Ahmed and Jeret - [2016] FamCAFC 222

FAMILY COURT OF AUSTRALIA

AHMED & JERET

[2016] FamCAFC 222

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time – Where the applicant filed an Application in an Appeal seeking an extension of time in which to file a Notice of Appeal more than eight weeks late – Where the applicant’s explanation of the delay is unsatisfactory – Where the proposed appeal has poor prospects of success – Application dismissed.

Family Law Act 1975 (Cth) s 60CC(3)(j)
Evidence Act 1995 (Cth) s 80

Family Law Rules 2004 (Cth) rr 1.14, 22.03

Fox v Percy (2003) 214 CLR 118
Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
Metwally v University of Wollongong (1985) 60 ALR 68
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447

APPLICANT:

Mr Ahmed

RESPONDENT:

Ms Jeret

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

5108

2011

APPEAL NUMBER:

151

2016

DATE DELIVERED:

8 November 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

6 October 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 June 2016

LOWER COURT MNC:

[2016] FamCA 442

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ahmad

SOLICITOR FOR THE APPLICANT:

Avant Legal Lawyers & Associates

FOR THE RESPONDENT:

Respondent in Person

SOLICITOR FOR THE RESPONDENT:

Stacks Law Firm (Acting but did not appear)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McMullen as Agent

Orders

The Application in an Appeal filed on 2 September 2016 be 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 Ahmed & Jeret 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 151 of 2016
File Number: SYC 5108 of 2011

