Appellant Seeks Leave to Appeal Out of Time
Rubin & Rubin [2022] FedCFamC1A 148 (23 September 2022)
The appeal registrar dismissed an application for leave to bring an appeal out of time. The Court, in making final orders, assessed whether the delay was not gross as well as the utility of the appeal.
Facts
The parties have two children, currently aged nine and six years. Orders in respect of the children were made with the parties’ consent on 29 March 2021, thereby concluding their dispute under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Relevantly for present purposes, the orders vested the parties with equal shared parental responsibility for the children. Apparently, the orders were implemented uneventfully until the parties reached an impasse over the children’s vaccination against COVID-19.
To break the deadlock, the husband filed an Initiating Application on 4 February 2022 seeking orders to facilitate the children’s vaccination over the wife’s objection by giving him sole parental responsibility for that discrete issue. The wife joined the issue by filing a Response on 8 March 2022, in which she opposed the relief sought by the husband. She principally sought the dismissal of the husband’s application and, instead, her investiture with sole parental responsibility for all vaccination decisions related to the children, but alternatively, a stay of the proceedings until judgment was delivered in unrelated proceedings pending before the Federal Court of Australia, between an incorporated anti-vaccination interest group and the federal Department of Health. The primary judge determined to vary the existing order allocating the parties with equal shared parental responsibility for the children by ordering that the husband would have sole parental responsibility for the children with respect to the specific issue of their receipt of vaccinations against COVID-19.
On 7 July 2022, the appeal limitation period lapsed without any appeal being filed. It transpired that the wife’s principal lawyer had suffered some ill health, which necessitated his short hospital stay, compounding the lawyer’s delay in acting upon the wife’s instructions to appeal. An Application in an Appeal was filed on 1 August 2022, seeking leave to bring the appeal out of time, which application was heard by the appeal registrar on 9 August 2022 and dismissed with reasons on 22 August 2022.
Issue
Whether or not the wife should be granted leave to bring her proposed appeal out of time.
Applicable law
Family Law Act 1975 (Cth) Pt VII s 65D - provides that in proceedings for a parenting order the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Family Law Act 1975 (Cth) Pt VII, s 65DAC - applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
Analysis
The parties were unable to exercise their equal shared parental responsibility to make a joint decision about the children’s vaccination. Having attempted to compromise, as the Act requires of them (s 65DAC), they remained deadlocked. The only remedy was an order by the Court to settle the dispute.
The wife submitted their disagreement over the children’s vaccination was “not a change in circumstances, let alone a material change” to warrant revision of the existing orders, but that cannot be correct for otherwise no deadlock between parents over important issues concerning their children – like their medical treatment, school enrolment, religious instruction, or the like – could ever be resolved.
The wife could not rationally dispute that proposition, because just like the husband, she sought an order to vary the existing orders. She proposed that, rather than the husband, she be given sole parental responsibility in that limited respect. But the primary judge instead decided the husband had the unilateral right to decide if, when, and how the children would be vaccinated. The wife’s written submissions made reference to “section 70BNA” (presumably meant to be s 70NBA), which is presently irrelevant because neither party prosecuted a contravention application against the other, but no mention was made of s 65D(2), which is critically important.
The wife submitted the primary judge misapplied ss 61DA(1) and 61DA(4) of the Act, which provisions respectively prescribe the application and rebuttal of the presumption that parents will have equal shared parental responsibility for their children whenever parenting orders are sought and made. Here, the parties already had equal shared parental responsibility but, since they could not reach an agreement on an important issue, each sought an order giving them sole parental responsibility in respect of a single “major long-term issue” related to the children’s care, which dispute the primary judge duly decided.
Conclusion
The Application in an Appeal filed on 12 September 2022 is dismissed. The wife shall pay the husband’s party/party costs of and incidental to the application in the fixed sum of $8,324.
