Father Proposes Cross-Appeal of Parenting Orders

Mallows & Harrod [2022] FedCFamC1A 92 (17 June 2022)

The father seeks an extension of time to file a Notice of Cross-Appeal and to remove the Independent Children’s Lawyer from the proceedings and have another appointed.  The proposed Notice of Cross-Appeal, in addition to seeking that the orders of the primary judge be set aside, seeks orders that the children live with the maternal grandmother who is to have sole parental responsibility for them and spend time with the applicant.   The Court, in determining whether the proposed Notice of Cross-Appeal should be granted, considered its prospects of success.

Facts:

The proceedings concerned the two children of the applicant, who were born in 2014 and 2015.  Neither the applicant nor their mother, Ms Robie, played any active role in the hearing, although they were both present for at least some of the proceedings.  Neither of them propounded any orders to the Court for consideration.  Rather, the proceedings were actively between Ms Mallows (the paternal aunt and the appellant in the appeal) and Ms Bowden (the maternal grandmother).

The children have been in the care of the paternal aunt since January 2018.  At the hearing, she sought orders that the children continue to live with her and spend time with the maternal grandmother one weekend each school term and for the first week of the short school holidays and for three weeks of the Christmas holidays. Orders largely along those lines were made, although the children were to spend two weekends per term with the maternal grandmother.  The paternal aunt also sought orders enabling her to move the children from Town B in New South Wales to Town A in Queensland. 

That application was refused and the children were required to live in New South Wales and no more than three hours from Town C, except with the written consent of the maternal grandmother.  The maternal grandmother sought orders for the children to live with her and then quickly progress so that within nine months the children were spending two nights a fortnight in the sole care of the mother or the applicant.  The primary judge’s orders were made on 24 January 2022 and a Notice of Appeal was filed by the paternal aunt on 21 February 2022.  No cross-appeal was filed.

A procedural hearing was conducted before the appeal registrar on 5 April 2022.  On that day, all the parties appeared, including the applicant who appeared via his solicitor.  The Independent Children’s Lawyer did not appear, having filed a Submitting Notice. Directions were made for the preparation of the appeal.  The paternal aunt, who is the appellant, was to file her Summary of Argument on or before 13 May 2022 with the parents and the maternal grandmother to file their Summaries of Argument by 3 June 2022. 

Issue:

Whether or not the father's application should be granted. 

Applicable law:

 

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 - provides that Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding.

 

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 - provides that the grant of an extension of time under this rule is not automatic.

 

House v The King (1936) 55 CLR 499; [1936] HCA 40 - where it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. 

 

Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 - where it is plain from the terms of s 60CC(2)(a) of the Family Law Act 1975 (Cth) (“the Act”) that it does not apply to the paternal aunt or to the maternal grandmother. 

 

Analysis:

It is the applicant’s evidence that he has never been served with the Notice of Appeal, but it is plain that a lawyer instructed by him appeared before the appeal registrar on 5 April 2022 when directions were made preparing the appeal for hearing.  Either the applicant or his then solicitor had been served with a copy of the Notice of Appeal or had it in their possession.  Therefore, at the latest, a Notice of Appeal raising the cross-appeal should have been filed by 19 April 2022.  The timetable was not complied with and the paternal aunt’s submissions were only filed on 24 May 2022. 

The time proposed in the Notice of Cross-Appeal is an entirely different arrangement to that proposed by the maternal grandmother at the hearing.  Thus, if the leave sought by the applicant is granted, the rather odd circumstance would come about where the maternal grandmother, who failed to get the orders for which she contended, is not appealing, but the applicant who is seeking orders more expansive then those sought by the maternal grandmother at hearing but advanced no proposal of his own, is appealing.  A trial judge cannot be found to have erred by not making orders that were sought at the hearing that were outside the range of the orders that were in fact proposed.

The evidence of the Family Report writer was given substantial discussion.  The fact that the outcome of that consideration did not favour the maternal grandmother’s case, does not establish error.

Conclusion:

The grounds of appeal, while some of them may be arguable, do not indicate that the proposed cross-appeal has strong or even reasonable prospects of succeeding.  The Application in an Appeal filed on 6 June 2022 is dismissed.

#Appeals