GAZAL & BELROS
[2014] FamCAFC 81
FAMILY COURT OF AUSTRALIA
| GAZAL & BELROS | [2014] FamCAFC 81 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the applicant seeks to extend the time in which to file an appeal – where the application is opposed – where the applicant seeks an adjournment to file better prepared documents – where there are reasons why the application should be granted namely, the applicant is self represented and English is his second language – application adjourned. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the respondent seeks her costs thrown away – where the applicant opposes the application – where there are circumstances which justify such an order – costs ordered as sought by the respondent. |
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| APPLICANT: | Mr Gazal | ||
| RESPONDENT: | Ms Belros |
| FILE NUMBER: | MLC | 10089 | of | 2010 |
| APPEAL NUMBER: | SOA | 8 | of | 2014 |
| DATE DELIVERED: | 8 May 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 8 May 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 applicant father file and serve on or before the close of business on Friday 6 June 2014 such amended application and supporting documents as he may deem fit.
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 8 July 2014 with a time estimate of two [2] hours.
The applicant father pay to the respondent mother the sum of TWO THOUSAND DOLLARS [$2,000] by way of costs thrown away such costs to be paid in the manner following:
(a)The sum of FOUR HUNDRED DOLLARS [$400] on or before the close of business on Friday 4 July 2014; and
(b)The balance of the said sum of TWO THOUSAND DOLLARS [$2,000] on or before the close of business on Friday 7 November 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
Introduction
This is an application in an appeal filed by Mr Gazal (“the applicant”) on
10 February 2014.
In that application he in effect seeks an extension of time to file a Notice of Appeal against orders made by Judge Burchardt on 22 August 2013. The basis for that is obvious. The Family Law Rules 2004 (Cth) (“the Rules”) provide for any Notice of Appeal to be filed within 28 days of orders being made or judgment being delivered. The applicant failed to comply with that timeframe and that is the reason he is now making this application.
The application is supported by a brief affidavit and a draft Notice of Appeal.
The applicant appears without legal representation today. He did have legal representation before Judge Burchardt but his solicitor was not able to continue to act for him thereafter because of lack of funding.
When the matter was called on today the applicant in effect sought an adjournment to enable an interpreter to be engaged to assist him in presenting his case. For my part I was not satisfied of the need for an interpreter. However, as matters transpired the applicant did not pursue that application and the hearing proceeded.
Ms Belros (“the respondent”) is represented by Mr McConchie of counsel, and his instructions are to oppose the application. The respondent has not filed any documents, but I do not say that in any critical way, because there is no need to file responding documents to an application such as this as the onus is on the applicant to satisfy this court as to why time should be extended.
I indicated to the applicant the factors that would be relevant in considering his application. For example, an explanation for failing to comply with the timeframe for the filing of an appeal, the merits of the appeal, and the prejudice to either party depending on the result of the application. I did that specifically because I was concerned about the applicant appreciating what he needed to establish to this court to succeed.
To repeat, the applicant filed an affidavit in support of the application, and he tells me he was assisted in preparing that affidavit by his former solicitor. However, that affidavit really only addressed one issue, and that was, providing some sort of explanation as to why a Notice of Appeal was not filed within
28 days. It seems the explanation for that failure is first, that the applicant did not receive a copy of the reasons for judgment and the order until some two months after the orders were pronounced in court, and oral reasons delivered.
As a result of that claim I enquired of Mr McConchie when his solicitor received a copy of the reasons for judgment and the order, and he said it was
11 September 2013.
I have now sighted a letter from the court file which indicates that the reasons for judgment and the orders were sent out to all parties, including the Independent Children’s Lawyer, and specifically to the applicant’s then lawyer, on 11 September 2013. The applicant does not in his affidavit, nor is he able to tell me from the bar table, why it is then that he did not receive his copy until two months later, namely October 2013. I indicated to him that I was not satisfied that that was an explanation as to why he was not able to file a Notice of Appeal within the 28 day time period.
In the balance of his affidavit the applicant explains that he, and this is my summary of what he is saying, did not really know what he needed to do, he went back to see his lawyer who said initially he could not help him but ultimately indicated he would help him, and to repeat, apparently he helped the applicant with his affidavit. The applicant also says he helped him with his draft Notice of Appeal. I have some difficulty accepting that because of a problem I will identify shortly, but I certainly record that as what the applicant put to me.
In any event, by the time all this had happened the 28 day period had well and truly expired. Indeed, not to put too fine a point on it, it had expired before the applicant says he even received his copy of the reasons and the order.
Given what I propose to do with this case I am not going to make any finding today as to whether there is an adequate explanation for the failure to comply with the Rules. I can say though, that my preliminary view is that I am not satisfied that there is an adequate explanation for the failure to file within the 28 day time period.
I then took the applicant to the next relevant factor namely, the merits of the appeal, and as I have said there was a draft Notice of Appeal filed in support of the application. However, as I also pointed out to the applicant, there is no proper ground of appeal set out in that draft Notice of Appeal. There is no identifiable error of fact or law alleged to be made by the trial judge. Thus, as I indicated to the applicant, as that draft Notice of Appeal stood, if it was before a Full Court at this point, it would be dismissed.
Thus, the view I expressed openly in court was that there was no merit to the appeal based on the so called grounds of appeal in that draft Notice of Appeal. Or put another way, the applicant does not present an arguable case and there is no prospect of success on the proposed appeal.
At that point the applicant made a further application to adjourn these proceedings to better prepare his documents, both in terms of the affidavit material, and in terms of the draft Notice of Appeal on which he intends to rely.
Reluctantly, I propose to allow the adjournment.
Although I was not satisfied that the applicant needed an interpreter, clearly he struggled with some of the legal terminology that was used, although as I also said that is sometimes a problem that even people who have English as a first language struggle with. In any event that clearly was a problem for the applicant, and I indicate that given I propose to adjourn the matter, if the applicant still considers he requires an interpreter he can, prior to the next hearing, approach the court to arrange for an interpreter to be present to assist him.
I note that the application for adjournment is opposed by the respondent and opposed for proper reasons and on a proper basis by Mr McConchie, namely, he was here with his client ready and able to proceed with the matter. To adjourn the matter would create uncertainty for his client; his client’s health has been poor, and this matter has been on foot for a significant period of time and needs to be finalised. They are reasons which are relevant and appropriate for me to take into account.
However, it seems to me, and I expressed this during submissions, that it is an access to justice issue. The applicant is without legal representation and English is his second language. He should have a reasonable opportunity to properly present his case.
However, I propose to grant the adjournment on conditions. The applicant has asked for four weeks to file and serve amended documents. What I propose to do is to make an order giving the applicant four weeks to file his amended documents, but then make an order that if he fails to comply with that order, the application before the court today is dismissed. However, if the applicant does file his amended documents then this matter will be listed for further hearing in July 2014.
Given that I was disposed to grant the adjournment Mr McConchie made an application for the applicant to pay the costs of his client thrown away. The ultimate amount he sought was a total of $2,000, covering both counsel fees and solicitor’s costs.
In my view there are circumstances that justify an order for costs being made.
It is the applicant’s application to adjourn part-way through a hearing, a hearing in respect of which the respondent has incurred significant legal costs which would not otherwise be able to be recovered. Thus, I propose to make such an order.
The applicant then made an application to pay that amount of costs by way of instalments namely, $100 per fortnight.
I am prepared to allow him time to pay, but I propose to require him to pay part of that total amount of $2,000 by the time of the proposed resumption of the hearing in July 2014, and the balance within six months of today.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 8 May 2014.
Associate:
Date: 13 May 2014
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