GUPTA & GUPTA
[2017] FamCAFC 155
•2 August 2017
FAMILY COURT OF AUSTRALIA
| GUPTA & GUPTA | [2017] FamCAFC 155 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where explanation for the failure to file a Notice of Appeal in a timely way is inadequate – Where the draft notice of appeal does not identify appellable error – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the orders appealed are not amenable to appeal – Application dismissed. |
| Family Law Act 1975 (Cth) s 4(1) Family Law Rules 2004 (Cth) rr 22.02, 22.03, 22.12 |
| Commonwealth v Mullane (1961) 106 CLR 166 Gallo v Dawson (1990) 93 ALR 479 Tallant & Kelsey [2016] FamCAFC 207 |
| APPLICANT: | Mr Gupta |
| RESPONDENT: | Ms Gupta |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | PAC | 5828 | of | 2008 |
| FIRST APPEAL NUMBER: | EA | 79 | of | 2017 |
| SECOND APPEAL NUMBER: | EA | 80 | of | 2017 |
| DATE DELIVERED: | 2 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 2 August 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 February 2017, 15 May 2017 |
| LOWER COURT MNC: | NA |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel |
Orders
That the Application in an Appeal in appeal EA 79 of 2017 be dismissed.
That the Application in an Appeal in appeal EA 80 of 2017 be dismissed.
In the application regarding EA 79 of 2017, the applicant pay the costs of the Independent Children’s Lawyer in the amount of $500 to be paid within two months.
In the application regarding EA 80 of 2017, the applicant pay the costs of the Independent Children’s Lawyer in the amount of $500 to be paid within four months.
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 Gupta & Gupta 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).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 80 of 2017; EA 79 of 2017
File Number: PAC 5828 of 2008
| Mr Gupta |
Applicant
And
| Ms Gupta |
Respondent
And
Brian Samuel
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Before the court today are two applications and supporting affidavits both filed on 13 July 2017 by Mr Gupta (“the father”) seeking an extension of time to appeal against two sets of orders made by Judge Hughes during the course of a defended final hearing.
It is noted in both applications that the father seeks an order to adduce further evidence in the appeals. All that needs to be said on this point is that in the event he is given an extension of time in relation to one or both of the applications, those matters are for the Full Court hearing the relevant appeals and need not be addressed today.
The parenting proceedings concern the parties’ two sons (“the children”). Ms Gupta (“the mother”) is the children’s mother and the respondent to the applications. She has appeared by telephone today, and it is her position that both applications should be dismissed. An independent children’s lawyer (“ICL”), appointed to represent the children’s interests, adopts the same position.
The first proposed appeal (EA 79 of 2017) relates to orders made on 21 February 2017 which dismissed the father’s oral applications for the children to be placed on the airport watch list and for the father to spend supervised time with the children during the adjournment period, which was from 21 February 2017 until 15 May 2017, when the hearing was to resume before her Honour.
By his draft Notice of Appeal filed in EA 79 of 2017 the father seeks orders that the children be placed on the airport watch list and that he spends time with the children, supervised or otherwise, between 9:00am to 8:00pm on Sundays.
The second proposed appeal (EA 80 of 2017) relates to orders made on 15 May 2017 which dismissed the father’s application filed 4 May 2017 seeking to serve a subpoena on a witness by Facebook, and his oral application to rely on affidavit material and statutory declarations filed from 28 March 2017 to 8 May 2017.
By his draft Notice of Appeal the father seeks, inter alia, that his application of 4 May 2017 and the oral application of 15 May 2017 be allowed. As I explained to the father, during the course of the hearing this morning, an appeal lies against a decree. Decree is defined by section 4(1) of the Family Law Act 1975 (Cth) (“the Act”) as:
Decree means decree, judgment or order and includes:
a)an order dismissing an application; or
b)a refusal to make a decree or order.
Otherwise, as I said in Tallant & Kelsey [2016] FamCAFC 207, following Commonwealth v Mullane (1961) 106 CLR 166:
[21] …rulings on the admissibility of evidence have routinely been held not to be interlocutory judgments (or orders or decrees) which are amenable to appeal.
Nor, in my view, is her Honour’s rejection of the father’s application to permit him to serve a subpoena by Facebook. Her Honour’s ruling, in that respect, did not conclude the rights of the parties in relation to the issue. To that extent, the proposed appeal EA 80 of 2017 is incompetent and an extension of time will not be given.
Relevant background
As is apparent from the submissions made today, this has been a long, ongoing and fraught piece of litigation. However, for the purposes of today I will not delve into this history deeply and will outline only those facts that are relevant to the application that requires further consideration.
The father was born in 1973 and the mother in 1975.
The parties married in India in February 2003 and, in June of that year, moved to live in Australia.
There are two children of the relationship, to whom reference has been made.
As I understand it, in 2008 the father returned to India to live. The mother was expecting the parties’ second child, and she and the elder child remained in Australia.
Final parenting orders were made in favour of the mother on 18 November 2010. Relevantly, those orders provide that the mother has sole parental responsibility for the children, that the children live with her, and permit her to travel with the children internationally.
