Haykal and Krawiec
[2012] FamCAFC 115
FAMILY COURT OF AUSTRALIA
| HAYKAL & KRAWIEC | [2012] FamCAFC 115 |
| FAMILY LAW ─ APPEAL ─ Application to extend time to appeal ─ Where the Court was satisfied that the father should be given the opportunity to have his day in court ─ Where as a condition precedent for an extension of time to appeal the father is to comply with previous costs orders made against him. |
| Family Law Act 1975 (Cth) |
| Gallo v Dawson (1990) 93 ALR 479 Lindon v the Commonwealth (No 2) (1996) 136 ALR 541 |
| APPELLANT: | Mr Haykal |
| RESPONDENT: | Ms Krawiec |
| FILE NUMBER: | SYC | 731 | of | 2009 |
| APPEAL NUMBER: | EA | 85 | of | 2012 |
| DATE DELIVERED: | 24 July 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 24 July 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 May 2012 |
| LOWER COURT MNC: | [2012] FamCA 379 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Breeze |
| SOLICITOR FOR THE APPELLANT: | Sydney Wide Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell |
| SOLICITOR FOR THE RESPONDENT: |
Orders
That provided that within 28 days of this day the appellant father;
(a)pay the respondent mother’s agreed assessed costs in this application in the sum of $3,000,
(b)lodge as security for costs of his proposed appeal the sum of $5,000,
(c)comply with the orders of the Federal Magistrates Court of 11 February 2012 and pay $1,365 by way of costs to which the wife is entitled pursuant to that order, and
(d)comply with the orders of Registrar McNamara of 21 March 2012 and pay the sum of $2,064.27 by way of costs to which the wife is entitled pursuant to that order,
the time within which the appellant lodge an appeal against orders of the Honourable Justice Murphy made on 18 May 2012 be extended to 4pm 35 days from this date.
That in the event that either party files a Notice of Appeal against any order for costs made by Justice Murphy in relation to the parenting proceedings of 18 May 2012, such appeals be consolidated and heard with the husband’s appeal against parenting orders made by Murphy J on 18 May 21012 if the husband complies with order 1 of these orders.
That provided that the terms of order 1 hereof have been fully complied with, the Draft Notice of Appeal annexed to the affidavit of the appellant father sworn 27 June 2012 be deemed to have been filed in accordance with the leave granted by Order 1 hereof.
That the matter be referred for hearing before a bench of three Judges.
That the appellant father be responsible for the preparation of the appeal books.
That the appeal books for the appeal are to comprise each of the following documents arranged in the following order: OR That the appeal books be prepared in accordance with the Draft Appeal Index.
· Any Amended Notice of Appeal;
· Orders of the trial Judge;
· Reasons for judgment of the trial Judge;
· Transcript of the proceedings relevant to the appeal;
· Application and response and any relevant affidavit material;
· Exhibits tendered before the trial Judge; and
· Summary of Argument.
That the solicitors for the appellant father file in the Sydney Registry of the Court within 42 days of the date hereof four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve two (2) copies of the appeal books on the solicitors for the respondent wife, together with a copy of the certificate.
That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
That each party have liberty to apply for any further directions to the Honourable Justice Coleman (or if not reasonably available to another member of the Appeal Division) upon four (4) days notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
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).
| THE APPELLATE COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 85 of 2012
File Number: SYC 731 of 2009
| Mr Haykal |
Appellant
And
| Ms Krawiec |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 18 May 2012, Murphy J dismissed a parenting application by the father of the children referred to in such application. In short, as his Reasons for Judgment of 18 May 2012 reveal, his Honour concluded that the father’s parenting application, which was resisted by the mother of the children the subject of the application, should be summarily dismissed. A reading of his Honour’s Reasons makes clear that his Honour’s decision was informed by his conclusion, most directly stated at paragraph 31 of his Reasons, that the father’s parenting application was, in substance, no more than an attempt to re-agitate issues that were determined in earlier parenting proceedings which had been determined by Walker FM, whose determination did not provoke any challenge by way of appeal.
The applicant, as the father now necessarily is, filed an application on 27 June 2012 seeking an extension of time to appeal against Murphy J’s orders of 18 May 2012. As his learned Counsel suggested, the father was, accordingly, at that time, some 12 days out of time. In his affidavit in support of the application for an extension of time, the father provides a reasonable explanation for his failure to appeal within time against Murphy J’s orders. The Court would not, on the basis of the explanation for the failure to file the appeal within time, decline to extend time in the father’s favour if doing so was otherwise indicated.
