Akhtar & Gaber (No. 2) - [2018] FamCAFC 176

FAMILY COURT OF AUSTRALIA

AKHTAR & GABER (NO. 2)

[2018] FamCAFC 176

FAMILY LAW – LEAVE TO APPEAL – Procedural orders – Application for leave to appeal from an order consolidating applications and fixing them for hearing – Leave refused.

FAMILY LAW – APPEAL – COSTS – Where the application for leave to appeal was wholly unsuccessful – Where the application was an abuse of process – Indemnity costs ordered.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 94AA
Family Law Regulations 1984 (Cth) reg 15A(2)
Family Law Rules 2004 (Cth) r 18.08

Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
D & D (Costs) (No.2) (2010) FLC 93-435; [2010] FamCAFC 64
Kohan and Kohan (1993) FLC 92-340
Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207

APPELLANT:

Mr Akhtar

RESPONDENT:

Ms Gaber

FILE NUMBER:

PAC

3652

2013

APPEAL NUMBER:

2018

DATE DELIVERED:

14 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Watts JJ

HEARING DATE:

14 September 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT ORDERS MADE:

19 February 2018

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr R Kouchoo solicitor

SOLICITOR FOR THE RESPONDENT:

N J Papallo Lawyers

Orders

The application for leave to appeal the orders of Foster J made on 19 February 2018 is dismissed.
That the appellant pay the respondent’s costs of and incidental to the application for leave to appeal on an indemnity basis in the sum of $3,777.72, such costs to be paid within 28 days of this order.

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 (No. 2) 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 33 of 2018
File Number: PAC 3652 of 2013

Mr Akhtar

Appellant

And

Ms Gaber

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

Introduction

By an Amended Notice of Appeal filed on 5 April 2018, Mr Akhtar (“the appellant”) appeals from the following orders made by Foster J on 19 February 2018 in parenting proceedings between him and Ms Gaber (“the respondent”):
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 parties’ two children, born in 2004 and 2007, spend “unrestricted, unlimited and unsupervised” time with him, including “weekends 9-5pm” and most of the school holidays as well as public 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 25^th 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.
These orders indicate that the father did not proceed with his interim parenting application which was dismissed. He was legally represented before the Senior Registrar on 9 August 2017.
On 13 November 2017, the primary judge made orders to fix the parenting proceedings for final hearing which was anticipated in May or June of 2018, six to seven months away. On the same day, his Honour extended the time in which to file the Application for Review to “no later than Wednesday, 29 November 2017”. 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)). Clearly, the appellant was well out of time.
The application was filed on 23 November 2017 and given a return date of 15 February 2018. It is apparent from the affidavits filed in support of it that the father was seeking to re-agitate his interim parenting application. It came before the primary judge on 19 February 2018 when the orders the subject of the appeal were made.
On 16 July 2018, Hogan J heard the parenting proceedings and made final orders. Those orders provided that the children were to live with the respondent who was to have sole parental responsibility for them (save as to the issue of their names). An order provided that the children shall spend time and communicate with the appellant in accordance with their wishes.

