mother to ensure that the child is available to take the call;
(iii) The mother to provide the child with privacy to take the call, with the mother not to place the child on any loud speaker, or to listen in on any calls.
(c)If for any reason the mother cannot care for the child during the child’s time with the mother, then the mother must give first option of caring for the child to the father, and if the father is not available, then second option to the paternal grandparents. This order does not refer to the mother’s use of day-care, after school care or vacation care facilities when the child is in her care.
Background
The child was born in September 2006. The parties separated finally in December 2010. Since separation the child had been living with the mother and spending substantial time with the father. At the time of trial the child was spending five nights per fortnight with the father, following interim consent orders made in September 2011.
At the conclusion of the two day hearing on 8 March 2012, the parties agreed to consent orders on a range of issues. Those orders included provision for time spent during holidays and on special days, with arrangements based on the child living in North Queensland with the mother and alternatively with the child remaining living in Darwin. An order that the father be restrained from consuming alcohol while the child is in his care or 24 hours prior to him being in his care was also consented to, however it appears from the reasons for judgment that the mother’s concerns in this regard had been allayed.
The main issues remaining for the Federal Magistrate’s determination were first whether the mother should be permitted to relocate the child from Darwin to Cairns (and correspondingly what living and spending time arrangements should be made), and secondly what orders should be made as to parental responsibility.
The Federal Magistrate delivered orders and reasons for judgment on
22 March 2012. The orders were varied pursuant to Rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) to correct an omitted word in order 7(c) on
23 March 2012.
In accordance with Rule 22.03 of the Family Law Rules 2004 (Cth), the time in which the mother was to file a notice of appeal against the orders lapsed on
19 April 2012. Approximately six weeks later on 31 May 2012 the mother filed an application for an extension of time in which to file her notice of appeal. The father filed a response on 4 July 2012 and seeks that the mother’s application be dismissed.
As the prospects of success of an appeal are an essential element of the decision as to whether leave should be given to extend the time to appeal, an appreciation of the reasons for judgment is important.
Reasons for Judgment of the Federal Magistrate
In her reasons for judgment the Federal Magistrate adopted an issue by issue approach. Her Honour first outlined the issue for determination, identified the proposal of each party, and then made a decision about the issue with reference to findings based on the evidence before her.
The following paragraphs from the reasons relate to orders (5), (6) and (7) which the mother now seeks to appeal:
Should the mother be permitted to relocate with [the child] to Cairns?
14.The mother wants to relocate to Cairns to be nearer her family.
15.The father is opposed to the relocation.
16.I find having considered all of the evidence that it is in the best interests of [the child] to remain in Darwin for the following reasons:-
a)[The child] is described by the parents as shy and reserved who has difficulty in making and maintaining relationships. [The child] is also a child susceptible to changes. I find that a relocation to Cairns will cause significant disruption to the child and it would not be in the best interests of the child as:-
i) [The child] will be leaving the only place he has known as home, having been born and raised in Darwin;
ii)[The child] will be leaving the comfort and surrounds of his family unit including his extended paternal family;
iii)[The child] will be leaving his school, where he is progressing well and his associated friendships which have developed over time;
iv)The move to Cairns will necessitate ongoing changes as it is the intention of the mother in the future to relocate from the maternal grandmother’s home which is located at [M] to Cairns, some one and a half hours away, which will result in a change of housing, yet another change in schooling and a change in friendships for the child.
