Bant & Clayton
[2014] FamCAFC 108
•23 June 2014
FAMILY COURT OF AUSTRALIA
| BANT & CLAYTON | [2014] FamCAFC 108 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal – Where the delay is less than three months – Where should the application be refused the husband will have no opportunity to appeal final parenting orders - Where the husband alleges that the parties were contemplating reconciliation – Where the husband suffered health problems – Where there was a delay in instructing new solicitors – Where the explanation for delay is adequate despite gaps in time – Where the notice of appeal asserts grounds which appear arguable – Where the prejudice to the husband outweighs the prejudice to the wife - Where an extension of time is necessary to do justice between the parties – Application allowed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479 Tomko v Palasty (No. 2) [2007] NSWCA 369 |
| APPLICANT: | Mr Bant |
| RESPONDENT: | Ms Clayton |
| FILE NUMBER: | LEC | 310 | of | 2013 |
| APPEAL NUMBER: | NA | 12 | of | 2014 |
| DATE DELIVERED: | 23 June 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 5 May 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 November 2013 |
| LOWER COURT MNC: | [2013] FamCA 898 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC |
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | GJ Legal |
Orders
The applicant is granted an extension of time until 4.00pm on 30 June 2014 to file a notice of appeal against the orders of Kent J made on 19 November 2013.
The costs of this application are reserved to the Full Court determining the substantive appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bant & Clayton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 12 of 2014
File Number: LEC 310 of 2013
| Mr Bant |
Applicant
And
| Ms Clayton |
Respondent
REASONS FOR JUDGMENT
This application by Mr Bant (“the husband”) is for an extension of time to file a notice of appeal. The husband seeks to appeal final parenting orders made on 19 November 2013 by Kent J, relating to the parties’ four year old child, Y.
Rule 22.03 of the Family Law Rules 2004 (“the Rules”) provides that a notice of appeal must be filed “within 28 days after the date the order appealed from was made”. The husband filed the application and draft notice of appeal on 7 March 2014, less than three months after the time limit had expired.
Ms Clayton, the wife, opposes the application by way of response filed 30 April 2014.
The husband is a United Arab Emirates (“UAE”) national and the wife is an Australian citizen. The wife’s case in the proceedings before the trial judge was that the husband had “both the capacity and propensity to remove [the child] from Australia and return to the UAE with her” (at [39] of the judgment). Further, the wife asserts that if the child was to return to the UAE, the laws in that jurisdiction could significantly impede, or entirely end, her relationship with the child at the discretion of the husband.
The orders of 19 November 2013 were premised on the assumption that the husband would predominantly reside in the UAE and travel to Australia to see the child. Those orders provided, in summary, that:
·The wife and husband would have equal shared parental responsibility for the child, save that the wife would have sole parental responsibility for the location of residence and travel of the child;
·The child shall live with the wife;
·The husband shall communicate with the child by telephone or Skype on each alternate day;
·The child spend time with the husband as agreed between the parties upon 14 days notice and when the husband is in Australia;
·Failing agreement, the child shall spend time with the husband on alternate weekends and after school including overnight near the wife’s residence, conditional upon the husband providing 14 days written notice of his arrival and departure date and the husband’s lawyers confirming in writing that they hold the husband’s passport pursuant to an irrevocable authority until a specified date;
·Of particular significance, that the husband and his agents are restrained from removing the child from Australia or obtaining travel documents in respect of the child;
·The husband’s time with the child be at all times supervised by a commercial provider of supervision services; and
·The child is placed upon the “All Ports Watch Alert System” for a period of three (3) years.
This application is of a procedural nature as provided in s 94(2D)(a) of the Family Law Act 1975 (Cth). Should this application be refused, s 94(2F) provides that the husband will have no opportunity to appeal this decision and consequently, the orders of 19 November 2013. It is obvious that these are orders of a serious and restrictive nature, being final parenting orders which will operate until further order or the child attains the age of 18 years.
