Akhtar and Gaber
[2018] FamCAFC 56
•15 March 2018
FAMILY COURT OF AUSTRALIA
| AKHTAR & GABER | [2018] FamCAFC 56 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the applicant seeks the expedition of his appeal from procedural orders – Where a final hearing of the proceedings is imminent – Where the Notice of Appeal does not identify error on the part of the primary judge – Application for expedition dismissed – Applicant ordered to file an Amended Notice of Appeal – Applicant to pay the respondent’s costs of the application. |
| Family Law Act 1975 (Cth) ss 4, 94AA, 94 Family Law Regulations 1984 (Cth) reg 15A Family Law Rules 2004 (Cth) r 12.10A, 18.08 |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 |
| APPELLANT: | Mr Akhtar |
| RESPONDENT: | Ms Gaber |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 3652 | of | 2013 |
| APPEAL NUMBER: | EA | 33 | of | 2018 |
| DATE DELIVERED: | 15 March 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 15 March 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT ORDERS MADE: | 19 February 2018 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Moradshahi Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
The father’s Application in an Appeal filed on 8 March 2018 be dismissed.
The Applicant pay the Respondent’s costs of this Application fixed in the amount of $650.
The Applicant file and serve on or before 12 April 2018 an Amended Notice of Appeal from the orders of Foster J made on 19 February 2018.
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 Akhtar & Gaber 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 33 of 2018
File Number: PAC 3652 of 2013
| Mr Akhtar |
Applicant
And
| Ms Gaber |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
By an Application in an Appeal filed on 8 March 2018, Mr Akhtar (“the applicant”) seeks an order that this appeal be heard urgently. The appeal is against orders made by Foster J on 19 February 2018 in parenting proceedings between the applicant and Ms Gaber (“the respondent”).
The orders appealed from are:
1.The father’s Application in a Case filed 25 May 2017 and the Application for Review of the orders made by the Senior Registrar on 9 August 2017 be consolidated with the primary proceedings in respect of which trial directions were made on 13 November 2017.
2.The costs of the Independent Children’s Lawyer and the Respondent mother of today are reserved.
A notation recorded that it was likely that the proceedings would be allocated a final hearing date in May or June 2018.
The father’s Application in a Case filed on 25 May 2017 sought interim orders that the children spend unrestricted and unsupervised time with him including “weekends 9–5 pm” and most of the school holidays. Orders were also sought as to the validity of a marriage in Country B and the enforcement of a property settlement agreement.
The orders made by the Senior Registrar on 9 August 2017 were:
1.The father’s case application in relation to parenting issues filed on the 25th May 2017 is withdrawn and dismissed.
2.That the father pays the mother’s costs, in the sum claimed by the mother in the amount of $6050.00. The amount to be paid within 3 months.
I note that these orders indicate that the father did not proceed with his interim parenting application. He was legally represented that day. He asserts today that that application was withdrawn by his barrister because of pressure the barrister was placed under by the Senior Registrar. Be that as it may, the application was not proceeded with.
In any event, on 15 February 2018 the father filed an Application in a Case seeking a review of the Senior Registrar’s decision.
Any application for a review of the Senior Registrar’s decision had to be filed within 28 days of 9 August 2017 (r 18.08, Family Law Rules 2004 (Cth) (“the Rules”)). Clearly, the father was well out of time. However on 13 November 2017 the primary judge granted the father leave to file his application for review out of time. That application was to be filed no later than 29 November 2017. It was in fact filed, as I have said, on 15 February 2018 and no explanation as to that delay has been given.
The effect of the above is this. The children have not seen the father since 2013, according to him. He brought an interim application for orders for the children to spend time with him which he then withdrew but later sought to review and then did not file the review application within the time prescribed. This hardly speaks of a person keen to have parenting issues resolved quickly and promptly.
The primary judge has listed both the review application and the application for interim orders at the time of the final hearing which, in all likelihood, is imminent. Clearly, the primary judge had in mind, given the proximity of the final hearing, that it was not in the children’s interests or in the interests of justice for there to be an interim hearing shortly followed thereafter by a final hearing.