b)It is not disputed by the mother that [the child] has a very close bond with the father. The family report writer notes at [36] of the February report “[The father] and [the child] enjoy a loving and close relationship” and at [52] of the August report that [the child] “appears to have a secure attachment to each of his parents”;
c)In addition to the close relationship, the father has also been actively involved in the child’s day to day activities including regularly attending at the child’s school;
d)There are matters where there is a clear distinction between the parents as to who is the primary carer and who is the secondary carer for a child;
e) I find that this matter does not fall within that category. Whilst it cannot be disputed that time wise the mother has had [the child] in her care for longer periods than the father, therefore making her technically the primary carer, we have a situation where the father has been very hands on with his parenting of [the child];
f) As recorded by the report writer at [34] of the February report “His mother has been his primary carer throughout most of his life, although it is acknowledged that his father has also been significantly involved in his care over time”;
g) [the child]’s views understandably have not been captured, given his age;
h)But what has been captured by the family report writer is that for [the child], who has had his father so actively involved in his life, at [62] of the August report that “It is possible that separation from his father…at this point in time might be experienced by [the child] as very difficult, and potentially impact upon his adjustment and development in the long term” and at [36] of the February report that “[the child] would find it difficult to be separated over such a distance from the father”;
i) I find that it is not in [the child]’s best interest to relocate where there will be significant distance between the father and the child, and where [the child] will miss out on the regular involvement of the father;
j)Similarly relocation for the child would result in his spending less time with the paternal grandparents, who are also closely involved in the child’s upbringing;
k)As stated by the report writer at [36] of the February report “[the child] has a positive relationship with his paternal grandparents and would be likely to miss them if he separated over time and distance from them”;
l)The father has a concern that the mother, if relocation of [the child] is permitted, would not promote or facilitate his relationship with [the child];
m)This concern is mirrored by the report writer at [36] of the February report “The willingness of the mother to promote [the child]’s relationship with his father over such a distance is untested, raising issues as to the viability of future contact arrangements”;
n) I find that the mother’s facilitation and promotion of the father’s relationship with [the child] would be compromised if relocation was to occur based on the following:-
i)The mother has a poor opinion of the father as an individual admitting that she does not like him. That is not an uncommon reaction of parties in this jurisdiction, and it’s not a matter on which there needs to be further comment. The mother at the other extreme finds little to fault the father on in his role as father to [the child], which is a refreshing change. But it is clear from the evidence that the mother’s two perceptions at times blur, resulting in her negative view taking precedence as illustrated by the following examples:-
·When the mother initially became ill, the mother relied on her neighbour to care for the child rather than contact the father;
·When asked in cross-examination what she would do if she couldn’t care for the child due to illness, the mother admitted that she would contact her family first rather than the father;
·When asked in cross-examination where the mother placed the father in the list of priority to [the child], it was a very reluctant mother, answering more out of what she thought the court wanted to hear, rather than what she believed, that the father was on the same level as the mother.
ii)It is clear from the mother’s demeanour and her evidence that she harbours an enormous amount of negative feeling towards the father. The mother has done little to address these feelings. Counselling has not been sought as the mother does not trust counsellors. The mother holds a strong belief that being allowed to relocate with [the child] will resolve all of these issues. This is a naïve approach, and with the stress of a move and the re-establishment in another state, the impending loss of a parent and the loss of support (albeit not acknowledged by the mother) from the father and his family in the care of [the child], the mother’s anxiety and distress is likely to increase. Couple this distress with the high level of resentment the mother feels towards the father then this is likely to play out in more negativity towards the father. This negativity, as [the child] grows older, is likely at its best impact on the mother in her parenting of [the child] and at its worse be transferred onto a child whom both parents describe as sensitive;
iii)Although the mother has completed a “Mum’s Place, Dad’s Place” course at Anglicare NT, the mother is unable to suggest any strategies to put in place to improve the communication level between the parties. The mother has by her own choice and admission refused to speak to the father for many months opting instead for communication through written mediums such as texting. Even then the mother has often misinterpreted or misrepresented the written responses by the father, always viewing the responses in a negative manner because of the father’s opposition to the mother’s relocation. An example is illustrated by the recent trip to Cairns. The mother complained to the report writer and gave evidence in court that the father had delayed her departure and unnecessarily placed conditions upon her when the evidence of the SMS exchange indicates the opposite in that the father was supportive and flexible in allowing the mother to travel with the child;
iv)The mother informed the report writer at [11] of the February family report when speaking of the father that she “queried his capacity to work with her in co-parenting [the child].” and described the father as “inconsistent and distrustful” and viewed him as “seeking to intrude into her life at times.” This was not borne out in the evidence. Whilst the father is not blameless in the communication struggle, it is the mother who has almost completely shut the father out and sees any communication, even legitimate, as being a personal affront to her. The father openly spoke of his frustration in dealing with the mother at [18] of the February report stating “she was not prepared to openly communicate with him in person and described her reluctance…. As ‘stupid and immature’.” The mother has lost her objectivity when communicating with the father, and as it is so deep-rooted, it is unlikely that a change in location is going to bring about a change in attitude by the mother when dealing with the father.