Principles in relation to an extension of time
The applicant relies upon the discretion to make an order extending the time to appeal as contained in r 1.14 of the Rules:
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
There is no specified criteria in either s 94(2D)(a) of the Act or the Rules for the exercise of discretion to extend time for the institution of an appeal.
The general principles for granting an extension of time in civil proceedings are well-known. McHugh J in Gallo v Dawson (1990) 93 ALR 479 considered them at 480:
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.
It is clear that the fundamental issue in this application is whether an extension of time to file a notice of appeal is necessary to do justice between the parties. Three factors have been identified in the cases about such extensions, as being indicative, but not determinative, of whether an extension of time should be granted:
·An adequate explanation for the delay;
·The proposed grounds of appeal having some merit; and
·That any prejudice to the respondent can be compensated by an order for costs.
It is also accepted that a failure to establish these factors is not of itself a bar to an application for an extension of time. See, for example, Tormsen v Tormsen (1993) FLC 92-392 at 80,018 where the Full Court held that fettering of judicial discretion is undesirable and the factors generally considered are not to be treated as legislative directions.
Is the delay explained
The reasons for the delay are described by counsel for the husband as being “multi facetted”. The first reason proffered is that the parties were contemplating reconciliation when the time limit expired. A further explanation is health problems asserted to have been suffered by the husband. Finally, there was a period of delay after the husband instructed new solicitors to prepare the appeal.
The husband sought to rely on extensive material filed in this application in support of his explanation for delay. It can be summarised as follows:
·An affidavit of the husband’s solicitor filed 7 March 2014 deposing as to the time taken to prepare this application.
·An affidavit of the husband filed 31 March 2014, some 300 pages in length. Annexures “B” – “N” to this affidavit are various undated photos of the husband, wife and child, the husband says they were taken between 16 October 2013 and 6 November 2013. Annexure “O” to the affidavit is a record of text messages exchanged between the parties on the “WhatsApp Messenger” application from 14 November 2013 through to 2 January 2014. Also annexed to that affidavit are some reports, certificates and test results prepared by the husband’s treating doctors.
·An affidavit of a medical practitioner filed 15 April 2014 who treated the husband on 12 December 2013. The husband complained of heart palpitations and discomfort. Annexed to that affidavit is a medical report diagnosing an anxiety and depression disorder.
·At the commencement of the hearing before me counsel for the husband filed by leave a further affidavit of the husband in response to the wife’s affidavit filed 30 April 2014. The husband deposes to the parties having resumed a sexual relationship in October 2013.
The wife relied upon written submissions filed on her behalf and an affidavit filed 30 April 2014. Annexed to that affidavit is a transcription of a conversation between the parties on “Skype” on 1 December 2013 and various pictures of the husband uploaded by him on social media.
The affidavit material provided by each party was voluminous. Each counsel insisted that careful attention be given to the private discussions between the parties as reproduced in their respective affidavits.
It is necessary to consider the husband’s explanations for delay in three time periods: after trial but before delivery of the judgment, after the delivery of the judgment but before the time limit expired, and after the time limit expired.
After trial but before delivery of the judgment: 15 October 2013 to 19 November 2013
The hearing before Kent J finished on 15 October 2013. Judgment was delivered on 19 November 2013. The evidence of the husband is that following the conclusion of the hearing, he formed the belief that he would, in his words, “eventually” reconcile with the wife.
The husband said in an affidavit filed 31 March 2014 that from 26 October 2013 until 6 November 2013 the wife and child resided with him at the former matrimonial home in Town B and subsequently an apartment in the Town G. He asserted that he and the wife resumed their sexual relationship and that he spent unsupervised time with the child whilst the parties engaged in marriage counselling. The husband lists various activities which he says the parties engaged in during this period. He annexes to his affidavit a number of undated photos the husband took on those days.
The wife, by way of affidavit filed 30 April 2014, denied that she ever wished to reconcile with the husband. She agrees that the parties stayed in the Town B property for two days, then the Town G apartment for four days from 2 November 2013. The wife agrees that the parties shared a bed (with the child) at some point during that period, but deposes that she never consented to the husband spending unsupervised time with the child. The wife asserts that although the parties did commence counselling, it was not for the purposes of reconciliation but related to their parenting post-separation.