Mr Ahmed

Applicant

And

Ms Jeret

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 2 September 2016 Mr Ahmed (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against orders of Rees J pronounced on 6 June 2016. The applicant is the father of B and C (“the children”), who were born in 2008 and in 2010 respectively. Their mother is Ms Jeret (“the respondent”).
The orders made by Rees J provided for the children to live with the respondent, who was to have sole parental responsibility for them. From the date of the orders until December 2016 the children were to spend time with the applicant for two hours every alternate Sunday, supervised by the paternal grandmother, with changeover to occur at a professional contact centre or, if that was not available, by delivery to the paternal grandmother at a defined location. In the latter case the applicant was not to be present at the time of changeover.
The orders continued that thereafter the time with the children would be extended and that the person undertaking the supervision need not be continually present with the children. Ultimately, from September 2019 the children were to spend time with the applicant every alternate weekend. That time was not to be supervised.
The parties commenced a relationship in 2007, which ended in September 2012 when the respondent initiated Apprehended Domestic Violence proceedings. At the time the relationship commenced the applicant was engaged to be married to a third person. He married her in April 2008 and divorced in September 2010. All the while, the relationship between the parties continued.
The primary judge recorded that the parties never lived together.
On 14 December 2012 consent orders were made in the Federal Magistrates Court, as it was then known, for the children to spend time with the applicant each week, supervised by a professional contact centre. There were some variations to these orders from time to time but the upshot was that when the matter came on for hearing before Rees J, the children were continuing to spend time with the applicant, albeit supervised by the contact centre.
It was the respondent’s case, which was largely accepted by the primary judge, that the applicant had been violent to her in the presence of the children, both during and after the relationship.
The primary judge accepted the evidence of the single expert Dr I, which was to the effect that if the respondent’s allegations of violence could be relied on then the children’s contact with the applicant should be limited.
Dr I considered, however, that the children would benefit from a meaningful relationship with the applicant and that they should see him regularly. Accordingly she recommended orders that would see the children spending time with the applicant supervised by a professional contact centre.
For his part, the applicant denied the allegations of violence and asserted that, in any event, he had never been violent to the children. He pointed to the three and a half years of supervised time with the children which had been of benefit to them. He relied on the single expert’s opinion that the respondent had exhibited a need to control the children’s behaviour. It was his case that he posed no risk to the children.
Nonetheless, he proposed that the children at first spend time with him in the presence of the paternal grandmother, before progressing to unsupervised time.
I pause to interpolate that the respondent submitted that a requirement that the paternal grandmother be present was not a form of supervision and is a lesser standard of oversight. I do not accept that submission.
The primary judge found that the applicant’s violent conduct indicated there was a risk he would again engage in dysfunctional conduct in the presence of the children, but that such a risk was justified by the benefit to the children of spending time with him. In doing so the primary judge took into account the applicant’s appropriate conduct at the contact centres over a period of three and a half years.
Her Honour also found that the respondent had anxieties surrounding the children spending time with the applicant outside professional supervision which could not be ignored. Dr I was asked by the respondent’s counsel how the time the children should spend with the applicant should be approached in light of the respondent’s hypervigilance and paranoia. The answer was: “I think by proceeding slowly, working towards incremental change.” Dr I’s evidence was accepted by the primary judge.
Her Honour concluded:
266.The Court must balance the benefits to be gained by the children from a gradual and incremental increase in the time they spend with their father as has been explained by Dr [I], against the perceived risks.
267.Dr [I] identified the mother’s anxieties surrounding the children spending time with the father and the risk that he would not be able to control his behaviour in the presence of the children as risks. She said of the risks:
I don’t think I have an unwavering confidence. I’m suggesting a very cautious approach to changing the supervision – to changing the arrangements for the father to have contact with the children. It’s not an unwavering confidence in the situation.
268.However, I accept the evidence of Dr [I] that the benefits to be gained for the children of moving into a more normalised relationship with their father and paternal family outweigh the recognised risks.
269.The regimes proposed by the ICL and by the father proceed too quickly and do not sufficiently safeguard the children or contain sufficient reassurance for the mother.
270.The mother’s proposal of indefinite supervision safeguards the children from physical and emotional harm but their time with the father will be sterile and they will be deprived of the richness of experience of the father and the paternal family.
I turn then to the application for extension itself.
Rule 1.14 of the Family Law Rules 2004 (Cth) (“the Rules”) permits the court to extend time to file a Notice of Appeal even after the time fixed for doing so has passed.
The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J 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: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. 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: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. 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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
As I have said, the orders were made on 6 June 2016. Rule 22.03 of the Rules required the Notice of Appeal to be filed by 4 July 2016 (and not 14 July 2016 as erroneously asserted by the applicant in his affidavit).
As to the delay, the applicant explained that at first he delayed, deliberating as to whether to appeal. The solicitor who had acted for him at the hearing before Rees J, Ms Lonsdale, then advised him that because of other commitments she would not be able to file a Notice of Appeal in time. The applicant does not say when he was so informed.
Ms Lonsdale did however remain involved in the primary proceedings. Issues arose from the respondent seeking to vary the orders so as to change the children’s school, the applicant’s behaviour at the children’s school and a change in supervisors (the paternal grandmother had gone overseas for a lengthy period) to which Ms Lonsdale was required to devote much time and attention. There was considerable correspondence with the respondent’s lawyers on these issues.