o)The mother is in poor health reporting to the report writer that her health has deteriorated since the initial interviews in August 2011 resulting in her ceasing employment early in 2012. The mother is very evasive as to her health issues with there being no independent evidence before the court as to the cause, the treatment or the prognosis, other than the mother stating that it is severe gastritis, that it causes her continual tiredness and pain and that further tests are required;
p) I find that the mother’s health issues are an issue that weigh heavily in the decision that the child not be allowed to relocate to Cairns. The reasons in support of that finding are:-
i)The mother gave evidence that her health issues are not affecting her parenting of [the child] and that the reason she gave up employment was to make sure that she had the time and energy to look after [the child]. I find it hard to accept that her pain and tiredness is not impacting. But even if I did accept it, I must look to the mother’s current parenting responsibilities which since at least September 2011, have seen the child staying five nights a fortnight with the father and the remaining nine nights with the mother. This in effect, albeit not equal, is a shared care arrangement which enables the mother to rest and recuperate when [the child] is not in her care. The mother will not have the same level of alone time period should relocation occur to Cairns;
ii)Further I do not accept that a move to Cairns to live with the maternal grandmother will provide the mother with assistance in the caring of [the child]. Without wishing to diminish good intentions the reality is that with the imminent passing of the step-father the maternal grandmother’s home will be in emotional turmoil and disarray and assistance in the support of [the child] is not going to be a priority;
iii)The mother is suffering a “heightened level of distress” ([6] February 2012 report) from having to live in Darwin and gave evidence that relocation to Cairns will alleviate this stress. The mother states that this stress is contributing to her illness. I cannot accept that moving from Darwin where the mother has the ongoing support for the care of [the child] from both the father and his family, to then live with the maternal grandmother and deal with the upcoming loss of a parent figure is not going to add to her stress, and indirectly impact on her health;
iv)The mother is not required to keep the father informed as to her health issues, although it would be prudent to do so if it is in any way impacting on her ability to care for [the child]. As the mother chooses to have no verbal communication and limited written communication with the father, I have a real concern that if her health issues continue to deteriorate and start to impact on her parenting, that the father will be the last to know about it if the mother and child are living interstate;
v)It is a concern that if the mother is permitted to relocate [the child] to Cairns and her health deteriorates making it difficult or impossible to care for the child, then the father will not be given the opportunity, not only because of distance, but because of mother’s attitude, to be involved with [the child];
vi)If the mother’s condition does not improve and relocation was to occur, then [the child] would be presented with yet another change in his life whether he returns to Darwin to live with the father, or lives with the maternal grandmother or other family members in the Cairns area.
q)The mother is not required to establish any compelling reasons as to why she wishes to relocate to Cairns. Nor should the court interfere in a party’s right to movement. The mother’s main reason for wishing to relocate is to be with her family which is understandable given that her step-father is dying and the maternal grandmother would benefit from the mother’s assistance and support during this very difficult time;
r)But ultimately a decision permitting a child to relocate with a party must be considered in light of what is in the best interest of the child and not merely a reflection of what is desired or needed by a parent;
s)I find, having considered and weighed up the reasons given by the mother in support of the relocation, that it is still in the best interest of [the child] to remain in Darwin because:-
i)Apart from physically getting to Cairns and living with the maternal grandmother, little thought or planning has been put into place by the mother for her and the child’s future living in Cairns;
ii)The mother in her evidence spoke of researching a school for [the child] that was a three hour return trip from her mother’s residence, with no evidence before the court as to the schooling in the local area;
iii)Apart from indicating that the mother would use the maternal grandmother’s doctor, the mother has made no plans for the management of her health issues even when the mother knows that further testing is required;
iv)Whilst I understand that the mother is not currently looking for employment, the mother has put no information before the court as to whether employment is available;
v)It is the intention of the mother once employed to move from the maternal grandparent’s residence and live in Cairns which is one and half hours away from [M]. There is nothing in the evidence as to what hours the mother intends to work, and what the arrangements will be for [the child] if her work hours are longer than his school hours when she moves to Cairns.