The wife says in her affidavit:
Throughout this time (before he returned to Dubai on 6th November) I never specifically told [the husband] there were good prospects of a reconciliation of the marriage, I only ever wanted to have a better post separation parenting relationship. I was scared to be blunt about this as I feared his reaction.
The husband returned to the UAE on 6 November 2013. It is the husband’s evidence that the parties continued to communicate on a daily basis. It is clear that in some of those conversations reconciliation was discussed. The wife, in her affidavit, asserts that this record includes only part of the text message exchanged between the parties.
Although a number of interpretations are open, it can be seen that the exchanges between the parties between 14 and 19 November 2013 (contained in annexure “O”) to the husband’s affidavit of 31 March 2014 are indicative of parents attempting to remain cordial and child focused. It is clear that the husband is at least hopeful that they will, in his words, “all be a family again”. The husband’s attempts to persuade the wife to reconcile with him become more desperate throughout the records, on occasion resorting to aggression. The wife, at this point in time, appears to be largely unresponsive to the majority of these messages.
The husband deposed in his affidavit filed by leave at the commencement of the hearing that the parties had resumed their sexual relationship on or about 23 or 24 October 2014. Counsel for the wife indicated that there was agreement that the parties had engaged in “sexual activities between the parties, absent intercourse” (ln 27 – 28, p 9 of the transcript) around that time.
After the delivery of the judgment but before the time limit expired: 19 November 2013 to 17 December 2013
On 19 November 2013 the judgment was delivered.
On 26 November 2013 the husband attended upon a doctor in Dubai complaining of chest pain. Certain tests were performed, with “all results within normal limits”.
On 28 November 2013 the husband’s messages to the wife became aggressive. He demanded an answer as to whether the parties would reconcile. On 6 December 2013 the parties had an argument for over an hour regarding their relationship. At that time the husband told the wife: “I need your answer before or on the 16th of this month”.
Counsel for the wife placed significant emphasis on transcribed portions of a “Skype” conversation between the parties on 1 December 2013, which the wife had presumably recorded. Counsel for the husband conceded the accuracy of the transcript. The transcript records that the husband demanded that the wife move out of the former matrimonial home and tells her that he never wanted to see or speak to her again. The husband says that he would “appeal and … go for the properties straight away”. Thus, the wife’s case is that the husband could not have genuinely thought reconciliation possible after 1 December 2013.
On 7 December 2013 the parties had a conversation via text message regarding whether the husband intended to appeal the final parenting orders, excerpted below:
[husband]: I miss u … And I still love u
[wife]: R u wanting to appeal and go back to court, is what why u have set a dead line of 16th to have everything sorted?
[husband]: No… I’m not doing anything legal and 16th is not about that
…
[wife]: U said on Skype the other day that u wanted to appeal … and 16th is the 28 days for appeal… the date u picked and that is the exact time to appeal, like you mentioned
…[husband]: I didn’t know there was a time to appeal in the case… Fine make it 17th or 18th or 20th if that’s going to make u feel better … Can u send me where it says the date is 16th for appeal… At least on what page?... And no it had nothing to do with it… And if ur the one who’s trying to wait after that date to make a decision… Then I’m fine with that.
An inference can easily be drawn from this exchange that both parties were or became aware of the approaching time limit on 7 December 2013. On 16 December 2013 the husband sent the wife the following message:
Just a reminder . Today is the 16th and I know I wanted to hear from you on our status. As you pointed out that it’s also the last day for an appeal I changed the date to the 19th so you can rest assured that I have no intention to do so. I would appreciate an answer whenever you can during that period…
The wife responded the following day:
I am sorry I can’t say I feel clear about anything. I wish I was as straight and clear about things as u always …are but I never am. I am thinking about things all the time. I’m going through so many emotions and wish I felt clear for your sake even more than mine.
