BATES & ARTHUR AND ANOR

[2017] FamCAFC 73

FAMILY COURT OF AUSTRALIA

BATES & ARTHUR AND ANOR [2017] FamCAFC 73

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO INTERVENE – Application in an appeal by the father seeking leave to intervene in an appeal – Where the Court is satisfied that allowing the application would not cause any injustice to the applicant – Where in the circumstances, it is in the interests of justice that the application for leave to intervene be granted – Application to intervene granted.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where granting of leave is not automatic and involves the exercise of discretion –Where explanation for the failure to file a Notice of Appeal in a timely way was adequate – Where the extension of time would not cause real prejudice to the respondent – Extension granted.

Family Law Act 1975 (Cth) s 94

Family Law Rules 2004 (Cth)

Gallo v Dawson (1990) 93 ALR 479
Hanbury-Brown & Hanbury-Brown & Director General of Community Services (1996) 130 FLR 252
Laing & Central Authority (1996) FLC 92-709

APPLICANT: Mr Bates

FIRST RESPONDENT: Ms Arthur

SECOND RESPONDENT: Department of Family and Community Services

FILE NUMBER: SYC  4935 of 2016

APPEAL NUMBER: EA
EA 12
29 of
of 2017
2017

DATE DELIVERED: 11 April 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 11 April 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 22 December 2016

LOWER COURT MNC: [2016] FamCA 1119

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Barnett

SOLICITOR FOR THE APPLICANT: Dimocks Family Lawyers

COUNSEL FOR THE 1^ST RESPONDENT: Mr C. Ward SC and Ms M. Bridgett

SOLICITOR FOR THE 1^ST RESPONDENT: Feminist Legal Clinic

COUNSEL FOR THE 2^ND RESPONDENT: Mr R. Harper

Orders

1. That the applicant father be granted leave to intervene as the second respondent in appeal number EA12 of 2017.

2. That the father be granted leave to appeal the orders of Loughnan J made on 24 January 2017 (EA29 of 2017) upon condition that the Notice of Appeal is filed no later than 18 April 2017.

3. In appeal EA29 0f 2017, the father shall file and serve a Draft Appeal Index no later than 18 April 2017.

4. In appeal EA29 of 2017, the father shall file and serve the appeal books no later than 21 April 2017.

5. Order 7 of the procedural orders in appeal EA12 of 2017 is varied by deleting 20 April 2017 and inserting 21 April 2017.

6. In appeal EA29 of 2017, the Department of Family and Community Services shall file and serve its summary of argument and list of authorities no later than 28 April 2017.

7. That the appellant mother in EA12 of 2017 and the appellant father in EA29 of 2017 shall file and serve submissions in reply no later than 1 May 2017.

8. Appeals EA12 of 2017 and EA29 of 2017 be consolidated and listed for hearing at 10:00 am on 2 May 2017.

9. The mother’s application for costs be dismissed. 

10. The Notice to Produce served by the appellant mother upon the Department of Family and Community Services be adjourned to the commencement of that appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 12 of 2017 and EA 29 of 2017
File Number: SYC 4935 of 2016

Mr Bates

Appellant

And

Ms Arthur

Respondent

And

Department of Family and Community Services
Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. Ms Arthur (“the mother”) and Mr Bates (“the father”) have one child together, who was born in 2011 (“the child”).

2. By way of an application filed on 3 April 2017, the father seeks leave pursuant to section 92, but I think we have agreed it should be section 94(2B)(a), of the Family Law Act 1975 (Cth) (“the Family Law Act”) to intervene in appeal proceedings EA12 of 2017. This is an appeal filed by the mother on 17 January 2017 against an order that she return the child to New Zealand.

3. The father also seeks an extension of time within which to institute an appeal against orders of the same judge made on 24 January 2017, which attach conditions to the order for return.

4. So as to give this application context, it is necessary to provide some brief background facts.  These are largely taken from his Honour’s reasons on the conditions decision and the documents filed in support of the application. 

5. The child was born in New Zealand in 2011.  She is a New Zealand citizen, and until May 2016 had always lived in New Zealand.  The father was born in New Zealand and as far as the evidence suggests, since at least 2009, this is where he has lived.  He is a New Zealand citizen.  The mother was born in Australia and as a child, lived in Australia and New Zealand.  She is a dual citizen of these countries.