t)The second reason offered by the mother as to why relocation is necessary is that financially the mother will be in a better position if she moves to Cairns as the maternal grandmother will provide support including accommodation;
u)The mother is currently in a difficult situation having given up her employment earlier this year and on her evidence is living from her savings which have nearly run out;
v)The order for the child to remain in Darwin will place financial pressure on the mother, but I have taken into account the following in reaching this decision:-
i)The mother has a set of work skills which will enable her to obtain employment;
ii)The mother is not incapable of working but has chosen not to so as to care for [the child]. The mother can now apply with some certainty as to her availability for employment either part time or fulltime which will enable her to fund her stay in Darwin;
iii)The maternal grandmother confirmed that she will provide ongoing support for the mother if an order is made for the child to remain in Darwin. The type and extent of the maternal grandmother’s past support is captured at [32] of the February report where she informed the family report writer of staying with the mother for extended periods of time when her first child died and when [the child] was born, and how she has regular telephone contact with the mother and has financially assisted her in the past. Apart from the current situation with her terminally ill husband, there was nothing in the evidence to deflect from the maternal grandmother being able to provide the same level of support, and perhaps even more support to the mother in the future;
iv)The father is entering fulltime employment shortly with an anticipated income of $120,000 which will enable the mother to be paid substantially more child support than what she is currently receiving.
Conclusion
17.The mother will be devastated by the findings that [the child] is to remain in Darwin.
18.The report writer states at [35] of the February report that the mother will be so impacted by such a decision that her “parenting capacity would be diminished.” and at [31] “If it is a decision of the Court that [the child] remains living in Darwin….Such an outcome would be extremely difficult for [the mother] to accept and in the long term her capacity to parent [the child] would be likely to diminish if she does not have access to the support that can be provided by her family to Cairns. She is currently experiencing significant health problems; she is without a job; she is experiencing financial pressures; and she craves the support of her mother and family.”
19.I accept that the mother will be devastated by the court’s findings, but I do not accept that such a decision will impact on the mother’s capacity to parent [the child].
20.I find that the mother is not as fragile or vulnerable as she may at first appear.
21.I believe the mother when she informed the report writer at [63] of the August report that she would “make the best of the situation” if she had to remain in Darwin.
22.Further the mother has made it clear in her evidence that if the child was not permitted to relocate to Cairns, then neither will the mother.
23.This is a woman who has survived the devastating loss of her first born child, is currently battling health issues, has restructured her day to day commitments to care for [the child], and is actively involved in the support of the maternal grandmother during the step-grandfather’s illness.
24.Further this is a woman who has openly rejected offers of any assistance from the father’s extended family, would prefer to rely on neighbours and her family in respect to [the child] rather than contact the father, has minimised any form of meaningful communication with the father and is refusing any form of counselling to assist her either with her present issues or should relocation not be permitted.
25.The mother’s stubbornness and stoic sense of righteousness are, I find, strengths which will enable the mother to accept and work with the orders made for the child to remain in Darwin, and will enable the mother to continue to parent [the child] effectively.
26.Unfortunately these strengths are also the mother’s weaknesses as I do not have the confidence that if [the child] was permitted to relocate to Cairns that the mother would be willing to promote the child’s relationship with the father and the paternal grandparents, and more importantly would actively involve the father should the mother’s capacity to parent diminish due to her health.
27.I have no doubt that the mother will comply with court orders for the child to spend time with the father during holidays if relocation was to occur, but that alone would be the full extent of the mother’s participation with the father.
