Fulwood and Chammalee

[2019] FamCAFC 235

FAMILY COURT OF AUSTRALIA

FULWOOD & CHAMMALEE [2019] FamCAFC 235

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – Where the appeal was deemed abandoned after the father failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – application opposed by the mother – Where explanation for the delay – Where the delay was 12 minutes – Where the proposed grounds of appeal may attract appellate intervention – Where reinstatement of the appeal would not be unjust to the respondent – Application to reinstate granted.

Family Law Act 1975 (Cth) s 69E
Family Law Rules 2004 (Cth) rr 22.13, 22.44

Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516

APPLICANT: Mr Fulwood

RESPONDENT: Ms Chammalee

FILE NUMBER: SYC 1196 of 2019

APPEAL NUMBER: EA 102 of 2019

DATE DELIVERED: 6 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 4 December 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 6 September 2019

LOWER COURT MNC: [2019] FamCA 583

REPRESENTATION

THE APPLICANT: In person (no appearance)

SOLICITOR FOR THE RESPONDENT: Prestige Solicitors & Associates

Orders

1. That Appeal EA 102 of 2019 be reinstated.

2. That the appellant file and serve the draft appeal index within seven (7) days from the date of this order.

3. That there be no order as to costs.

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 Fulwood & Chammalee 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 102 of 2019
File Number: SYC 1196 of 2019

Mr Fulwood

Applicant

And

Ms Chammalee

Respondent

REASONS FOR JUDGMENT

introduction

1. By an Application in an Appeal filed on 8 November 2019, Mr Fulwood (“the father”) seeks an order to reinstate his appeal against orders made by Henderson J on 6 September 2019 (“the orders”).  The orders concern Ms Chammalee (“the mother”), who is the respondent to this Application and relate to X, born 2008 (“the child”).  The orders provide for a declaration that the habitual place of residence of the child is Australia (Order 1), that the father cause the child to return to Australia (Order 2), that the child live with the mother (Order 3) and the father provide the child’s Australian and Thai passports to the mother (Order 4).

2. On 1 November 2019, the appeal was deemed abandoned by the operation of rule 22.13 of the Family Law Rules 2004 (Cth) (“the Rules”), because the father failed to file a draft appeal index within the time prescribed. It should be noted that the delay in filing was 12 minutes.

3. After the Notice of Appeal was filed, the Eastern Appeals Registry contacted the parties via email, outlining the requirements of the appellant to file a draft index to the appeal books in accordance with the Rules. Accordingly, the father had until 4.30 pm on 1 November 2019 to file his draft appeal index. At 4.42 pm on 1 November 2019, after the appeal had been deemed abandoned, the father’s solicitor attempted to file the draft index with the Eastern Appeals Registry. The document was rejected and thus, on 8 November 2019, the father applied to reinstate the abandoned appeal.

4. It should be noted that the mother was represented by Mr S of Legal Aid NSW at trial.  On 29 November 2019, Mr S sent correspondence to the Appeals Registry seeking to be excused from appearing at this hearing, stating that the mother had not instructed him in relation to the appeal or this application for reinstatement.  That request was granted.  Correspondence tendered at the start of the hearing today established that the mother was notified of the Application and today’s hearing.  She was invited to consent to the Application but did not.  She did not attend today.  The mother and father live in the same residence and this morning the mother told the father she would not attend.  I am satisfied that the Application should proceed in her absence.

Background

1. So as to give this Application context, it is necessary to set out some brief background facts.  These are taken from her Honour’s reasons and the documents filed in support of this Application.

2. The father was born in Country A in 1963.  The mother was born in Thailand in 1971.  The parties have one child together.  The mother has three older children from a previous relationship, aged 23, 19 and 15 at the time of the trial.  The father has a younger child with his current partner.

3. The parties commenced a relationship in 2003, were married in Thailand in 2005 (or 2006, per the father’s case) and moved to Australia in January 2006.  The father is an Australian citizen and the mother entered Australia on a spouse visa.  The parties’ child was born in 2008.  The child is a dual citizen of Australia and Thailand.  In 2011 the mother became an Australian citizen.  The parties separated in 2013 but continued to live together.

4. During a visit to Thailand in 2015, the father commenced divorce proceedings. The parties were divorced in Thailand in December 2015, to which the mother asserted she was unaware of until “a Divorce Order was slipped under her door in early 2016” [27].

5. The father then commenced proceedings in the Provincial Juvenile and Family Court of Thailand in relation to the child.  In those proceedings:

   31.the father claimed that [the child] was in his care post separation, that he had had sole responsibility for making day-to-day decisions concerning the child, had fully supported the child and the mother had had very little to do with the parenting or care of the child in Australia. At the time of filing this Affidavit, [the child] was living in Australia. The mother asserts she was completely unaware of the proceedings in relation to the child commenced by the father in Thailand.

6. On 29 June 2017, the Provincial Juvenile and Family Court of Thailand made orders (“Thai orders”) which provide the father with sole parental responsibility for the child.  The appeal period for that judgment expired on 11 August 2017, but the mother asserted she was unaware of the proceedings or the Thai orders.

7. The mother’s adult son and the child went to Thailand in December 2018.

8. The father moved to Thailand in December 2018.  Up until this point, the child had lived in a shared care relationship in Australia.

