Haykal and Krawiec

[2016] FamCA 754

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC [2016] FamCA 754

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father sought an adjournment of his application to stay final parenting orders pending his appeal to Legal Aid New South Wales regarding their refusal to grant him Legal Aid in respect of his appeal in this Court – Where the application for a stay of orders had previously been adjourned at the father’s request – Where the father has failed to provide an adequate explanation for his delay in lodging an appeal to Legal Aid – Where the father’s application for Legal Aid had been refused on merit – Application for adjournment dismissed – Where upon dismissal of his application for an adjournment the father refused to present his application for a stay – Application for a stay of orders dismissed.

Family Law Act 1975 (Cth)
Legal Aid Commission Act 1979 (NSW) – ss 56, 57

APPLICANT: Mr Haykal

RESPONDENT: Ms Krawiec

INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors

FILE NUMBER: SYC 731 of 2009

DATE DELIVERED: 17 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 17 June 2016

REPRESENTATION

FOR THE APPLICANT: Mr Haykal in person

FOR THE RESPONDENT: Ms Krawiec in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bateman of KD Holmes Solicitors

Orders

1. That the father’s application for an adjournment of the stay proceedings is dismissed.

2. That it is noted that having dismissed the father’s application for an adjournment the father refuses to present his application for a stay and the Independent Child Lawyer has asked for such application to be dismissed.

3. That in circumstances where the father refuses to present his stay application filed on 21 March 2016 such application is dismissed.

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 Haykal & Krawiec 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).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 731 of 2009

Mr Haykal

Applicant

And

Ms Krawiec

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application in a Case filed by Mr Haykal (“the father”) for orders to stay most of the final parenting orders made by me on 26 February 2016 in relation to the child N born in 2002.

2. This application initially came before the Court on 31 March 2016 on which occasion the father asked the Court to adjourn his application for a stay on the basis that he had applied to Legal Aid New South Wales for a grant of legal aid to have a solicitor represent him in relation to an appeal and his stay application.

3. Mr Haykal filed a Notice of Appeal on 21 March 2016 appealing against most of the substantive parenting orders made on 26 February 2016. 

4. On 31 March 2016 I noted that the father was in the process of making an application for legal aid in respect of his appeal and his application for the stay.  I granted the adjournment application and I stood over the stay application for hearing today.

5. I made directions that the mother file and serve a response and all affidavits in response not later than 10 June 2016.  The mother filed her response and an affidavit in response to the father’s application on 10 June 2016.  I also made a direction that any further affidavit by the father be filed and served not later than 25 May 2016.  No such affidavit has been filed.

6. At the outset of the hearing of the stay application today, the father sought an order that the hearing of the stay proceedings be adjourned.  This was on the basis that his application for legal aid had been refused and he indicated that he proposed to lodge an appeal to Legal Aid New South Wales against that refusal.  He said that he had 28 days in which to lodge such appeal and the 28^th day was, in fact, up today.

7. I note that s 56 of the Legal Aid Commission Act 1979 (NSW) provides, in effect, that a person dissatisfied with a determination of their application for a grant of legal aid may appeal to a Legal Aid Review Committee.

8. Subsection 56(2) provides in effect that such an appeal shall be in writing and shall be lodged with the Commission within a period of 28 days after the date on which notice of the determination was given to the applicant.

9. I arranged for copies of ss 56 and 57 of the Legal Aid Commission Act 1979 to be handed to each of the parties.  The notice from Legal Aid New South Wales to the father informing him that his legal aid had been refused was by way of a letter from Legal Aid New South Wales dated 20 May 2016.  Accordingly, as I have said, the 28 day period expires either today or at the latest, on Monday, 20 June 2016.

10. Section 57 of the Legal Aid Commission Act 1979 requires a court to adjourn proceedings where it appears to the court that a party to proceedings intends to appeal to a Legal Aid Review Committee and that the intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or delay the conduct of the proceedings and that there are no special circumstances that prevent the court from doing so. 

11. As I said in my reasons for judgment on 26 February 2016, the father and the mother have been engaged in a most extensive amount of litigation in this and other courts over many years.  As I have said, the father filed his Notice of Appeal and his application for a stay on 21 March 2016 and, as I have said, I have already adjourned the application for a stay on the earlier occasion. 

12. The father made his application for legal aid on 13 April 2016 and he was notified on 20 May 2016 that his legal aid application had been refused.  He has had four weeks to lodge his appeal against the refusal.  He has not done so but he comes to Court today and informs the Court that he proposes to lodge his application today. 

13. The only explanation the father gives about why he has not filed his application up to the time of the stay hearing today is that he says some unidentified person informed him that this Court would have power to be able to order Legal Aid New South Wales to make the grant of aid.  In fact, in my view, what the father has done is he simply left his right to lodge appeal to the last day.  He has not given any other explanation.  He has had four weeks to do so.  And I do not regard that as any satisfactory explanation for his delay. 

14. I asked the father whether he had prepared a written appeal against the refusal of legal aid and he referred to the letter dated 20 May 2016 from Legal Aid New South Wales and pointed to a blank form on the back of that letter and said that is what he proposed to do.

15. It is clear that the father’s application for legal aid had been refused on the basis firstly, that it does not satisfy the merit test, that is, that his appeal does not have reasonable prospects of success.  Secondly it failed the appropriateness of spending limited public legal aid funds test. 

16. In all these circumstances, in my view, s 57 of the Legal Aid Commission Act does not require this Court to adjourn the father’s stay application.  I am not satisfied that a reasonable explanation for the delay has been provided.  The father does not have a proper legal aid appeal prepared and he has left it to the last day.  I know from previous experience something about Ms Krawiec’s financial circumstances.  She conducts a small business.  She has the sole responsibility for the parties’ daughter, N, and she receives the minimum amount of child support from the father.  She has made a vast number of appearances in this Court, many of them at the behest of the father.

17. Bearing this in mind and the effect of a further adjournment on the public purse in the form of Legal Aid New South Wales funding Mr Bateman’s appearance today for the Independent Child Lawyer, in my view, it would not be appropriate to grant the adjournment.

18. When it became clear to the father that he had been unsuccessful in his adjournment application, he refused to present his application for a stay of the orders of 26 February 2016.  In such circumstances I could see no course other than to dismiss his application for the stay. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 17 June 2016.

Associate:     

Date:              7 September 2016