28.In this situation where there is a young sensitive child who has the enjoyed the active and constant involvement of the father and the paternal grandparents, an ill and non communicative mother who thinks poorly of the father and uncertainty as to what life in Cairns holds for both the mother and the child, then I find that compliance with orders would not be enough.
29.Relocation matters must be decided ultimately on what is in the best interest of the child.
30.This is a situation where overwhelmingly the best outcome for [the child] is to remain in Darwin.
If relocation is permitted, what time will the father spend with [the child] in Cairns?
31.As a finding has been made that [the child] not be permitted to relocate to Cairns, this is an issue that no longer requires consideration.
If relocation is not permitted, what will be the arrangements for the father to spend time with [the child] in Darwin?
32.The parties in the consent orders agreed on a number of orders as to the time the father is to spend with [the child] if the child was to remain in Darwin.
33.The remaining issues requiring determination are:-
a)The extent of the father’s time with [the child] each fortnight;
b)The extent and nature of the telephone communication between the father and [the child].
Extent of father’s time with [the child] each fortnight
34.The mother is offering the same spend time with periods as agreed to in the interim consent orders in September 2011 namely that the father spend time with [the child] each alternate weekend from after school/day-care Friday to before school/day-care on Wednesday which equates to 5 nights out of 14 nights.
35.The father originally was seeking a week about arrangement but at the conclusion of the hearing is now seeking orders to spend time with the child from after school/day-care Friday to before school/day-care on the Tuesday in the first week and from Sunday afternoon to Tuesday afternoon in the second week which equates to 6 nights out of 14 nights.
Conclusion as to fortnightly time
36.There is no evidence to support the father’s proposal to increase time from five nights, which has on all accounts been working well, to six nights a fortnight.
37.I understand that the father’s concern is not spending time with [the child] during the second week of the fortnight period.
38.However what must be balanced against the father’s proposal is the right of the child to have an uninterrupted weekend with the mother.
39.I therefore find that it would be in the best interest of [the child] that in the first week of the fortnightly period the father spend time with the child from the Friday afternoon to the Tuesday morning, and in the second week from Monday afternoon to Tuesday morning.
40.These spend time with periods will enable the father to have his five nights a fortnight with [the child] spread over the two weeks, and further will enable the mother to have a complete uninterrupted weekend with the child.
The extent and nature of the telephone communication between the father and [the child]
41.The issue of telephone communication itself is not in dispute with the parties reaching an agreement on an interim basis in September 2011 for the father to speak to the child each Tuesday and Saturday night.
42.The mother wants that arrangement to remain in place.
43.The father wants a more frequent arrangement.
44.Further the father wants reassurance from the mother that she will not listen in on the calls or place the child on loud speaker.
Conclusion
45.I find that as the child is use to the routine of Tuesday and Saturday calls that this regime should continue.
46.However included in the orders is provision for the mother to facilitate additional calls as reasonably requested by the child.
47.I further find that there is no basis for the mother placing the child on loud speaker or listening in on the calls, and orders have been made accordingly to ensure that the child has privacy when speaking to the father.
One other issue
48.Although not canvassed by either party, I am concerned that if the mother is for whatever reason unable to care for the child, the mother may opt for external carers and not the father or the paternal grandparents.
49.I have therefore made an order that the mother must give the father the first option and the paternal grandparents the second option in the event that the mother cannot care for [the child].
Is the time the father is to spend with [the child] substantial and significant?
50.I find that as the time the father is to spend with [the child] includes overnight, weekends, holidays and special days, then in accordance with section 65DAA(3) the time is substantial and significant.
Extension of Time Principles
In Clivery & Conway [2007] FamCA 1435 the well known principles applicable to extension of time applications as set out by the High Court in Gallo v Dawson (1990) 93 ALR 479 were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Explanation for the Delay
As explained, the mother is approximately six weeks out of time in seeking to bring her appeal. The affidavit in support of the extension of time is sworn by the solicitor who now has carriage of the mother’s file, a lawyer at the Northern Territory Legal Aid Commission. At the hearing of the application the mother was represented by counsel, who also filed written submissions. It is apparent that the delay has been through no fault of the mother.