The applicant approached another solicitor, Ms S, who agreed to act pro bono to assist the applicant file a Notice of Appeal. Again the applicant does not say when this occurred.
The applicant does say, however, that on 27 June 2016 Ms S advised him that she was very busy but would file a Notice of Appeal within time. The applicant’s evidence continued:
A few days prior to the deadline, Ms [S] was forced to withdraw from the matter. It was impossible for me to finance and organise another solicitor and I believed that my opportunity to file an Appeal had been lost.
There is no explanation as to why Ms S did not file a Notice of Appeal or as to why she was forced to withdraw. She did not give evidence.
Ms Lonsdale then offered to help but, according to the applicant, was delayed by organising the consent orders to provide for the change of supervisors. Those orders were filed on 28 August 2016.
The present Application in an Appeal was therefore filed some eight and a half weeks after the Notice of Appeal should have been filed.
I do not regard the explanation of the delay as satisfactory. The evidence concerning the involvement of Ms S is vague and cursory.
It is not clear from the evidence when Ms Lonsdale accepted instructions to prepare the draft Notice of Appeal and the present application. It is difficult therefore to assess whether these documents were prepared promptly after that time. Ms Lonsdale has not given evidence and hence there is no explanation about the cause of the delay from the time she agreed to act in relation to this application and the appeal.
The applicant submitted that he was an under-resourced litigant who was obliged to deflect his resources to the other significant issues that he was facing – the change of school and supervisors in particular. That may be so but ultimately it is up to him to determine his priorities. It is clear that the appeal was not the main focus of his resources. It is clear, however, that Ms S was acting pro bono and thus not diminishing the applicant’s financial resources. As I have said, there is no explanation as to why, having agreed to prepare the Notice of Appeal, she did not do so and was forced to withdraw.
I note that the delay is extensive and that neither the delay up to the time when the Notice of Appeal should have been filed nor the delay in filing this application after that date have been adequately explained.
The applicant submitted that any weakness in his explanation for the delay was more than overcome by the merits of the appeal which he submitted raised significant legal issues of importance concerning the interplay between the role of an expert and the application of the legislative framework. It is to a consideration of these merits that I now turn.
The applicant dealt with the first four grounds as one topic. I understand the grounds to raise the following issues:
·Did the findings of the primary judge give rise to the need for protection of the children?
·If so, what is the nature and content of the risk so articulated?
·Is there any connection between this risk and the orders?
·Was there any independent assessment of the risk by the primary judge (it was submitted that her Honour had permitted the single expert to usurp the role of the primary judge and that the primary judge had abrogated her role to the expert)?
The applicant’s contention was that the answer to each of these questions was “no”.
As the applicant’s submissions were developed, it became clear that the point was that as the primary judge had not identified any unacceptable risk of harm to the children at the hands of the applicant, there was no basis for ordering the time they were to spend with him to be supervised.
I have already referred to the primary judge’s findings as to the violence of the applicant and to Dr I’s opinion that if the respondent’s account of the violence were accepted that contact between the children and the applicant should be limited.
Nonetheless, her Honour found:
230.I accept the evidence of Dr [I] that the lengthy period of supervision has been sufficient for the father to demonstrate that he has behaved appropriately with the children.
231.Whilst the mother will be anxious about any relaxation of supervision, her anxiety is a product of her past experiences with the father and not his present conduct.
232.I accept the evidence of Dr [I] that a slowly graduated regime, leading to the children ultimately spending alternate weekends with the father is not entirely free of risk. However I also accept her evidence that the risks, when balanced against the benefits of the children’s relationship with their father and their paternal family being normalised and enriched, are acceptable.
The risk referred to was described by the primary judge as:
242.The father has, in the past and particularly before the AVO, acted wilfully and irresponsibly and without regard to the effect of his actions on the mother or on the children.
243.I accept that he now has some understanding of the effect of his actions but I remain far from convinced that he really understands why his behaviours were unacceptable.
244.The father has been receiving counselling from Dr [G] for some years and continues to do so. He understands the language of family violence, readily using expressions such as “coercive and controlling”. However, when asked to describe behaviour by him which fell within that definition, he was unable to do so.
245.Throughout his evidence, he continued to justify his behaviours in the past by reference to the mother’s alleged failures.
246.I accept the evidence of Dr [I] that it is unlikely that the father has experienced characterological change and that the father’s need for control is now likely to carry over into his relationship with the children.
Thus, the primary judge did not make a finding that the applicant posed an unacceptable risk of harm to the children. Rather, the finding was that there is a concern that there is a risk, but not an unacceptable one, that the children would be exposed to his controlling and possibly violent behaviour.
That conclusion follows unremarkably from her Honour’s finding to which I have referred. It was not submitted that those findings were not open on the evidence.
There were two further bases for providing for an initial period of supervision.
First, the views and needs of the children justified a period of supervision. The primary judge said:
217.The children told Dr [I] that they would like to see their father again. They also expressed a wish to spend time with their cousins. The children have also, in the past, told their mother that they did not want to go to see their father. However, the mother remains of the view that they should see him and have a relationship with him.
218.This is not a matter where the children’s wishes are determinative. They have not spent unsupervised time with their father since late 2012 and their views, such as they are, have been formed in the limited and difficult situation of supervision and against the background of their mother’s anxiety about their spending time with their father.
Secondly, a period of supervision was justified so as to reassure the respondent that the children were safe with the applicant. It is to be recalled that the respondent had been described as hypervigilant and paranoid about the applicant. Her Honour found:
255.The mother’s anxieties surrounding the children’s spending time with the father outside of professional supervision are real and cannot be ignored. They may not, however, be objectively reasonable.