… I do love you. I am suffering that things have ended in this state. I have feeling for u and I care for u. This isn’t easy!!
On 12 December 2013 the husband presented to another doctor complaining of heart palpitations. The doctor prepared a medical report on that day concluding that the physical examination was “unremarkable” but diagnosing the husband with “Anxiety Depression Syndrome”.
One interpretation of the parties’ discussions around the time of the expiry of the time limit on 17 December 2013 is that the wife began to demonstrate some responsiveness to the husband’s proposed reconciliation.
After the time limit expired: 17 December 2013 to 7 March 2014
Some reference to the parties’ evidence in this time frame is also relevant. The circumstances of the parties in the two previous time frames provide an explanation for the delay in filing the notice of appeal. The other critical time is after the time limit expired to examine the reason for the delay and the possible effect on the respondent.
On 17 December 2013 the 28 day time limit prescribed for filing of a notice of appeal expired. It is clear from the parties’ text messages that the husband continued to attempt to persuade the wife to reconcile with him during this period. It is not necessary to set out the husband’s messages. It is sufficient to note that the husband’s messages to the wife were frequent and escalated from emotive pleas and promises to what could be described as aggressive and derogatory. The record indicates that sometimes the wife would not respond and on other occasions the wife would console the husband. I set out below only the messages where the wife has actively engaged in conversation with the husband regarding reconciliation.
On 18 December 2013 the husband flew to Europe from Dubai. On that day the wife texted the husband “…Love u xxx”. Counsel for the wife directed my attention to the follow message sent by the wife on 20 December 2013:
I hate the way everything happened and we had to go to court and if I could take it back I would. I don’t know how to [f]ix the mess we are in. There is so much pain, hurt, anger and resentment. I don’t know how to fix it. It’s hurting me so bad that things came to this point and I’m struggling. Amongst all the bad things that have happened I still love u and feel so heart broken that things have ended this way. I feel so depressed at the moment but am trying to hold it together for [Y]. I sorry I don’t have an answer. I don’t have solutions. I’m sorry u are waiting for me to give u answers. I can’t. I don’t know what to do to make our lives ok in this situation.
On 23 December 2013 the husband asked “Don’t u miss me?” to which the wife responded “I do”.
The wife explicitly sets out her concerns on 24 December 2013:
This is now a complicated situation, with laws and countries… what happens when I say I can’t trust to go to Dubai… I can’t believe u won’t have resentment down the line if I say I can’t ever feel secure to go to [D]ubai.
And then on 25 December 2013 the wife wrote:
We miss you and love you dearly too… I’m so sorry that I am so useless at opening all my emotions and facing my fears… I think sometime I’m just shutting down to facing the emotions because they are too much for me and I don’t think I can handle it.
On 28 December 2013 the wife wrote: “I can’t feel that it can work and at the same time I can’t bear to let go”. The next day she messaged the husband: “I’m terrified to say that it won’t work when u are making every effort to say u will made and sacrifice but I feel so unsure that it could ever really work.”
On 30 December 2013 the wife wrote:
It’s not about being too busy it’s about being confused and unsure… I don’t want to leave u hanging but u are asking me and I’m saying considering everything I don’t know what to do. I don’t think it can work but there are hopes and desired that it could be mended… Your right I don’t have the courage to say I want to let go of everything that could be a possibility. I am scared… But it’s messy and difficult and complicated. And I don’t know.
There are no text messages between the parties in the record produced by the husband between 2 January 2014 and 9 January 2014.
On 9 January 2014 the parties discussed the wife’s fears regarding returning to Dubai and the application of Sharia law. The husband offered to enter into some form of agreement, after which the parties discussed the expert evidence given at the hearing regarding agreements to exclude the application of Sharia law in the UAE. The wife responds:
I’m sorry but that is too big a risk… This situation has already gone to a point that feels so hard… I’m sorry I don’t see how it can work. Because I can’t see myself ever going to [D]ubai and I can’t see how u would ever accept that. It would lead to more resentment and anger. I have been searching for answers and can’t feel sure about anything and I’m scared. I don’t want to keep u hanging when I don’t know… I don’t want to go through trying and failing to put everyone through more pain. I don’t feel ok with the way things are and I can’t change it. I still love u and treasure all of our amazing times together and feel so torn. But I’m not going to keep you hanging in my uncertainty… I wish I could fix everyone pain and make it work.