The parties divorced in 2012.
As I understand it, the father did not have face to face time with the children from when he returned to India in 2008 until sometime in August 2013 when he returned to Australia albeit briefly. From that point until February 2015 it would seem that the father was able to communicate with the children by Skype. During that period, he had largely returned to India, but he came back to Australia sometime between February and May 2015, and not long afterwards filed an application for parenting orders.
Interim parenting orders were made by Judge Dunkley on 7 August 2015 enabling the father to spend time with the children under supervision at a contact centre and by Skype. Further orders were made to that effect on 22 December 2015. The parties disagree about the extent of the mother’s compliance with those orders, but what does seem to be the case is that there has been no time spent by the father with the children, pursuant to those orders, for a considerable period of time.
The final hearing commenced before Judge Hughes in February 2017. The children were represented by the ICL, and the parties appeared without legal representation.
It would seem that when the hearing could not be completed in the time allocated, the judge indicated the dates when the hearing would resume and the oral applications, to which reference was made, were advanced by the father, with the judge’s leave, on 21 February 2017. These were the applications for the children to be placed on the watch list and for the father to have supervised time. As I have said, the father already has an order for supervised time. The application was dismissed.
The hearing resumed on 15 May 2017 and continued for three days. The rulings on evidence, and the dismissal of the application to serve a subpoena by Facebook, were made on 15 May 2017. Her Honour’s reasons in relation to the oral applications of 21 February 2017, and the applications of 15 May 2017, have not been published in written form. It may be that the reasons would be apparent from the transcript, but the transcript has not been proffered in the applications.
Discussion
Chapter 22 of the Family Law Rules 2004 (“the rules”) deals with appeals. Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal. Rule 22.03 sets out the timeframe within which an appeal is to be filed. Rule 22.02 provides for a party to make an application for leave to appeal and r 22.12 sets out some examples of procedural orders which may be made in respect of such applications.
In this case, the last day for filing an appeal in respect of EA 79 of 2017 was 21 March 2017, and in respect of EA 80 of 2017 was 12 June 2017.
The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. 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 the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave.
In order to determine whether or not compliance with the times fixed by the rules would have the rules become instruments of injustice, it is necessary to consider the possible merits of the proposed appeal. The point being, refusal of an application for an extension of time in relation to an unmeritorious appeal would not work an injustice.
The contents of the father’s affidavits filed in support of the two applications are identical.
At the time of filing his affidavit evidence, the father had not received copies of the orders made by Judge Hughes on 21 February 2017 or 15 May 2017, or any reasons for judgment. However, nothing really turns on this fact. Given the nature of the applications and the circumstances generally, her Honour’s failure to publish settled reasons is quite understandable.
The father explains his delay in relation to the orders of 15 May 2017 as him understanding that final orders were likely to be forthcoming in a matter of days, and so he waited for the final orders which, of course, have not come. At some point, he decided that he would seek to challenge the orders of 15 May 2017, conscious that he was then doing so out of time. This provides no explanation for his failure to lodge an appeal against the orders of 21 February 2017 in a timely way.
Although it is accepted that the father has some explanation in relation to the delay concerning the proposed appeal against the orders of 15 May 2017, it is not accepted that he has provided a reasonable explanation in relation to the failure to lodge an appeal in time against the orders of 21 February 2017.
Turning to the grounds of appeal, the grounds in the draft notices do not identify appellable error by the primary judge. It is not for an appeal court to have to search files and transcripts to try and discern an error. As best one could describe it, the draft notices attempt to argue the issue de novo, but they do not identify an appellable error.
In short, the father has not established that he has even remote prospects of success in relation to either of the proposed appeals.
I am of the view that there would be no injustice in refusing the father’s applications for an extension of time, and they will be dismissed.
Costs
An application is made by the ICL that the applicant father pays the cost of the ICL of these unsuccessful applications.
The amount sought is $2090 which is the amount payable by legal aid in relation to an appeal and does not relate to the costs of these applications in an appeal.
The father resists the application for costs. He acknowledges he has been wholly unsuccessful but points to, he says, his limited financial circumstances and argues that an order for costs in favour of the ICL would occasion financial hardship. If I was satisfied that was the case, an order for costs in favour of the ICL could not be made. However, the material placed before the Court is that the father owns a taxi and is both an owner and an operator. He also has a small business as an IT professional. He has expenses outstanding in relation to the hearing fees payable for the hearing before Judge Hughes.
Whilst I accept that an order for costs against the father would occasion a degree of financial discomfort, I am not satisfied that it would occasion hardship. Moreover, given the lack of success and the nature of the applications, an order for costs in favour of the ICL is appropriate.
Having regard to the amount of time that has been taken and the fact that the ICL was not required to file any documents in the proceedings, I propose to make an order for costs in the amount $1000. That will be $500 allocated to each of the applications. In order to moderate the financial discomfort, the father will have two months to pay the first sum of $500 and four months to pay the second.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 2 August 2017.
Associate:
Date: 9 August 2017
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