To determine that question requires the consideration of two issues. The law is not in doubt in relation to the issues which are relevant for present purposes, and, in their submissions, learned Counsel for both parties have referred in some detail to those authorities. As both Counsels’ submissions recognised, probably the most authoritative statement, which has been restated subsequently by other courts, including intermediate appeal courts, has been that of McHugh J of the High Court in Gallo v Dawson (1990) 93 ALR 479, the substance of which, at the risk of oversimplifying what his Honour there said, is that if to apply the rules with respect to time strictly could visit an injustice upon a party, then, subject to a consideration of three factors, the rule should be waived to enable the applicant to file an appeal.
Reference has been made to the first of those matters. That is not to say that by referring first to the explanation for delay that it is the most significant or the first matter of significance, but, simply, in the circumstances of this application, it was convenient to refer to that first because it is, as explained, a fairly simple matter to determine.
The second matter is, and again the authorities variously express it, the appearance or absence of appearance of merit in the proposed appeal. As suggested to learned Counsel for the mother, at its best, it can be said, on the material presented, that the proposed appeal by the father is not necessarily demonstrably hopeless. It is unnecessary and quite artificial to speculate beyond that, and probably unnecessary to say more, except that the comparative absence of obvious potential merit does place greater focus upon the third factor to which regard must be had than would be the case if the prospect of merit were greater.
The third relevant factor, and the one which is decisive, for present purposes, is the question of prejudice to the mother. As is not in doubt, the mother has been put to expense in resisting this application. Given the absence of apparent potential merit in the appeal, and the Court’s conclusion that the low threshold of not demonstrably hopeless has been invoked, it is entirely reasonable that the mother resisted this application, and will resist the appeal, if there be one. There is a presumption that the decision of the trial Judge is correct in law. That has been the law since at least the early 1950s when the High Court so held, and has consistently so held since that time.
The hurdles to success of appeals against discretionary judgments are also well known and have been so since the High Court explained them 76 years ago (see House v The King (1936) 55 CLR 499). Those obstacles have not become less in the ensuing period. It must be accepted that the prospects of the appeal, if there is to be one, being successful are extremely limited. In those circumstances, it is a legitimate consideration to place the mother in the position where, if she is successful, she is not financially disadvantaged, at least insofar as party and party costs are concerned.
The Court raised with Counsel for the father, in relation to prejudice to the mother, two particular issues, one being the payment of the costs of this application, as a condition precedent to an extension of time to appeal, it being inevitable, in the circumstances of this application, that the father would be ordered to pay the mother’s costs, if, as he seeks, he is to be given the indulgence of an extension of time.
The second issue related to security for costs of the appeal. Sensibly, the father heeded the sound advice of his learned Counsel and agreed that the imposition of security for costs, and the quantum of such security could properly be a condition precedent to the extension of time.
At the heel of the hunt, as it were, learned Counsel for the mother reminded the Court that in her cross-application, the mother had sought that the father comply with two previous costs orders made against him in her favour. Those costs orders were made by Registrar McNamara on 21 March 2012, in the sum of $2064.27, and by Walker FM on 11 February 2012, in the sum of $1365. Although the Court gathers that the father wishes to challenge or protest against those orders in some way, there is no evidence that he has, in the case of Registrar McNamara’s order, filed a review or an application for an extension of time within which to do so, or, in the case of Walker FM’s order, filed an appeal or an application for the extension of time within which to do so.
Those orders have not been complied with, and that non-compliance has continued for quite some months now, having regard to when they were made, and the seven day period for payment provided for by them. As learned Counsel for the applicant, quite properly and responsibly, acknowledged, it would be open to the Court to decline to even hear the father’s application until he purged his contempt with respect to those orders.
To the extent that any challenge to the jurisdiction to make an order that the father comply with the earlier costs orders as a condition precedent to an extension of time is concerned, the Court does not understand there to be fetters upon its discretion in relation to the terms and conditions upon which an extension of time can be granted. It would make a mockery of the orders of the subordinate courts with respect to costs for this Court to simply ignore the lengthy and ongoing breach of the father, in circumstances where he comes to the Court seeking an indulgence.
Thankfully, common sense appears to have prevailed, and the father has heeded the sound advice of his learned Counsel, and does not challenge the imposition of a condition precedent of an extension of time that he comply with those orders.
On balance, on the basis indicated, the Court is satisfied that the father should be given the opportunity to have his day in court. As Kirby J has explained in Lindon v the Commonwealth (No 2) (1996) 136 ALR 541 it is the opportunity to be heard which is important. Not every opportunity to be heard is availed of, but at least where it is, the litigant cannot complain, if having failed to comply with conditions attaching to the opportunity, the opportunity is forfeited. Unless the terms of the Court’s orders are strictly complied with the present applicant will forfeit the opportunity which the Court reluctantly grants him.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Coleman delivered on 24 July 2012.
Associate:
Date: 09.08.2012
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