The explanation provided by the solicitor relates to processes within the Legal Aid Commission for the funding of appeals. The process described in the affidavit is as follows:
Legal Aid Process
2.As an employee of the Northern Territory Legal Aid Commission I am informed and aware of the following steps that an applicant for legal assistance must comply with before a grant of aid is provided to fund and [sic] appeal. Where the Commission acts for an appellant in an appeal, legal aid must be granted for the solicitor and counsel to prepare and lodge the Notice of Appeal before the solicitor or counsel undertake that work. The Solicitor with carriage of the file must also have instructions from the client that they wish to appeal.
3. The Commission must be satisfied that the appellant is eligible for legal aid before aid will be granted. That is, that client satisfies the means test and the merits test. The merits test includes that there are reasonable prospects of success and that a prudent, self funding litigant would fund the appeal. The Commission must also be satisfied that the matter is an appropriate matter to fund in light of the Commission’s limited funding, guidelines and priority areas of assistance.
4.The Commission ordinarily seeks and relies on preliminary advice from Counsel about the prospects of success of the appeal before making a decision whether or not to grant aid to appeal.
5.The Commission grants aid for disbursements such as a transcript, separately to granting aid for a solicitor or counsel to perform work on the matter. The Commission must be satisfied it is appropriate to incur the expense of the disbursement in all the circumstances of the matter.
The following is a chronology of events contained in the affidavit of the mother’s current solicitor:
· On 29 March 2012 (approximately one week after the mother gave instructions to appeal and one week into the four week appeal period), the mother’s former solicitor made a request for aid to obtain a preliminary advice from Counsel.
· On 3 April 2012 the former solicitor made a follow up inquiry.
· On 4 April 2012 aid for advice on merit of the appeal was granted, subject to a confirmation of the cost of the transcript and counsel’s fee.
· On 10 April 2012 an estimate of the cost of the transcript (in excess of $3,000) was received and it was determined that in the absence of a preliminary advice as to merit, this was too high a cost and the request for aid for the transcript was refused. Aid for a preliminary advice from Counsel was finalised.
· On 11 April 2012 the former solicitor sent counsel a brief and requested preliminary advice.
· On 14 April 2012 the former solicitor re-sent the documents to counsel and counsel confirmed receipt.
· On 19 April 2012 the time limit for the filing of a notice of appeal expired.
· On 20 April 2012 counsel indicated to the former solicitor he/she would be unable to provide the advice and the solicitor sought alternative counsel.
· On 1 May 2012 verbal advice was received from an alternative counsel and a further aid request was made to obtain further advice and file an appeal. A separate request was made for aid to order the transcript of proceedings. On 4 May 2012 both aid requests were granted.
· On 9 May 2012 a verbal agreement was reached between the Commission’s grants section and counsel to provide further advice and prepare documents for the appeal as required.
·
On 10 May 2012 the transcript was ordered, and subsequently delivered on
14 May 2012.
· On 15 May 2012 a brief was sent to counsel.
· On 21 May 2012 counsel returned draft grounds of appeal to the mother’s current solicitor.
· On 23 May 2012 the mother’s solicitor wrote to the father’s solicitor, putting him on notice (nearly five weeks after the appeal period had expired) of the mother’s intention to appeal.
· On 31 May 2012 the application for an extension of time and the supporting affidavit were filed.
There is some difficulty in understanding the not insignificant delay as the Legal Aid Commission was aware of both the appeal period, and the potential that their internal processes (as eventuated in this case), might not be completed before the period lapsed. The further delay in the conduct of the appeal and the costs of this application to both the mother (and the taxpayer) and the father could have been avoided. For example, the mother could have been informed of the appeal period by her solicitor and advised to draft and file a notice of appeal herself in time, which could be amended at a later stage if she was granted aid for the appeal. The solicitor for the father could have been put on notice much earlier of the likelihood of an appeal being filed.