6. The parties commenced living together in New Zealand in late 2009 and largely lived together until mid-2012.  It would appear that following a period of separation, they resumed cohabitation in mid-2014 and separated on a final basis in mid-2015.  The mother and child flew from New Zealand to Australia on 19 May 2016 and have remained in Australia since that time. 

7. The father made an application pursuant to The Hague Convention on the Civil Aspects of International Child Abduction to the relevant New Zealand agency in July 2016.  On 5 August 2016, at the request of the New Zealand authority and the intervening Australian Central Authority, the New South Wales Central Authority filed an application in the Family Court under the Abduction Regulations for the return of the child to New Zealand.  The primary judge granted the application on 22 December 2016 and made orders accordingly. 

8. The mother’s notice of appeal, to which reference has already been made, appeals against these orders.  His Honour gave further consideration to whether conditions should be attached to the return order, and for this purpose the proceedings were adjourned to 9 January 2017.  It would appear that there were some difficulties with that date and it may be that the hearing took place later than 9 January 2017.  But in any event, the conditions orders were made on 24 January 2017.

LEAVE TO INTERVENE

1. Turning then to the father’s application to be joined as a party to the mother’s appeal, it needs to be understood that he was not a party to the proceedings at first instance and is not named in the orders.  Leave to intervene is therefore required. 

2. In an affidavit filed by the father in support of this application, he sets out the basis upon which he says he has a personal interest in the mother’s appeal; the affidavit evidence being supplemented by oral addresses from his counsel this morning to that point. It is accepted that he is personally affected by the return order and thus the outcome of the appeal.

3. Senior Counsel for the mother articulated the basis upon which the mother opposes the father being given leave to join the appeal.  In essence, it was argued that prior decisions which have permitted leave are simply wrong.

4. Senior Counsel differentiated between those cases in which the central authority would play a role in the appeal with those where the central authority elected to not participate in the appeal.  But it seems to me when regard is had to cases such as Hanbury-Brown & Hanbury-Brown & Director General of Community Services (1996) 130 FLR 252 (“Hanbury-Brown”),we can see that the Full Court permitted the left behind parent to participate in the appeal even though the central authority was a party and actively involved in the appeal. In that sense, Hanbury-Brown might be seen to be on all fours with the factual circumstances that are proposed for this appeal if the father is given the opportunity to join as a party. 

5. I also accept the submissions by counsel for the father that the father’s interest differs to that of the central authority and although one can see remarks in the early days of the Convention where intermediate appellate Courts have seen the left behind parent and the central authority as sharing the same interest, I think Ms Barnett has explained why the better view is that the interests are not necessarily the same. The line of authority settled in Laing & Central Authority (1996) FLC 92-709 would reinforce that point.

6. That said there is also a degree of overlap in the interests of the central authority and the left behind parent but that ought not cause delay or undue complexity to the appeal.  It seems to me it is a matter for the conduct of the appeal itself to ensure that any potential inefficiencies by having a shared interest are not allowed to intrude so the appeal is conducted inefficiently. 

7. I do not accept the argument that the mother would be prejudiced in the event the father was given permission to intervene in her appeal.  It is quite clear from the submissions made today that counsel for the father presents the application on the basis that the mother’s appeal, which has been allocated a hearing on 2 May 2017, would proceed and that counsel is well able to meet any reasonable requirement for the filing of summaries of argument and the like.  On balance, I am persuaded that the application for permission to be joined as a party should be granted.

APPLICATION FOR EXTENSION OF TIME

1. The next question which arises is consideration of the father’s application for an extension of time to appeal the conditions attached to the return order.  I make similar observations in this respect as to him being affected by those orders.  Indeed his position, is somewhat strengthened by the fact that the central authority has elected not to appeal those orders, although I accept it may wish to be heard in relation to them.  Either way, the father’s position is even stronger than it was on the application to join the mother’s appeal. 

2. Rule 22.02 sets out how an appeal is to be commenced, and at rule 22.03, a notice of appeal must be filed within 28 days after the date on which the order appealed was made.  The principles relating to an application for an extension of time to file an appeal are set out in Gallo & Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave. However, the overarching principle is to ensure that injustice is not visited upon either of the parties.

3. The last day the father had to file a notice of appeal as of right, assuming he was able to establish that he was a person affected, was 21 February 2017.  It is argued against an extension of time that he has simply taken too long to present the application.  In order to determine this issue, a brief chronology of events is illustrative.

4. The hearing before the primary judge took place on 14 December 2016, following which his Honour reserved his decision.  As has already been mentioned, his Honour provided his reasons for judgment on 22 December 2016 made the order for return that same day. 

