Akhtar & Gaber (No 3)
[2018] FamCAFC 208
•2 November 2018
FAMILY COURT OF AUSTRALIA
| AKHTAR & GABER (NO. 3) | [2018] FamCAFC 208 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time - Where the applicant attempted to file his Notice of Appeal on a number of occasions – Where these attempts were within the time frame – Where for various reasons the attempts to file the Notice of Appeal were unsuccessful and therefore not filed in time – Where correspondence between the applicant and the appeals registry was considered – Where the applicants explanations for the delay in filing the Notice of Appeal are accepted – Where the merits of the appeal are considered in line with the documents available the Court – Where the applicants challenges as to procedural fairness and the primary judges failure to accept evidence are not in dispute – Where there is no substantial issue to be raised on appeal - Where the granting of an extension of time to appeal would be futile – Where injustice would be caused to the respondent mother and children – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth), r 22.03 |
| Akhtar & Gaber (No. 2) [2018] FamCAFC 176 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38 |
| APPLICANT: | Mr Akhtar |
| RESPONDENT: | Ms Gaber |
| FILE NUMBER: | PAC | 3652 | of | 2013 |
| APPEAL NUMBER: | EA | 124 | of | 2018 |
| DATE DELIVERED: | 2 November 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 9 October 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 July 2018 |
| LOWER COURT MNC: | [2018] FamCA 525 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Kouchoo solicitor |
| SOLICITOR FOR THE RESPONDENT: | N J Papallo Lawyers |
Orders
The application to extend time in which to appeal against the orders of Hogan J made on 16 July 2018 is 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 Akhtar & Gaber (No. 3) 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 124 of 2018
File Number: PAC 3652 of 2013
| Mr Akhtar |
Applicant
And
| Ms Gaber |
Respondent
REASONS FOR JUDGMENT
On 16 July 2018 Hogan J made parenting orders as between Mr Akhtar (“the father”) and Ms Gaber (“the mother”) concerning their two children, born in 2004 and 2007. The effect of her Honour’s orders was that the mother have sole parental responsibility for the children (but for the issue of the children’s names), that they live with her and that they spend time with the father according to their wishes. Her Honour’s orders envisage the father receiving copies of the children’s school reports and that he be informed of any major medical issues concerning the children.
The father did not appear at the hearing before her Honour and the orders were made ex parte.
The father attempted to file an appeal against her Honour’s orders well within the time specified however for a variety of reasons those attempts were unsuccessful with the result that the father’s Notice of Appeal was not filed within time.
The relevant principles to be applied in deciding whether it is appropriate to extend time for lodging an appeal are to be found in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to:
·whether there are adequate reasons which explain the delay;
·whether there is a substantial issue to be raised on appeal;
·the history of the proceedings;
·the conduct of the parties to the proceedings;
·the nature of the litigation; and
·the consequence for the parties of the grant or refusal of the application.
Explanation for the delay:
The application to extend time in which to appeal was filed on 26 September 2018. The time by which the Notice of Appeal should have been filed elapsed on 13 August 2018. The father’s affidavit in support of the appeal merely repeats the asserted grounds of appeal and gives no indication as to why the appeal was not brought within the time specified in r 22.03 of the Family Law Rules 2004 (Cth).
During the hearing the father said he had made several attempts to file a Notice of Appeal, the first attempt being in August 2018, well within the time provided for bringing an appeal. He said that on those occasions his Notice of Appeal was rejected by the appeals registry.
In order to understand the circumstances in which time elapsed notwithstanding the father’s attempts to file a notice of appeal, with the father’s permission I considered the documents and correspondence between the father and the appeals registry. It is clear that the father did indeed make unsuccessful several attempts to file a Notice of Appeal. It is easy to understand his frustration at not being able to file his Notice of Appeal within time however it must be recalled that necessary procedural requirements in relation to filing appeals must be applied equally to all parties, whether represented or not.
The father’s delay in bringing the appeal is explained at least to this extent by his inability to formulate a proper Notice of Appeal and I am prepared for present purposes to accept that he has offered an explanation for the delay.
The exercise of discretion also involves an assessment of the prospects of a successful appeal, that is whether there is a substantial issue to be raised on the appeal. This requires a consideration of whether the appeal is “arguable”. It will be readily understood that the determination of merit of an appeal for this purpose is usually confined by the documents available to the court on the application.