9. On 27 February 2019 the mother filed an urgent application seeking return of the child from Thailand to Australia. The matter was listed for interim hearing on 5 March 2019 but the father did not appear. The matter was then listed for 9 April 2019. The father appeared and sought orders to register and give effect to the Thai orders. He raised jurisdictional issues preventing the Family Court of Australia from making a determination in relation to the child “as the child’s habitual place of residence is Thailand and the Thai Court has made a determination in relation to his care” [11]. The matter was listed for final hearing on 9 August 2019.

10. At the time of the hearing, the child was living in Thailand with the father’s now wife and their child, whilst both parties lived in Australia. The father was living in Australia as the primary judge “imposed upon him an injunction from returning to Thailand given the grave concerns the Court has in relation to the child’s living circumstances, and his removal from Australia in December 2018” [3]. The mother sought a recovery order which the father resisted, asserting that the parties had an agreement that the child would live in Thailand and that the child’s habitual place of residence is Thailand [54].

11. In relation to the issues raised by the father concerning jurisdiction, s 69E of the Family Law Act 1975 (Cth) (“the Act”) provides that where any one the following matters exist the Court has jurisdiction. At [52] the primary judge found the following matters to be of relevance to enliven the Court’s jurisdiction:

    a)The child is an Australian citizen;

    b)The mother is an Australian citizen;

    c)The father is an Australian citizen;

    d)The mother was present on the relevant day; and

    e)The father was present the relevant day. The relevant day means the day the matter was filed.

12. At [56] –[57] her Honour dismissed the father’s application to register and give effect to the Thai orders and went on to make the following findings:

    92.I do not accept there was a shared intention, let alone an agreement between the parents, that [the child] would permanently live in Thailand from December 2018. Thus, there cannot be a shared intention that he would live in Thailand with a sufficient degree of continuity to be properly described as a settled arrangement.

    93.Up until December 2018, the child had always lived permanently in Australia with his mother, father and older siblings, and had lived in a shared parenting arrangement.

    94.[The child] is currently living in Thailand with a woman who was in December 2018, a stranger to him and has been separated from his mother and siblings by the actions and conduct of the father.

    95.The child had attended a school in Sydney, being C School, up until December 2018. The father has unilaterally changed his schooling.

    96.[The child] has never previously lived in Thailand on a permanent basis.

    …

    102.I find the father set out on a course of conduct to wrongfully remove the child to Thailand as it is clear had he raised this issue with the mother she would have objected to that course of action.

    103.For all the above reasons, and having regard to all the circumstances of the case, I find that Thailand is not the habitual residence of [the child]. Whilst he has a connection to Thailand with his Thai heritage and the many family holidays he has spent there, prior to the wrongful removal of the child by his father to Thailand on 8 December 2018, [the child’s] habitual place of residence was Australia.

Reinstatement

1. Rule 22.44 provides that a party may apply to have reinstated an appeal taken to be abandoned under Chapter 22 of the Rules.

2. The principles relating to applications to reinstate an appeal are set out in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 (“Jackamarra”), in particular, Gummow and Hayne JJ at [33]:

   …[W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…

Discussion

Delay

1. As was mentioned earlier, the father’s Notice of Appeal was filed in time but his draft appeal index was not.  The draft appeal index was due by 4.30 pm 1 November 2019, the father’s solicitor attempted to file it at 4.42 pm on 1 November 2019, 12 minutes out of time.  On 4 November 2019 the Eastern Appeals Registry communicated to the parties that the document had been rejected and the appeal had been deemed abandoned.  This application was filed four days later, on 8 November 2019. 

2. The affidavit filed in support of this Application was sworn by a junior solicitor at the firm instructed by the father.  In her affidavit she explained the delay in filing the draft appeal was caused due to her misunderstanding the time it was due.  As a consequence, she attempted to file the draft appeal index out of time and remained unaware of the error until the Appeals Registry had communicated to her that the document had been rejected.  While this explanation is not particularly compelling, it should be borne in mind that the consequences of a solicitor’s default should not readily be imposed on the client (Jackamarra).  In any case, the applicant acted promptly in bringing the present application and the delay itself was very short.

3. When the father’s presentation of this Application is considered, it is accepted that he will present the documents required to prosecute the appeal in a timely fashion.  In the circumstances the delay is adequately explained.

Merits of the appeal

1. The father asserts nine grounds of appeal.  Stated broadly, it is his contention that the primary judge was in error by finding that the habitual residence of the child is Australia and; that the father wrongfully removed the child from Australia.

2. There are some difficulties in assessing the prospects of success of the proposed appeal.  But there are potentially matters of substance raised that are, at this point, seemingly arguable.

3. I am not satisfied that the proposed appeal is so lacking in the merit that the appeal must fail.

Prejudice

1. It is accepted that the effect of refusing the father’s application is that he would not be able to pursue his appeal.

2. On the other hand, it can be said that the mother is prejudiced by the delay in bringing on the appeal.  Further litigation, delay and expense could have a worrisome effect on her and the child.  It follows that aspects of the effect of an order for reinstatement of the appeal cannot be addressed by an order for costs.  These are significant matters that weigh against an order for reinstatement.

Conclusion

1. It should be determined that the father has provided sufficient explanation for the delay and that his proposed grounds of appeal provide a basis upon which one might conclude that his appeal is not doomed to fail.  Further, he has established that the refusal of his application for reinstatement of his appeal would be unjust.  The subject matter of the appeal concerns the welfare of the child and involves matters of real substance. 

2. It follows that the application for reinstatement will be granted.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 6 December 2019.

Date:  6 December 2019