In written submissions, counsel for the mother referred to the statement by
Finn J in Keble and Keble [2009] FamCAFC 195, where her Honour expressed that clients should not have to bear the consequences of regrettable oversights that happen in professional offices, even if other remedies are available to clients against their professional advisors. It was said that where the responsibility for delay lies with the legal representative, not with the appellant, ultimately the decision should be determined according to what the interests of justice demand.
It was further submitted for the mother that there was no hardship or prejudice flowing to the father which cannot be compensated for by orders as to costs or otherwise. Counsel submitted that the delay was minimal and that the father had been put on notice of the appeal by letter of 23 May 2012.
Merits of the Appeal
The mother’s draft notice of appeal lists 11 grounds of appeal. The grounds assert a range of errors of fact and of law. In these circumstances where the delay is not short and the merits of the appeal are extremely important to the extension of time application, it is as well to set out the proposed grounds here:
1.The learned Federal Magistrate erred by failing to provide adequate reasons or otherwise misdirected herself in relation to the pathways and principals to be applied in the relocation matters.
2.The learned Federal Magistrate failed to adequately assess and weigh up all of the relevant best interests considerations in s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
3.The learned Federal Magistrate misdirected herself in concluding that a rebuttal of the presumption contained in s61DA of the Act was not established in the absence of any relevant finding as to the best interests of [the child].
4.The learned Federal Magistrate erred by considering the parenting dispute by focusing upon whether the mother should be permitted to relocate with the child to Cairns rather than properly considering and assessing the parties’ competing proposals. In approaching her consideration in this way, the Learned Federal Magistrate further erred by engaging in a negative enquiry in terms of the Mother’s proposal rather than conducting a positive assessment of those matters relating to [the child’s] best interests.
5.The learned Federal Magistrate, after determining that the parties should continue to have equal shared parental responsibility failed to properly consider the reality of the parents [sic] situation as to whether or not substantial and significant time should be spent by [the child] with the father.
6.That the learned Federal Magistrate made the following findings without adequate reasons and/or upon evidence that was not otherwise available to her;
a. That the child was susceptible to changes and that the relocation would cause “significant disruption to the child”;
b. That the mother’s health issues were of such significant to impact upon the decision to permit relocation where:
i.There was no onus for the Mother to establish she was healthy when her capacity to parent for any extended period was not in issue;
ii.There was no evidence to support Her Honour’s conclusion that the Mother needed any rest for five nights per fortnight due to her health;
iii.There was no evidence to support Her Honour’s conclusion that the Maternal Grandmother would be unavailable to provide the Mother with assistance after the imminent passing of the step-father, or that such passing would cause the Maternal Grandmother “emotional turmoil and disarray and assistance in the support of [the child] (was) not going to be a priority”.
iv.The conclusions at paragraph 16 (q) (iv) to (vi) could not be made, or ought not to have been made in the absence of any definitive finding as to the Mother’s health that would warrant an enquiry into these matters.
7.That the learned Federal Magistrate placed unreasonable weight upon the following matters, or that the following matters were irrelevant to her obligation to make findings in relation to the best interests of [the child];
a.That the Mother’s relocation to Cairns would require “ongoing” changes where Her Honour identifies only one further possible change upon the Mother moving to Cairns;
b.That the mother’s facilitation and promotion of the father’s relationship with [the child] would be compromised if relocation was to occur particularly in the absence of any finding in terms of s60CC(4)(b);
c.That the mother’s demeanour and evidence were to the effect that she harbours an enormous amount of negative feeling towards the father and having done little to address those feelings in circumstances where the only findings in relation to the nature of [the child’s] relationship to his Father were positive and that he had “a secure attachment to each of his parents”;
d.That the Mother’s health issues were to such an extent to “weigh heavily in the decision that the child not be allowed to relocate to Cairns”.
e.That, despite correctly identifying that the Mother need not establishing compelling reasons for relocation, sets out at paragraphs 16(s) to (v) challenges directly the Mother’s reasons and plans for relocation.
8. That the learned Federal Magistrate, upon finding the Father is entering full-time employment shortly, failed to consider whether the likely changes to the Father’s working arrangements might impact upon her considerations of [the child’s] best interests.