The draft Notice of Appeal contains 21 challenges to the primary judge’s decision. The father drafted the Notice of Appeal himself and English is not his first language, however, doing the best I can I understand the grounds assert:
·Denial of procedural fairness;
·Errors of Law – Her Honour:
oDid not have proper knowledge of the parenting case;
oHad no exposure to any of the materials filed and presented to the Court over the four years of litigation;
oDid not ask why the father “vacated” the hearing;
oDid not refer to any affidavit filed by the father nor refer to any existing documents filed in relation to the parenting case;
oDid not:
“tests or challenged [sic] any of the allegations or statements or claims made by the [mother] against the [father] to support his [sic her] finding and to legitimise his orders [sic her]”
oBased her knowledge and information on “two dubious, inaccurate, unsubstantiated family reports” in respect of the best interest of the children;
oDid not question the Independent Children's Lawyer how the allegations were tested, investigated, what method used to asses them;
oDid not question the Independent Children's Lawyer about any substantiated claims or any evidence against the [father];
oDid not question the accuracy, correctness and truthfulness of the Independent Children's Lawyer’s recommendations;
oDid not challenge the family report writer how she could in a short interview she could make any decisions or recommendation effecting [sic] the future relationship of the children with their father;
oDid not question the validity of those reports after nearly two years;
oGave too much weight to the two family reports “void of objectivity and accuracy” and questions her Honours fair and correct judgment;
oDid not know that the children’s attitudes in the reports were reflections of the mother coaching them to not want to see their father;
oDid not identify the issues necessary for determination;
oDid not specifically refer to any particular aspect of the family report;
oDid not refer to the order sought by the father;
oDid not explain why the transcript referred to was only an extract and:
“Why the repeated refusal of the father not attending the final hearing before his appeal be heard and was included in the TRANSCRIPT was not properly presented at the hearing”
(As per the original).
oDid not consider that issuing passports for the children could affect them when visiting countries with some radical ideology and propaganda which could have great negative effect on them; and
oDid not consider who will guarantee the safe return of the children back to Australia after going overseas considering the absence of bilateral agreements with most Asian countries in respect to child abduction.
Before turning to a consideration of the grounds, it is useful to understand that it has been the father’s position articulated in a number of ways that he would not contemplate the hearing of the parenting matters while ever there was on foot his appeal against certain procedural orders. Some background to the proceedings is necessary and is conveniently taken from the reasons of the Full Court in Akhtar & Gaber (No. 2) [2018] FamCAFC 176 delivered on 14 September 2018.
On 25 May 2017 the father filed an application seeking interim orders that the two children spend “unrestricted, unlimited and unsupervised” time with him, such time to include weekends, most of the school holidays and on public holidays. The application also sought orders in relation to the validity of his marriage and in relation to the enforcement of a property settlement agreement.
The matter came before a Senior Registrar on 9 August 2017 who ordered that:
1.The father’s case application in relation to parenting issues filed on the 25th May 2017 is withdrawn and dismissed.
The Senior Registrar also made costs orders in the mother’s favour.
The father was legally represented on 9 August 2017 before the Senior Registrar.
The matter next came before Foster J on 13 November 2017 who made orders to list the parenting matter for final hearing, anticipated to be in May or June 2018. On that same day, Foster J extended time in which the father could bring an application to review the Senior Registrar’s orders made on 9 August 2017 to “no later than Wednesday, 29 November 2017”.
An application for review was duly filed on 23 November 2017 and was made returnable on 15 February 2018. It was uncontentious that by this application for review, the father was seeking to press his interim application for parenting orders that he spend time with the children.
On 19 February 2018 the matter was again before Foster J who ordered that the father’s application for review of the Senior Registrar’s orders be consolidated with the principal parenting proceedings in respect of which his Honour had made directions on 13 November 2017.
The father appealed those orders and the appeal was heard and determined on 14 September 2018.
In the course of delivering the reasons for dismissing the appeal, after observing that given the final hearing date for both applications was some three or four months later, it was difficult to imagine the court finding time in which to hear the application for review before the final hearing. Aldridge J on 14 September 2018 said and with which the other members of the bench agreed:
17. 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.
18. 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.
Thus leave to appeal was refused.
However, on 16 July 2018, Hogan J heard and determined the parenting proceedings notwithstanding the father’s absence. It was clear from the father’s submissions on appeal that he regarded it as imperative that the appeal be heard first and in those circumstances, did not attend the hearing before the primary judge.
It is against her Honour’s orders that the father now seeks to appeal.
The primary judge’s reasons
Her Honour considered the father’s absence at [6], her Honour concluded that the father was aware of the proceedings listed for that day and that he had determined not continue to seek parenting orders. Her Honour referred to statements made by the father in the course of an appearance before Foster J on 18 June 2018 in which he said:
No. No. I am not paying fee of the court – court fee, and I’m not paying money to these people. And I’m not selling my home. Just coming here to defend my children. I am just giving up. You can make an order right now that the father has given up and finish. The final hearing has gone.[1]
[1] Extract of transcript of proceedings of 18 June 2018 from 12:32pm, page 9, lines 13-16.