The husband queried: “So It’s over?... And I should stop trying?” To which the wife replied:
The country law thing is way more serious than u are saying. It’s a major issue for me… And it’s the major part that has caused so much problems… U are not goin to really except [sic] that we don’t go to [D]ubai.
On 11 January 2014 the wife wrote:
I can’t decide to give it a chance and take the risk if it fails that it would make things worse…. And it’s not going to be easy it we did I have so many reasons that I’d want to try anything to make it work but reality of the situation is tough. I am lost with this. As u said I am!!! I consider everything and then everything again. I don’t want to give up but I can’t ignore the difficult potential problems. I’m sorry but this is tearing me apart. I can’t decide what to do. I’m not sure.
The husband then threatened further legal action and the withdrawal of his financial support. He said “And if you think I can’t go legal now because ur in Australia… Ur mistaken.” The husband later says that he doesn’t want to go back to court to keep the family intact. The husband then made proposals regarding a division of the parties’ property before asserting that he “will never come” to Australia to see the child.
There can be no doubt that the husband’s attempts to convince the wife to reconcile and /or travel to Dubai came to an end on 11 January 2014. The parties continued to communicate after this date, but these communications concerned the child, the husband’s attempts to negotiate a property settlement, or what could most neutrally be described as the husband’s derogatory remarks about the wife.
By 20 January 2014, the husband’s aggression towards the wife had escalated. The wife wrote to the husband that: “I’m sorry I don’t know but I feel how hard and painful it must be… I’m sorry if I could make things different I would”. The husband’s response later that day included the statement: “… u mean nothing to me anymore”. The husband then foreshadowed the instigation of further parenting proceedings:
I will never stop fighting for [Y]… I will do everything within my powers to legally get [Y] back into my life… I’m not waiting anymore to get a decision from u… I will take it to your courts... and the international courts… I will show you how fair our courts are.
On 22 January 2014 the husband travelled to Asia. A medical certificate prepared by a hospital provides that on 23 January 2014 the husband had a skin tag and sebaceous cyst on his face excised. Counsel for the father termed this procedure an admission to hospital for surgery after which the husband required a period of recuperation. The evidence is that the husband remained in Asia until 30 January 2014 as he was required to attend follow up consultations at the hospital.
Annexed to the wife’s affidavit are screenshots of what appears to be the husband’s “Instagram” account, which includes various photographs of the husband in Dubai, then Europe, and finally Asia. The handwritten notations are of little assistance, there being no explanation for how those dates were attributed. One of these screenshots includes a picture of a bike and a map and the text “Rode 25.33 km on 1/15/14”. The husband’s comment was “[n]ot as easy as I thought but I managed for the first day”. He later comments that his average speed was “18.7 with a slipping chain and low tire [sic] pressure”. Another “Instagram” states “Walked 11.24 km on 2/10/14” with the husband’s comment “Done for today”.
The affidavit of the husband’s solicitor deposes that the first contact Watts McCray received from the husband was on 12 February 2014. The firm was formally retained to represent the husband on 19 February 2014. Counsel was retained on 21 February 2014. The husband’s complete file from his former solicitors was received on 26 February 2014.
This application was then filed on 7 March 2014. Counsel for the husband submitted that this delay must be considered in the context of solicitors who were unfamiliar with the matter.
Conclusions regarding delay
In proceedings such as these, it is not necessary nor appropriate to make findings about whether the evidence of either party is to be preferred. There was no suggestion that the recording and transcription of their personal conversations were not accurate. It may be that each party had different perceptions and held entirely different views on whether reconciliation was achievable.