These three considerations led to the conclusion, which I have quoted in [15] above.
Such a course of reasoning is entirely apt. A consideration of family violence is not limited to identifying whether there is a need to protect the children from an unacceptable risk of harm although a consideration of the violence was relevant here in the manner described. It is also a relevant matter to be taken into account in determining what is in the best interests of the children (s 60CC(3)(j)).
It is also to be recalled that the applicant himself proposed that the initial period that the children were to spend with him occur in the presence of the paternal grandmother. It is not at all obvious that this is different to supervision as there would be no point otherwise. That was a significant albeit appropriate concession, but one which undermines the strength of these grounds. It makes it difficult to complain on appeal of the imposition of supervision (Metwally v University of Wollongong (1985) 60 ALR 68). Further, a person who seeks to challenge a discretionary decision faces a high bar (Gronow v Gronow (1979) 144 CLR 513).
Importantly, however, as I have endeavoured to explain, the fundamental premise of these four grounds, which was that there was a finding that the father posed an unacceptable risk of harm to the children, was misconceived as there was no finding to that effect.
Finally, an expert witness is permitted to express an opinion on the ultimate issue in the proceedings (s 80 Evidence Act 1995 (Cth)). It is a matter for the primary judge as to whether all, or any part, of a witness’ evidence, including an expert witness’s evidence, is accepted.
Thus, in an entirely orthodox way, the primary judge considered and generally, but not entirely, accepted the expert’s evidence. I do not see that course involving an abrogation of the court’s duty.
I conclude that the prospect of success on these grounds is poor.
Turning to grounds five and six, the applicant submitted that these grounds raised the failure of the primary judge to take into account the fact that there had been no instances of family violence since the relationship between the parties ended.
That was not the case. The primary judge found that such violence had occurred for at least two years after the relationship ended. Indeed, that finding is the subject of ground seven of the appeal.
Further, the primary judge was well aware that events of violence had lessened over time. A significant factor taken into account in the applicant’s favour was his appropriate behaviour towards the children over the previous three and a half year period.
It is difficult to see any merit in these grounds.
Ground seven is that the primary judge failed to consider all the evidence when she found that the applicant continued to harass the respondent after an Apprehended Violence Order (“AVO”) was made against him on 24 October 2013. It was submitted that a transcript of a subsequent hearing in the Local Court as to whether the AVO should be extended (it was not) showed that the respondent’s evidence on this issue could not have been accepted by the court.
It is true that the primary judge did not refer to this transcript. However it is well established that a primary judge need not refer to every piece of evidence: see, for example, Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 at 464; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 259.
After referring to the respondent’s allegations the primary judge concluded:
144.These allegations were put to the father in cross-examination. He denied any involvement. When it was suggested to the father that the mother had produced her telephone records and that he could be satisfied that she had received calls, the father’s explanation was that the mother had probably obtained a mobile phone, registered it to a false name and address and made the calls to herself. The more likely explanation is that the father, or his associates, made the calls as the mother alleged. There is no reason to doubt the mother’s identification of the father as perpetrator, other than his denials. However the father denied other allegations in cross-examination which he was forced to concede when shown documents. I accept the mother’s evidence of the father’s behaviour after the AVO.
145.Dr [I] in her oral evidence, said that controlling behaviour, in the context of a relationship, takes time to abate after the end of the relationship. It would appear that the behaviour of the father towards the mother, after the end of the relationship, has been consistent with Dr [I’s] assessment.
I was not taken to the transcript and am therefore unable to conclude that it constitutes incontrovertible evidence that these findings, based at least in part on credit findings, were not open to her Honour (Fox v Percy (2003) 214 CLR 118). I am therefore unable to find that there is significant merit in this ground.
The final ground is that the primary judge failed adequately to consider the impact of imposing a restraining order on the applicant at the time of the changeover. The imposition was relatively minor – not to be within 500 metres of changeover unless it occurred at a contact centre. The point was to keep the applicant and respondent apart. In the light of the applicant’s previous behaviour to the respondent it is not difficult to see why the order was made.
Taking all these matters into account I consider that the merits of the proposed appeal are not high and that the prospects of its success are poor.
The applicant submitted the respondent would suffer no hardship if an extension of time was granted. It is true that she points to no particular prejudice but she has a vested right to maintain the orders now that the period for filing an appeal has lapsed.
The question is, then, whether the interests of justice dictate that the orders sought should be granted, or in other words, whether there would be an injustice if they were not. Having regard to the considerable delay in commencing these proceedings, the less than satisfactory explanation for not filing a Notice of Appeal in time and for the delay in filing this application and the poor prospects of success, I am not satisfied that there should be any extension of time.
The Application in an Appeal will be dismissed.

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 8 November 2016.

Associate:

Date: 8 November 2016