SMOLLETT & DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

[2018] FamCAFC 148

FAMILY COURT OF AUSTRALIA

SMOLLETT & DEPARTMENT OF
FAMILY AND COMMUNITY SERVICES  [2018] FamCAFC 148

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – CHILD ABDUCTION – Hague Convention – Application for an extension of time – Where the applicant filed a Notice of Appeal out of time – Where the mother makes no challenge to the correctness of the primary judge’s orders – where the appeal was therefore incompetent – Where it would be futile to extend time in which to bring the appeal – Application dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 22.03
Family Law (Child Abduction Convention) Regulations 1986 (Cth) s 19A(2)

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

APPLICANT: Ms Smollett

RESPONDENT: Department of Family and Community Services

FILE NUMBER: SYC 6905 of 2017

APPEAL NUMBER: EA 88 of 2018

DATE DELIVERED: 9 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 7 August 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 18 May 2018

LOWER COURT MNC: [2018] FamCA 372

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Lam of Genuine Legal

COUNSEL FOR THE RESPONDENT: Dr Barnett

SOLICITOR FOR THE RESPONDENT: Legal Services Unit, Department of Family and Community Services

Orders

1. The application for an extension of time in which to appeal the orders of McClelland J made on 18 May 2018 is dismissed.

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 Smollett & DFACS 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 88 of 2018
File Number: SYC 6905 of 2017

Ms Smollett

Applicant

and

Department of Family and Community Services 

Respondent

REASONS FOR JUDGMENT

1. Ms Smollett (“the mother”) seeks to appeal orders made by McClelland J on

   
   

   18 May 2018 by which his Honour dismissed her application to discharge an order made on 21 December 2017 pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).  The Regulations implement Australia’s obligations pursuant to the Hague Convention on Civil Aspects of International Child Abduction (“the Hague Convention”).  The order concerns Ms Smollett’s child born 16 May 2015 (“the child”), who is the only child of the mother and Mr D (“the father”).

2. The appeal against his Honour’s order made on 18 May 2018 is out of time and thus leave to bring the appeal is necessary.  The history of the proceedings before the primary judge is helpful to understand the context of the application.  I have taken the contextual facts from his Honour’s reasons given on 21 December 2017 noting that that order was not subject of an appeal.

Background

1. The child was born in New Zealand in 2015 at a time when both parties were living there, having moved to New Zealand in November 2014.  On 25 August 2017 the mother said that she wished to bring the child to Australia to visit relatives here and she told the father that the visit would be for one week.  The mother did not return the child to New Zealand and thereafter refused to return her.

2. On 20 October 2017 the Secretary of the New South Wales Department of Family and Community Services in his capacity as the State Central Authority (“the Central Authority”) applied for an order that the child be returned pursuant to the Regulations.  After making interim orders on 26 October 2017, the primary judge determined the matter on 21 December 2017.

3. The mother opposed the application raising the defences that the father had acquiesced to the child remaining in Australia and, further, argued that to compel the mother to return to New Zealand with the child would place the mother and the child in an intolerable situation likely to result in psychological harm to both of them.

4. Having found the statutory preconditions to the making of an order for return of the child established, the primary judge considered the mother’s defences and found neither to have been made out.

5. Thus on 21 December 2017 his Honour ordered that the child be returned to New Zealand and that the order take effect on 20 January 2018.  His Honour by way of machinery orders, imposed conditions requiring the father to pay for the mother and child’s airfares to New Zealand, pay a sum to the mother for her and the child’s financial support for a period of three months and for the father to provide accommodation for the mother and child for three months (subject to other matters, not relevant here).

6. On 9 March 2018 the Central Authority applied for a variation of the machinery orders, and that application was adjourned at the mother’s request returning to his Honour on 23 March 2018 and, apparently in anticipation of the mother bringing an application to discharge the return order of 21 December 2017, she was ordered to file and serve an affidavit containing the material that she wishes to rely on at the hearing.  On 23 March 2018 his Honour made orders adjourning the matter to 24 April 2018 and remade orders directing the mother to file and serve an affidavit containing her evidence.

7. When the matter was next before the primary judge, on 24 April 2018, the mother had not complied with the directions to file her evidence.

8. Thus his Honour varied the operative date of the return order to 24 May 2018 and made further orders to the effect that the Central Authority make the necessary arrangements for the child’s return to New Zealand.  However, by notation to those orders, his Honour indicated that should the mother bring an application pursuant to regulation 19A of the Regulations for discharge of the return order, it would be heard on 18 May 2018.

9. On 18 May 2018, the mother having complied with the directions filed an application seeking discharge of the return order made on 21 December 2017 and had filed an affidavit in support of that application. The application was heard and dismissed by the primary judge.  His Honour noted that the bases on which a discharge of the order could be made were set out in reg 19A(2) and that the mother relied on reg 19A(2)(b) “that circumstances have arisen since the order was made that make it impracticable for the order to be carried out” and reg 19A(2)(c) “that exceptional circumstances exist that justify the return order being discharged”.

10. His Honour, observing that the determination of such an application must be seen in the context of the Regulation and the purpose of Hague Convention, dismissed the application finding neither basis made out.

