Gazal and Belros (No 2) - [2014] FamCAFC 190

FAMILY COURT OF AUSTRALIA

GAZAL & BELROS (NO. 2)

[2014] FamCAFC 190

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks a further adjournment to file amended documents seeking an order extending the time in which to file an appeal – where the application is opposed – application granted – self-executing order made.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks her costs thrown away – where the applicant seeks to pay the sum sought in instalments – where there are circumstances which justify such an order – costs ordered as sought by the respondent.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Gazal

RESPONDENT:

Ms Belros

FILE NUMBER:

MLC

10089

2010

APPEAL NUMBER:

SOA

2014

DATE DELIVERED:

8 July 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

8 July 2014

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

22 August 2013

LOWER COURT MNC:

[2013] FCCA 1268

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Mr McConchie

SOLICITOR FOR THE RESPONDENT:

Buller McLeod Pty

Orders

The time for the applicant father to file and serve an amended application and supporting documents be extended to the close of business on Monday 14 July 2014.
In the event that the applicant father fails to file his amended documents in accordance with paragraph 1 hereof the application in an appeal filed on

10 February 2014 be dismissed.
In the event that the applicant father does file his amended documents in accordance with paragraph 1 hereof that amended application be listed for hearing before the Honourable Justice Strickland in Melbourne commencing at 10:00am on Tuesday 9 September 2014 with a time estimate of two [2] hours.
The applicant father pay to the respondent mother the sum of FIVE HUNDRED AND FIFTY DOLLARS [$550] by way of costs thrown away today such costs to be paid on or before the close of business on 15 December 2014.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gazal & Belros 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 MELBOURNE

Appeal Number: SOA 8 of 2014
File Number: MLC 10089 of 2010

Mr Gazal

Applicant

And

Ms Belros

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is an application in an appeal filed on 6 June 2014 by Mr Gazal (“the applicant”). There is a brief affidavit in support of that application also filed on the same date.
The background of that application is that on 10 February 2014 the applicant filed an application in an appeal seeking an extension of time to appeal against orders made by Judge Burchardt on 22 August 2013. In support of that application there was an affidavit filed, and a draft Notice of Appeal. That application came before me on 8 May 2014 when I indicated to the applicant that as his documents stood, there was no basis demonstrated on which this court would grant an extension of time.
The applicant then sought an adjournment to amend his documents. That was opposed. In the end result I granted the adjournment but on specific conditions. I ordered that the applicant file and serve any amended application and supporting documents by close of business on Friday 6 June 2014, and I note and recall that that time period was the time period sought by the applicant. I then ordered that if the applicant failed to file further documents in accordance with that order then the application of 10 February 2014 would be dismissed. On the other hand if he did file amended documents his application was to be listed for hearing today namely, 8 July 2014. I also made an order for costs in favour of the respondent mother.
What has happened is that the applicant did not comply with the order for the filing of an amended application and supporting documents. Instead what he did was, on 6 June 2014, the last day to file those documents, he filed the application to which I earlier referred. In that application he seeks an extension of time to file the amended application and supporting documents.
Frankly, there is nothing new in the affidavit filed in support of the application which would justify an extension of time being granted. Indeed, the most the applicant has deposed to in that affidavit, is that he filed an application for legal assistance with Victoria Legal Aid, and at the time of filing the affidavit he had not heard from Legal Aid as to the result of that application. Today he tells me, and he has shown me a letter from Legal Aid, to this effect, that Legal Aid have refused to grant him legal assistance.
However, despite what I say about that affidavit namely, that it still did not provide any basis for extending the time, the applicant has told me today that he has made arrangements with his former solicitor to brief counsel to prepare the amended application and supporting documents. I have also sighted a letter from the applicant’s former solicitor to the applicant to that effect.
The difficulty is, and to put it kindly, it is unfortunate, and to put it less kindly, it is concerning, that this has been done at the last minute, but apparently the applicant was to pay an amount of money to his former solicitor by today,

8 July 2014, to meet the fee of the counsel briefed to prepare the documents. In the letter the solicitor indicates that if the fee is paid by today the barrister will prepare the documents by 14 July 2014. Thus the extension of time the applicant seeks to file his amended application and supporting documents is to 14 July 2014.
That application is opposed by Ms Belros (“the respondent”), and counsel for the respondent, Mr McConchie, has made relevant submissions as to the reasons for that opposition. This matter, if I agree to the extension of time, will not be drawn to a conclusion today. Yet this is a matter that has been going on for some time; Mr McConchie tells me around four years for the entire proceedings, and of course the relevant final orders were made in August 2013, and it is almost 12 months on from that time. Mr McConchie has queried the bona fides of the applicant and whether in fact what he tells this court will occur, and whether it will just create another hearing and more time spent with further delays, and concern for his client.
I can understand that submission, but I am comforted by the fact that the applicant has in fact complied with the first part of the order for costs that I made on 8 May 2014, which was for him to pay $400 as a first instalment of the costs order, on or before the close of business on Friday 4 July 2014. The applicant tells me today, and he says he has a receipt to this effect, that he complied with that order and he paid the $400 on Friday 4 July 2014.

Mr McConchie’s instructions were otherwise, but I proceed on the basis that it has been paid, and I have been very specific in requiring the applicant to confirm that in open court.
Thus we have a scenario where although the applicant was to file his amended documents on 6 June 2014 he did not, but to give him credit he did not simply sit by and do nothing, he made an application to extend the time to file those documents, albeit on the last day available, and he has, as I say and to repeat, complied with the first part of the order for costs that I made on 8 May 2014.
In the circumstances I am prepared to grant the applicant one further indulgence, but it is, and I stress, one further indulgence, and that is to extend the time to file his amended documents to the close of business on Monday

14 July 2014.
I also propose to make a self-executing order to the effect that if the documents are not filed in accordance with that order, then the application of 10 February 2014 will stand dismissed. In the event though that the applicant does comply with the order, then I propose to list the application of 10 February 2014 for hearing in September, when I am next sitting in Melbourne.
In light of the orders I have proposed I now have an application for costs made on behalf of the respondent mother.
What is sought, are the costs of the appearance today in the sum of $550. In my view it is appropriate to make an order for costs given the circumstances and the orders that I have made today, which extends a further indulgence to the applicant. As a result of the application that has been made today, the respondent mother was required to address it, counsel was required to appear, and we have been in court for an hour or so.
In terms of the amount sought, in my view that amount is reasonable.
Thus, I propose to make an order that the applicant pay costs thrown away today in the sum of $550. The applicant has asked that that be paid off effectively over a five to six month period as he can afford to pay $50 per fortnight. I will accede to that request and fix a date by which the total amount must be paid.

I certify that the preceding sixteen (16) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 8 July 2014.

Associate:

Date: 2 October 2014