The appeal by the father challenged that order and seeks in lieu that the order for a final hearing be set aside and that there instead be an interim hearing. The effect of success on the appeal is to place at risk the final hearing. How an interim hearing as opposed to a final hearing is perceived to be in the interests of anyone, let alone the children, is beyond me.
Whilst it is not directed to appeals, r 12.10A of the Rules provides a useful guide to the matters to be considered on this application:
12.10AExpedition
…
(2)The court may take into account:
(a)whether the applicant has acted reasonably and without delay in the conduct of the case;
(b)whether the application has been made without delay;
(c)any prejudice to the respondent; and
(d)whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
…
(4)For paragraph (2)(d), a relevant circumstance includes:
(a)whether the age, physical or mental health of, or other circumstance (such as an imminent move interstate or overseas) affecting, a party or witness would affect the availability or competence of the party or witness;
(b)whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of, or affected by, the case;
(c)whether the applicant is suffering financial hardship that:
(i)is not caused by the applicant; and
(ii)cannot be rectified by an interim order;
(d)whether the continuation of interim orders is causing the applicant or a child hardship;
(e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed);
(f)whether the case involves allegations of child sexual, or other, abuse; and
(g)whether an expedited trial would avoid serious emotional or psychological trauma to a party or child who is the subject of, or affected by, the case.
The father has acted reasonably and promptly in bringing this application. There still, however, is an unexplained delay between the order made by the primary judge granting leave for the review application to be filed by the 29 November 2017 and its ultimate filing on 15 February 2018.
The conduct of the father in withdrawing the application, then seeking to review it, and the delays involved with that review that I have just described, cannot give any confidence in any timetables for an urgent appeal being complied with by him and, in any event, hardly supports an application for expedition.
The mother is facing an imminent final hearing which could be placed in jeopardy by an expedited appeal coming on for hearing at approximately the same time. I consider that to be prejudicial to her. That will also involve her in extra costs and stress and I infer any stress that she would be placed under would be likely adversely to affect the children. It is obvious that it would be in the best interests of the children, at the least, for the proceedings to be finalised as soon as possible. That consideration, of course, favours the early final hearing fixed by the primary judge. I also note that even if expedition were to be granted, it is unlikely that any appeal would be heard and determined in sufficient time to permit, in the event that the appeal is successful, an interim hearing taking place prior to the final hearing in June or July 2018. In other words, even a successful appeal is unlikely to result in an interim hearing taking place before the final hearing. This too does not support an application for expedition.
I turn now to the nature of the appeal. It is against essentially a procedural order. I note that issues are likely to arise as to whether the order fixing the hearing of the review is in fact a decree against which an appeal may be taken (s 94(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) and the definition of decree in s 4). Issues will also arise as to whether leave to appeal is required: s 94AA of the Act; reg 15A of the Family Law Regulations 1984 (Cth).
In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at [9] the High Court re-emphasised the importance of keeping a tight rein upon appeals from the exercise of discretion on a point of practice as opposed to those that determine substantive rights.
When one looks at the Notice of Appeal it can be seen immediately that grounds 1 and 2 are not in fact proper grounds of appeal because they do not identify error. Ground 2 asserts a denial of natural justice. When questioned by me this morning, the father said the denial of natural justice was not hearing the appeal. I do not understand at all what is meant by ground 4, which asserts that “[t]he adjournment of the appeal” is “an excusable and pseudo rational ground for dismissing the rights of the applicant”. The form of the Notice of Appeal does not, in my view, support the application for expedition and once I have determined this application I propose to make a direction that an Amended Notice of Appeal be filed.
If this application were to succeed, appeals currently awaiting a hearing date would be displaced. Many of them raise serious issues concerning the welfare of children. The welfare of the children of the parties in this matter will be considered at an imminent final hearing. Therefore I consider that there is no basis for displacing more urgent appeals involving substantive rights in favour of this appeal which is, in essence, against the fixing of a hearing date.
In short, all the relevant considerations point away from an order for expedition and the application is dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 15 March 2018.
Legal associate:
Date: 13 April 2018
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