Counsel for the wife submitted that for the delay to be adequately explained, the husband would need to demonstrate that the parties were contemplating the child’s return to the UAE. This submission appears to be premised on the basis that if the proposed reconciliation did not contemplate the child’s return to the UAE, the husband should have appreciated that he would still be required to appeal the parenting orders to achieve that outcome; there being no evidence that the wife would consent to the discharge of the orders. This submission ignores the possibility at least in the husband’s mind that there was to be a reconciliation. The geographical location of a potential reconciliation seems an irrelevant consideration where the parenting orders provided the husband was to spend supervised time with the child and the wife conducted herself, at least in his mind, inconsistently with those orders.
It is clear from the parties’ text messages that the husband attempted to persuade the wife to reconcile with him and relocate to Dubai, on occasion demonstrating aggression. The wife on occasions did not respond to the husband, although at times the wife did engage in conversation about this topic or attempt to console the husband.
It is the husband’s evidence that he feared pursuing an appeal would destroy any prospect of the parties reconciling.
There is an adequate explanation, however it must be noted that there are gaps in time. The explanation for delay in the period between 11 January 2014, when all prospects of a reconciliation came to an end, and 12 February 2014, when the husband first contacted his solicitors, is not entirely satisfactory. The husband may have exaggerated the severity of his health problems although that is only one factor. The test is an adequate explanation, distinguished from a comprehensive explanation. The husband has sufficiently explained the delay in the unusual circumstances of this case.
Has merit been demonstrated?
The proposed grounds of appeal are as follows:
1.That his Honour erred in principle and acted contrary to law in determining that s 60CC(2)(b) applied to the events he described in pa. 241 and thereafter the error permeated the whole of his reasoning process by not only wrongly identifying a false primary consideration but then wrongly affording those facts greater weight than the matters identified in s 60CC(2)(a).
2.That his Honour erred in principle in his consideration of “unacceptable risk” in failing to find or recognise that he had not found that there was an unacceptable risk that the appellant would seek to take the child to and retain the child in UAE contrary to orders; or, would if permitted to take the child to UAE, retain her there contrary to orders of this court and would, in any event, if the child resided with him or spent time with him pursuant to orders of this court, seek to apply Sharia law contrary to orders of this court.
3.In the alternative, in the event that ground 2 is rejected then his Honour failed to give adequate reasons for any finding that the appellant was likely to act in any of the ways described in ground 2 so as to constitute unacceptable risk.
4.That his Honour erred, if his reasons are held to so imply, that in the fact finding process before him, an adverse view of the credit of the appellant, permissibly permitted him, by inference, to conclude that he would be likely to act in the ways referred to in ground 2.
5.That his Honour erred in failing to give adequate reasons by failing to make findings whether he regarded the statements that he found the appellant made in March 2012 were a genuine statement or threat as to how to appellant intended to act and failed to explain or find whether he found those statements as constituting a likelihood that he would act in the ways described in ground 2 at the time judgment.
6.That his Honour erred in principle and discretion in taking to account, as a factor contrary to the interests of the child, his views that the rule of law in another country where the child had ordinarily resided, would operate contrary to the welfare of the child.
7.That his Honour erred in his reasoning proceed in the assessment of the credit of the appellant by concluding dishonest intent in his reasons at pa. 91 – 102 and further his Honour erred in principle in the process of reasoning he relied upon to conclude that the rejection of Ms [G]’s evidence axiomatically damaged the appellant’s credit (pa. 183).
8.That his Honour erred in principle in taking into account in his reasoning as to “unacceptable risk” the fact that the appellant had maintained, until the commencement of the hearing, an application contending for a summary return of the child to Dubai and consequently that the proceedings would thereafter be determined in that forum and further his Honour erred in drawing any adverse inference against the appellant from those facts in relation to any issue in these proceedings at all.
9.That his Honour erred in finding that there was evidence before him to support a conclusion that the appellant would be likely to spend anything in the order of 3 or 4 months per annum in Australia, or will “not spend any more” than that period and in doing so ignored or failed to give reasons for rejecting the affidavit evidence of the appellant in respect of that issue.
