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
House v The King (1936) 55 CLR 499

Lindon v the Commonwealth (No 2) (1996) 136 ALR 541

APPELLANT:

Mr Haykal

RESPONDENT:

Ms Krawiec

FILE NUMBER:

SYC

731

2009

APPEAL NUMBER:

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;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FamCAFC 115
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an appeal from Mr Haykal against an order made by Justice Murphy on 18 May 2012, dismissing his parenting application. Mr Haykal sought an extension of time to appeal against the order. The mother, Ms Krawiec, opposed the application. The central legal issues before the court were whether the time extension should be granted considering the father's delay in filing the appeal and the potential prejudice to the mother if the extension was allowed. The court considered three factors in determining whether to grant the extension: the explanation for the delay, the potential merit of the appeal, and the prejudice to the mother if the extension was granted.

The court found that while the delay was not significantly explained, the appeal did not appear to be demonstrably hopeless. Given the low potential for success, the court considered it reasonable for the mother to oppose the extension and for her to be protected from financial prejudice if the appeal were to proceed. The court decided that as a condition for granting the extension, the father must comply with previous costs orders made against him. The father agreed to this condition, and the court concluded that he should be given the opportunity to be heard in court. The court granted the extension on the condition that the father complied with the costs orders and paid security for the costs of the appeal.

The court ordered that Mr Haykal must pay the respondent's agreed assessed costs, lodge security for the costs of the appeal, and comply with previous costs orders before the time for lodging an appeal would be extended. The court also ordered that if either party appealed the costs orders, those appeals would be consolidated with the appeal against the parenting orders. The father was responsible for preparing the appeal books, which were to include specific documents in a particular order. The court further ordered that the father's solicitors must file and serve copies of the appeal books within a specified timeframe. The court also noted that publication of this judgment under the pseudonym Haykal & Krawiec had been approved by the Chief Justice.

Orders