5. The mother filed a notice of appeal and an application for a stay of the return order on 17 January 2017.  The New Zealand authority was advised of the mother’s appeal and application on 18 January 2017. It would seem that in the meantime, there had been exchanges about the types of conditions that were sought by the mother in relation to the return order.  There is evidence of information provided by the New Zealand authority on 19 January 2017, which makes it clear that the father was told that the court was considering the conditions that might be attached to the return order. 

6. The primary judge made the conditions which the father would seek to appeal on 24 January 2017.  It would seem on the same day his Honour also granted a stay pending the determination of the mother’s appeal. 

7. It is clear that on about 27 January 2017, Ms Dawe, who would appear to be a New Zealand barrister advising the father, informed him of the orders of 24 January 2017.  Ms Dawe was able to convey the father’s distress that he would not be able to comply with the orders.  She advised the New Zealand Authority of that fact on about 31 January 2017.  Following this, it would seem that there were further discussions concerning the return conditions but they came to nought. 

8. The New Zealand Central Authority was provided with a sealed copy of the conditions orders on 21 March 2017.  On 23 March 2017, it is clear that the New Zealand authority, possibly also the father, was aware that a decision had been made by the New South Wales Central Authority not to appeal the orders of 24 January 2017.  But, of course, by then, the 28 day time limit was well past. 

9. The brief chronology that I have provided has shown that the line of communication between the father and, as a consequence, his involvement in the proceedings below, is more complicated than would ordinarily be the case between a person affected by orders but who was a party to the proceedings. The effect of this is that decisions were able to be made by those involved in the proceedings without instructions from the father, for example, the decision to appeal or not appeal.  He was kept informed but at a pace that I accept compromised his ability to make timely decisions in a manner that would be expected of a person who was a party to the proceedings. 

10. That said, given that the father was advised by Ms Dawe, he obviously had the opportunity to take advice about his right to appeal and the time constraints that might apply in relation to an appeal.  That fact weighs against the relief sought.  But I give greater weight to the fact that the father is a person of very limited means.  There is reference in the material placed before me, that he is employed as a junior farm hand and earns $16 per hour.  His income is sufficiently modest that he is not required by the New Zealand taxation laws to, at least last year, file an income tax return.  Only a couple of months ago he had about $1000 in savings.  As a person of very modest means, it was reasonable for him to sit back and wait for the agencies who had prosecuted the application at first instance to come to a view about whether or not there would be an appeal of the orders of 24 January 2017. 

11. Upon him becoming aware that the decision had been taken against an appeal, the father has moved with appropriate diligence and demonstrated that he can be relied upon to prosecute this appeal in a timely way and in conjunction with appeal EA12 of 2017. 

12. I accept there is a degree of prejudice to the mother if the father is given leave to prosecute the appeal, the point being, she would be expected to meet an appeal which, as at this point in time, she believed she need not meet.  There are cost consequences and, of course, the stress associated with another piece of litigation.  But, on balance, the subject matter of the litigation and the potential consequences to the father should be given greater weight than the prejudicial consequences to the mother.

13. In the event that I came to that view, it was submitted for the mother, any grant of leave should be conditional upon two matters. 

14. The first is that leave be conditional upon the mother being able to agitate before the Full Court, that the grant of leave should be revoked.  If the view is taken that the grant of leave is a procedural order, then it seems to me there would be no difficulty with the mother being able to make that application.  If a different view is taken, the question of conditional leave is more problematic.  I do not propose to attach conditions to either grant of leave so as to enlarge the mother’s rights, such as they may be, under the Act, Rules and Regulations.  If the mother has the right to pursue the application to revoke leave in either respect, she can make it, but not with any additional rights established by these orders. 

15. Otherwise, the question becomes one of the mother’s costs incurred as a result of the applications agitated today on behalf of the father.  In my view, the parties should carry their own costs of these applications. It was necessary, given that the father was not a party in the proceedings below, for an application to be presented to the Full Court.  My assessment is that a considerable component of today, certainly not all of it, has been addressed to the father’s application to join the mother’s appeal.  The parties are both people of modest means and, given the gravity of the issues, I think the better course is that there be no order as to costs. 

I certify that the preceding twenty-eight (30) paragraphs are a true copy of the reasons for judgment of the Honourable Ryan J delivered on 11 April 2017.

Associate: 

Date:  26 April 2017