Haykal and Krawiec (No 2)

[2016] FamCA 1016

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC (NO 2) [2016] FamCA 1016

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks to reinstate an application for a stay of substantive orders pending the hearing of an Appeal – Where the father’s stay application had been dismissed on the basis that the father refused to present his application following the dismissal of his adjournment application – Where the father has been granted two extensions of time to file and serve material in support of his application on the basis of awaiting the outcome of his appeal to the Legal Aid Review Committee to provide him with legal assistance – Where the father failed in his appeal to the Legal Aid Review Committee against refusal to provide him with a grant of legal aid – Where the Court made it clear that the father’s application would be dealt with in chambers based on the vast number of occasions the father has brought applications that the mother and Independent Child Lawyer have had to respond to – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Haykal

RESPONDENT: Ms Krawiec

INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors

FILE NUMBER: SYC 731 of 2009

DATE DELIVERED: 25 November 2016 (in chambers)

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 25 November 2016 (in chambers)

REPRESENTATION

FOR THE APPLICANT: No appearance

FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: No appearance

Orders

1. That the father’s Application in a Case filed on 12 July 2016 and his Application in a Case filed on 30 September 2016 be dismissed.

2. That the father serve a sealed copy of these orders on the mother and on the Independent Children’s Lawyer as soon as possible and not later than 7 December 2016.

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 (No 2) 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. On 12 July 2016 Mr Haykal (“the father”) filed an Application in a Case seeking the following orders:

   1.The orders made in the family court Sydney on 17/06/2016 Be stayed pending the Appeal to Legal Aid NSW by the Applicant father outcome and

   2.The application filed on 21/03/2016 for the stay of the orders of 26/02/2016 be reinstated/and or be on stay pending the final outcome of the Appeal to Legal Aid NSW By the father for a grant of Aid to apoint (sic) A Family Lawyer to Represent the father “Applicant”.

Background

1. On 26 February 2016 I made orders in substantive parenting proceedings between the father and the respondent Ms Krawiec (“the mother”) in relation to their daughter N born in 2002.  In summary the orders provided for all previous parenting orders to be discharged, the child to live with the mother, for the mother to have sole parental responsibility for the child and for the child to spend time with her father in accordance with her wishes.  I also restrained the father from attempting to arrange any time with the child.

2. The father has appealed against those orders.  He filed an Application in a Case on 21 March 2016 seeking that the orders against which he has appealed be stayed.

3. On 17 June 2016 the father, the mother and the solicitor for the Independent Children’s Lawyer Mr Bateman all appeared at Court for a hearing of the father’s Application in a Case filed on 21 March 2016.

4. On 17 June 2016 the father sought an adjournment of his said Application in a Case.  I heard that application and made the following 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)In circumstances where the father refuses to present his stay application filed on 21 March 2016 such application is dismissed.

5. It is those orders which the father now seeks to have stayed.

Background

1. On 20 July 2016 I considered the father’s 12 July 2016 Application in a Case in chambers.  I noted that the father anticipated being informed by 18 August 2016 about the outcome of his appeal to a Legal Aid Review Committee against refusal of his legal aid application. On 20 July 2016 I made the following orders:

   1. That the father’s application in a case filed on 12 July 2016 will be considered in chambers after 23 August 2016.

   2.That the father forthwith serve each other party with the application and material in support.

   3.That the father file and serve all affidavits and written submissions in support of the said application not later than 23 August 2016.

2. On 22 August 2016 the father filed an Application in a Case seeking an extension of time to file and serve all affidavits and written submissions in support of his Application in a Case filed on 12 July 2016. I considered this application in chambers and made the following orders on 6 September 2016:

   1.The time for the father to file and serve all affidavits and written submissions in support of his Application in a Case filed 12 July 2016 is extended to not later than 30 September 2016.

   2.That the father’s Application in a Case filed on 12 July 2016 will be considered in chambers after 30 September 2016.

3. On 30 September 2016 the father filed an Application in a Case in which he sought the following orders:

   1.The Application in A Cased file on 22/8/2016 to Be Relisted in chambers – the family Court to Allocate the date for the final Hearing of the Application.

   2.The family Court to order the dates each party (is) to file And serve All evidence to rely on.

   3.The final Hearing in Attendance of all parties.

4. As I have indicated above, on 20 July 2016 my order made it clear that the father’s Application in a Case for a stay of the orders made on 17 June 2016 would be considered in chambers.  As also indicated I extended that time on the father’s application.  In all the circumstances including the vast number of occasions the father has brought applications before the Court, the fact that the mother has had to respond to such applications and public money has had to be spent to fund the Independent Child Lawyer, I do not propose to make the order sought by the father in his Application in a Case filed 30 September 2016 to allocate a date for hearing the 12 July 2016 Application in a Case in the courtroom.  I maintain my decision to determine this application in chambers.

5. The father filed his affidavit on 30 September 2016 in accordance with the extension of time which had been granted to him on 6 September 2016. Amongst other matters deposed to in that affidavit is the following:

   3- I herein declare that my application to the legal aid review committee appealing the legal aid NSW decision to deny me a legal aid funded lawyer to represent my relating parenting matter applications both in the family court of Australia and the full family court of Australia SYDNEY 2000 has already been concluded and I do have the result of that appeal and its final. There for am calling up on this matter to be listed for final hearing in attendance of all parties with the dates for all parties to file and serve their applications affidavits and case outline as per the family court of Australia law  rules ““THE RULES””

6. I infer from this paragraph that the father has failed in his appeal to the Legal Aid Review Committee against the refusal to provide him a grant of legal aid for any further legal action by him. In these circumstances, I now propose to consider the father’s application for a stay.  I have read the father’s affidavit filed 30 September 2016.

7. As I have indicated above, the first order sought by the father in his Application in a Case filed 12 July 2016 is for the orders made on 17 June 2016 to be stayed pending the outcome of the father’s appeal to the Legal Aid Review Committee. So the period in respect of which the stay order was sought was up to that time. That time has now passed and, accordingly, there is no utility in making any such order.  I propose to dismiss that part of the application.

8. In relation to the second order sought by the father in his said Application in a Case, I interpret this to be an application to reinstate his application filed on 21 March 2016 for a stay of the substantive orders. I must say I can see no utility in making such an order for a stay.  If that stay application was no longer in a state of having been dismissed the situation would be that the father would then be able to bring his stay application with respect to the substantive orders.  But I can see no utility in this.  This is because if the father was successful in having the substantive orders of 26 February 2016 stayed the previous parenting orders would come back into operation and the relevant order would be an interim order made on 15 August 2014 that the final parenting orders in relation to N spending time with and communicating with the father be suspended.  Accordingly, in my view the stay which the father is endeavouring to achieve would not have the effect of bringing into operation any order for the father and N to be spending time with one another.

9. In all these circumstances, in my view, the appropriate course is to dismiss the father’s relevant applications.

10. The father has taken the appropriate course and lodged his appeal in circumstances where clearly he is most disappointed about the substantive orders made.  He would be well advised to remain focussed on preparing that appeal and ensuring that the directions ordered by the appeals registrar are complied with to the letter.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 25 November 2016.

Associate:     
Date:              25 November 2016