9.That the learned Federal Magistrate placed inadequate or any weight upon the Report Writer’s opinion that the Mother would be so impacted by a decision preventing her from relocating that her parenting capacity would be diminished.
10.That the learned Federal Magistrate provided inadequate reasons for deviating from the opinion of a Report Writer as to the Mother’s parenting capacity in the event she was unable to relocate.
11.That the learned Federal Magistrate placed inadequate weight upon the Father’s reliance upon the Paternal Grandparents to care for [the child] and, in view of ground 8 above, failed to consider how that role might change in the future as part of the Father’s proposal.
In written submissions, counsel for the mother submitted that the essence of the mother’s appeal is that the orders appear to have been reached by the Federal Magistrate without a proper assessment of the competing proposals of the parties. The orders were not those recommended by the Family Report Writer. It was submitted that there were not sufficient reasons for giving little or no weight to expert evidence about what arrangements would be in the best interests of the child. The recommendations of the Family Report Writer were as follows:
39.It is recommended that the parents have equal shared parental responsibility for [the child].
40.It is recommended that [the child] live with the mother, and that the mother be permitted to relocate to Cairns with [the child] in time to enrol [the child] in school at the commencement of the second school term in Queensland.
41.It is recommended that [the child] spend time with the father as follows
i.) For 4 weeks of the Christmas-January school holidays each year, with the Christmas Day period alternating between the parents each year, and commencing in Darwin for the first 4 weeks of the 2012 Christmas school holidays
ii.)For 2-weeks of the mid-year Queensland school holidays
iii.)For 2 weeks of the Easter school holidays, alternating each year
iv.)For 2 weeks of the September/October school holidays, alternating in each other year
v.)At any time the father choose to visit Cairns upon the father giving the mother reasonable notice of his intention to spend time with [the child]
vi.)That the father be permitted to travel interstate, or within Queensland, during any time that [the child] is in his care.
vii.)That for the purpose of facilitating [the child’s] travel by air to and from Darwin the parents contribute equally to the cost of [the child’s] air travel
Counsel submitted that her Honour failed to follow the appropriate legislative pathways and principles which she was required to, by weighing up the parties’ competing proposals in the relocation, and adequately explaining why orders that departed from expert views were to be made.
At the hearing of the application the father was represented by his solicitor, who explained that the father was currently located remotely for work and had only been able to provide instructions by email to oppose the mother’s application.
Conclusion
The mother’s proposed appeal raises important arguments in an appeal including adequacy of reasons, incorrect application of legal principles, making of findings not open on the evidence, and error in the exercise of discretion. Based on the comprehensive and considered grounds prepared by counsel, I consider there is sufficient merit in the grounds to allow an extension of time. The grounds would not require further amendment in order to be instructive in the conduct of an appeal, and the notice of appeal could be filed within a short period.
The six week delay is not insignificant and the late notice to the father of the mother’s intention to appeal is unfortunate. The father was entitled to rely on the orders as final once the appeal period had expired. However, in these circumstances where the mother was reasonably relying on the advice of her legal representation and where, as has been seen, the proposed grounds of appeal raise serious issues which if established may lead to the appeal being allowed, I do not consider the delay so significant as to prevent an extension of time. As always, the critical question is what order should be made to do justice between the parties. In this case it is that rules should not prevent the mother from an opportunity to appeal.
Costs
Counsel for the mother asks that the costs of the application be reserved to the Full Court.
The solicitor for the father asked that the applicant mother pay his costs. There are a number of reasons which would justify an order that the mother pay the father’s costs, not the least that she has asked the Court for an indulgence because of a failure to file the appeal within time. There are two factors which may militate against such an order. The first is her financial circumstances and the second is that it cannot be known whether the appeal will succeed. In addition, the Court should consider whether the Northern Territory Legal Aid Commission, in the circumstances of this case, should be ordered to pay the father’s costs. The Full Court hearing the matter will be best placed to decide the question of costs when, if necessary, submissions can be made by the Northern Territory Legal Aid Commission.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered 10 July 2012.
Associate:
Date: 10 July 2012
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