11. He then varied the date on which the order for return would operate to 24 June 2018 and further varied the orders of 24 April 2018 such that the return order will not come into effect if either:

    a)the mother complies with the orders made on 21 December 2017 on or before 23 June 2018 or,

    b)parenting orders are made by a Court of appropriate jurisdiction in NZ permitting the child to live in Australia on an interim or permanent basis.

12. Neither event occurred, although it appears that the mother sought such an order from a New Zealand Court, which, perhaps, given that the child was then in Australia subject to the order for her return, declined to make any order. 

13. Finally, on 27 July 2018, the primary judge further varied the orders made on 24 April 2018 extending the time by which the operation of the order of 21 December 2017 takes effect until 21 November 2018.  The basis for the further extension of time was the mother’s advanced state of pregnancy and the medical advice that she was not capable of flying with the child to New Zealand in compliance with the orders.

14. Consequently in accordance with the order made on 21 December 2017 the child will now have to return to New Zealand.

15. The mother now seeks to appeal the orders of 18 May 2018.

The application to extend time in which to appeal

1. Rule 22.03 of the Family Law Rules 2004 (Cth) provides that a Notice of Appeal must be filed within 28 days after the date the order appealed from is made. The mother sought to file the appeal 18 days out of time.

2. The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 and in the judgment of McHugh J at 480, his Honour said:

   … The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine 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 the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. …

   (Citations omitted)

Explanation for the delay

1. The mother relies on her affidavit filed on 4 July 2018 in support of the application however she does not give any reasons for the delay in filing her appeal.  It seems the mother may be arguing that the delay in filing the appeal arose because she appears to have attempted to obtain some form of parenting order in New Zealand although she has not produced any evidence of an application she may have made to the New Zealand Court.

2. The unexplained delay of some 18 days is significant given the nature of the proceedings which are directed to the prompt return of children wrongfully retained.

Merit of the appeal

1. As part of a consideration of the application, it is necessary to consider whether the making of the order sought creates an injustice to the respondent and cause needless expenditure of public funds if the appeal was otherwise to proceed because it was otherwise devoid of merit.  It is recognised that before an applicant is denied the right to have his or her appeal heard, it must be clearly shown that the appeal would fail. 

2. The mother asserts she has new evidence purporting to show that returning the child to New Zealand will cause her grave physical and psychological harm and damage in the immediate and long term.  The mother further deposed that she now believes that she has “undoubtable evidence of the grave harm, to the point of it being inhumane” for the child to return to New Zealand which she said would persuade the Court to discharge the order for return of the child.

3. However, other than the bare assertion as to the existence of new evidence, the mother did not adduce it nor even give an indication of what that evidence might be.

4. While not mentioned in the mother’s affidavit in support of the application, it seems from the submissions of the respondent that in July 2018 the mother placed further evidence before the primary judge asserting that if she was compelled to return to New Zealand she would be placed in an intolerable position.  The evidence was from a general practitioner and a paediatrician who having diagnosed the child as being on the Autism Spectrum said that if she was separated from the mother and returned to New Zealand alone, the child would be greatly distressed with the possibility of psychological harm. 

5. Accepting that evidence was adduced before the primary judge, two matters flow, first, his Honour clearly did not see it as a barrier to compliance with the return order but secondly and importantly, the mother’s position has never been that the child should be returned without her but has maintained the position that she would return with the child and it was the mother who would be harmed if compelled to return.  It is apparent that at no stage during the hearing before the primary judge either in December 2017 or in May 2018 did the mother assert that to return the child would place the child in a position of grave risk although she asserted that the child was not safe in the father’s care.

6. It must be observed that the mother has represented herself in this matter from time to time and it is apparent that she drafted the application, affidavit and draft Notice of Appeal herself.  However, she was represented by a solicitor on the application who provided written submissions in support of the application.  With respect to those submissions, they do not address the relevant issues, instead it was argued that the Central Authority is pursuing these proceedings as an abuse of process joining with the father to “put the Applicant mother in a precarious position and using the child as leverage against her”.  Although the mother’s solicitor accepted the proposition that the Central Authority acts in support of the Hague Convention and is or should be a model litigant, the mother’s solicitor maintained that submission.  To the extent that it is necessary, I reject it.

7. The solicitor for the mother indicated that on her behalf he had prepared a 122 paragraph affidavit which outlined the care that she has given the child contrasting that with what was said to be the father’s lack of care of the child.  This submission misunderstands the nature of the proceedings before the Court, namely to return children wrongfully retained to their country of habitual residence understanding that in that country separate, inter partes, litigation might take place over parenting issues. 

8. Finally it was submitted that the child had not in fact been wrongfully retained in Australia.  That issue was determined by the primary judge on 21 December 2017 and there was no appeal from that determination.

9. Thus those submissions are rejected.

10. Turning then to the draft Notice of Appeal, the grounds do not assert any error of the primary judge in making the orders on 18 May 2018.  Instead the grounds assert that the mother is in possession of new evidence which would support her application for discharge of the orders.

11. Thus the appeal is, on its face incompetent, disclosing no proper challenge to his Honour’s orders and the application to extend time in which to bring it is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 9 August 2018.

Associate: 

Date:  9 August 2018