10.In determining to make an indefinite supervision order his Honour failed to take into account the constraints that such imposes on the opportunity of the appellant and child to have a relaxed, secure and meaningful relationship and failed to give adequate reasons as to why supervision was a necessary or desirable addition to the other safeguards he had imposed.
11.That His Honour erred in failing to properly consider and determine the appellant’s applications for fortnightly time and ‘block’ periods of time and in failing to deliver sufficient reasons or any reasons for rejecting such applications.
12.The whole of his Honour’s judgment is infected with apprehended or actual bias in that a reasonable observer of his Honour’s reasons might conclude that his Honour acted on an assumption that any Muslim father with some position of influence or responsibility in an Islamic country presented an unacceptable risk of child abduction, and that no man in the position of the Father would be treated fairly by his Honour on the basis of admissible evidence.
Particular emphasis was placed on ground 1 and then as a group grounds 2, 3 and 4.
In [238] and [244] the trial judge said:
On balance I find that there presently, and for the foreseeable future, exists an unacceptable risk to [the child] if she were permitted to return to or visit the UAE or to leave the Commonwealth of Australia with the Father that the Father may seek to impose the law of the UAE.
…
I am satisfied that the Father would abide an order preventing either parent from employing physical means of discipline particularly in circumstances where the Father’s time with [the child] takes place in Australia.
Counsel for the husband referred to the New South Wales Supreme Court decision of Tomko v Palasty (No. 2) [2007] NSWCA 369. Mr Richardson SC referred particularly to the comments of Basten JA at [58] that “it is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case.” Hodgson JA agreed at [14], concluding that “[i]f such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient”.
Although it is difficult to assess the prospects of proposed grounds of appeal at this stage, it cannot be said that the appeal is devoid of merit. The notice of appeal asserts grounds which appear arguable. Where the husband has established a reasonable explanation for delay, subject to considering the prejudice to the wife, this is sufficient.
Prejudice to the wife
The wife refers in her affidavit to the stress that the ongoing litigation with the husband has caused her, and the consequential effect of this on the child. There is no reason to doubt that this would be correct.
It is unfortunate that the granting of this application will prolong the litigation between the parties. It cannot be said that the husband’s application to file a notice of appeal out of time caught the wife off guard – the record of text messages exchanged between the parties demonstrates that the wife was on notice of the husband’s intent to pursue further litigation once the proposed reconciliation failed. It must be seen that on balance, the hardship to the husband in being unable to appeal final parenting orders outweighs the prejudice to the wife where there has been a delay of two months and 18 days.
Conclusion
The court’s discretion to allow an extension of time exists for the purpose of ensuring justice be done between the parties. Such discretionary decisions must also be balanced with the desirability of finality in litigation.
Without considering the merits of the appeal in detail, it can be seen that to deprive the husband of an opportunity to appeal final parenting orders which have the effect of restricting his relationship with his young daughter after a relatively short and reasonably explained delay may work an injustice against him. The extension of time should be allowed.
Costs
During the hearing counsel for the husband handed up a signed undertaking by the husband which provided:
1.In the event leave is granted for an extension of time to file the Notice of Appeal, and I am subsequently unsuccessful at the hearing of the Appeal, I undertake to consent to an Order that I will pay the Respondent’s costs of the Appeal on an indemnity basis.
2.Further, I am willing to consent to the costs of the present application forming part of the costs of the Appeal.
Counsel for the wife submitted that if the application was successful, an indemnity costs order should be made against the husband due to the significant stress that the wife had suffered due to the conduct of the husband in bringing the application unexpectedly. It was correctly submitted by counsel for the husband that this was not a basis for indemnity costs as costs ordered under the Act are compensatory, not punitive.
The better course, given the husband’s undertaking, is to reserve the issue of the costs of this application to the hearing of the appeal.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 23 June 2014.
Associate:
Date: 23 June 2014
17
5
2