Leave to appeal

The appellant correctly accepts that he needs leave to appeal because although the substantive proceedings concern a child welfare matter (as defined in reg 15A(2) of the Family Law Regulations 1984 (Cth)), the order actually appealed against is an interlocutory order relating to practice and procedure: namely, the consolidation and fixing of an interim application for hearing. As such, leave is required (see Tallant & Kelsey (2016) FLC 93-742 at [7]).
In Medlow & Medlow (2016) FLC 93-692 the Court held that the test to be applied in applications for leave to appeal under s 94AA of the Family Law Act 1975 (Cth) (“the Act”) is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (at [57]). The discretion given by s 94AA is unfettered and, in appropriate cases, where the interests of justice demand it, leave to appeal can be given even if the test is not otherwise met.
As I have said, the order the subject of the appeal is an order of practice and procedure. Applications for leave to appeal against such orders face a high bar.
In Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 177 Gibbs CJ, Aickin, Wilson & Brennan JJ said:
We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.):
“ … I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
(Footnote omitted)
Having granted the appellant an extension of time in which to seek to review the Senior Registrar’s decision, the primary judge determined to hear it at the same time as the application for final orders. This was anticipated to take place some 3 to 4 months later. Quite when the Court would have been able to find a hearing date for the interim applications that would be any earlier than the proposed dates for the final hearing is not at all obvious. The effect of the order was not to deny the appellant the right to have his review application heard. It was to simply fix the hearing of the review application for the same time as the final hearing.
In his Summary of Argument the appellant submitted (as per the original):
13. His Honour by SUDDEN POSTEPONEMENT of the APPEAL, on 19 FEBRUARY 2018, remove an earlier CHANCE of an earlier contact of the Father, Sibling with the children. This action was clearly AGAINST THE BEST INTEREST OF THE CHILDREN and a clear ERROR IN LAW.
14.The respectful trial Judge was fully aware that an Appeal will not be heard at the final hearing, because at the final hearing all the previous order would be put aside and dismissed. Therefore CONSOLIDATING the Appeal at the final hearing was a SUGAR COATED LIES and DECEPTION to the Appellant giving him a FALSE HOPE that his Appeal would be heard at the final hearing. and FALSELY BELIEVING that his rights of Appeal will be respected. This action of the Trial Judge is obviously if not an error of fact or of Law is a DECEITFUL ACT.
I do not propose to refer to the balance of the Summary of Argument, which descends into insult and abuse.
Contrary to the submissions of the appellant, the procedural orders were not parenting orders to which the provisions of ss 60CA and 60CC of the Act applied. The primary judge was not required to take into account the best interests of the children.
It is difficult, if not impossible, however, to see how it would be in the best interests of the parties or the children for there to be an interim parenting hearing followed only a few weeks later by a final hearing. There would be no point in changing the parenting arrangements only a few weeks before a final hearing unless there were compelling reasons for doing so. The appellant does not point to any. Any such change would be likely to be confusing and upsetting for the children, especially if that arrangement was to be varied only a few weeks later.
Moreover, an interim hearing followed very shortly thereafter by a final hearing would not be an efficient use of the parties’ resources or of the Court’s resources. With respect, the order that was made seems to be the only sensible order that could have been made in the circumstances.
Therefore, not only is the order of a kind that normally would not attract leave to appeal, it is difficult to see that the decision to make the order is attended by any doubt, let alone sufficient doubt, to warrant it being reconsidered by this Court.
It is difficult to identify any miscarriage of justice. At both an interim and final parenting hearing, the Court makes orders that it considers to be in the best interests of the children. The difference is that at a final hearing the court is able to resolve all disputed issues including disputed questions of fact.
The “appeal” was, in fact, a review of the Senior Registrar’s decision to dismiss the appellant’s Application in a Case. As such reviews are hearings de novo, the best outcome for the appellant would be the hearing of the interim application. That hearing would determine what orders would be in the best interests of the children, which is precisely what would occur at a final hearing. Thus the appellant did not lose his “right of appeal”.
There is one final matter to take into account. The final proceedings, which included the consolidated Application in a Case and Application for Review, have been heard and determined. There is now no utility whatsoever in the hearing of an interim application for parenting orders. The parenting issues between the parties have been settled by the orders of Hogan J made on 16 July 2018.

Conclusion

This appeal is entirely futile and indeed, in my view, is an abuse of process given those orders. It follows that, in my opinion, there is no basis for a grant of leave and I propose that the application for leave to appeal from the orders of the primary judge made on 19 February 2018 be dismissed.

Watts J

I agree with the orders proposed by Aldridge J and the reasons that he has given.

Ainslie-Wallace J

I too agree with the order proposed by Aldridge J and the reasons he has given.

Aldridge J

Costs

The application for leave having been dismissed, the respondent now seeks an order for costs of the application for leave assessed on an indemnity basis in the sum of $3,777.72.
The application has been wholly unsuccessful and it is appropriate that the appellant pay the respondent’s costs.
As to whether those costs should be paid on an indemnity basis, the authorities establish that such an award is only made in exceptional cases (Kohan and Kohan (1993) FLC 92-340 at 79,614; Limousin v Limousin (Costs) (2007) 38 Fam LR 478; D & D (Costs) (No.2) (2010) FLC 93-435). One recognised category of cases in which it is appropriate to award indemnity costs, however, is where the application or the proceedings are an abuse of process (see, for example, Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359).
The Court has found the present application for leave to appeal to be such, and in my opinion, having regard to the nature of the orders appealed against, it is appropriate that costs be assessed on an indemnity basis. I propose an order accordingly.

Watts J

I agree with the costs order proposed by Aldridge J and the reasons he has given.

Ainslie-Wallace J

Having heard the reasons of Aldridge J, I too agree with the costs order proposed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Watts JJ) delivered on 14 September 2018.

Legal associate:

Date: 9 October 2018