Her Honour further noted at [7] that while the father, in effect, said to Foster J that he could proceed and make final parenting orders on that day, his Honour demurred saying that he would leave that to the final hearing.
Further, the primary judge considered that it was in the children’s best interests that there be finality to the proceedings and thus concluded the hearing in the father’s absence (at [9]).
As to the substantive proceedings, her Honour observed at [1] that she had received written submissions prepared by the Independent Children's Lawyer which provided “a very helpful overview of the proceedings between these children’s parents”. Her Honour further read two documents prepared by a Family Consultant, one following interviews with the parties and the children in December 2016. The same consultant had prepared a further report dated 15 February 2017 again following interviews with the parties and the children.
Her Honour noted that, apart from the two occasions on which the parties were interviewed with the children for the purposes of the preparation of the reports, the children had not spent time with the father since 2013 (at [4]).
Her Honour said:
3. … I accept the opinions expressed by Ms C in the Family Report. I also note, in particular, the concerns she has identified about the father’s capacity to parent the children; her recommendation was to the effect that, if it were determined that it is in the children’s best interests to spend time with the father, such time commence on a supervised basis, before moving to no more than daytime time on an unsupervised basis.
…
10. On the evidence before me, I am persuaded that the orders proposed by the Independent Children’s Lawyer by way of final order are orders that are in the children’s best interests, given the contents of the reports which contain a record of the children’s attitude toward spending time with the father and that they have been parented primarily by their mother, particularly since the parental separation in no later than 2013. It is also clear that they have spent no time with their father since that date.
11. The issues raised in the mother’s evidence, as discussed in the Family Report, certainly persuade me that the most appropriate orders, and those which are in the children’s best interests, are those which enable them the opportunity to spend time and communicate with their father if they express such a wish to do so in the future; the orders proposed by the Independent Children’s Lawyer leave open that opportunity.
Her Honour considered the other orders proposed by the Independent Children's Lawyer and discussed how those proposed orders, in her view, met the children’s best interests. She therefore made the orders from which the father now seeks to appeal.
Failure to afford procedural fairness.
By this ground, the father challenges her Honour’s proceeding to hear and determine the parenting proceedings in his absence.
In Taylor v Taylor (1979) 143 CLR 1 at 4 , Gibbs J said, referring and adopting what was said by Rich J in Cameron v. Cole (1944) 68 CLR 571, at p 589:
It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.
In Allesch v Maunz (2000) 203 172 Kirby J said in relation to this principle:
38. … it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
(footnotes omitted)
There is no dispute that the father knew the parenting proceedings were listed for final hearing on 16 July 2018. He did not appear, insisting instead on pressing the appeal against the orders of Foster J consolidating his application for review with the principal parenting matter.
Errors in the primary judge’s consideration
As indicated above, the father challenges her Honour’s acceptance of the evidence before her in a series of grounds which do not need to be repeated here. Her Honour is not obliged to go behind evidence and challenge or question the unchallenged and unquestioned. Where evidence is uncontradicted and is not otherwise inherently improbable or inherently incredible, and where the other party has not elicited in cross-examination or led in evidence some material to overcome it, either by proving the contrary or throwing the matter into doubt, it should be accepted (see Purkess v Crittenden (1965) 114 CLR 164 and Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 561 per Kirby P).
The father chose not to attend the hearing where he could have raised all of the matters now sought to found a challenge to her Honour’s assessment of the evidence before her. He did not. It is difficult to understand how the father can assert that the evidence on which her Honour relied was such that it ought not have been accepted by her, notwithstanding he did not challenge it.
The balance of the challenges to her Honour’s orders raise matters which, had the father been present at the hearing, he could have asked her Honour to consider, for example guaranteeing the return of the children from any proposed overseas holiday and the proposed destinations of such a trip. Having not done so, the father faces serious obstacles in raising them on appeal (see Coulton v Holcombe (1986) 162 CLR 1 at 7-9).
Thus in my view, there is no substantial issue to be raised on appeal and to grant an extension in which to appeal would be futile. It would further work an injustice on the mother who is entitled to understand that the appeal period having expired, the proceedings were then brought to an end, and, finally as the primary judge noted, the best interests of the children are served by finality of the proceedings.
Therefore the application for an extension of time in which to appeal will be dismissed.
I certify that the thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
2 November 2018.
Associate:
Date: 2 November 2018
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