Haykal and Krawiec (No 2)
[2016] FamCAFC 237
•9 November 2016
FAMILY COURT OF AUSTRALIA
| HAYKAL & KRAWIEC (NO. 2) | [2016] FamCAFC 237 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the applicant father failed to file and serve the appeal books – Where the respondent mother and Independent Children’s Lawyer oppose reinstatement – Where the applicant failed to adequately explain the delay – Where the appeal is against a discretionary judgment and the grounds of appeal are unlikely to attract appellate intervention – Where reinstatement of the appeal would significantly prejudice the respondent and the subject child of the proceedings – Application dismissed. |
| Family Law Rules 2004 (Cth): r 22.21 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Mr Haykal |
| RESPONDENT: | Ms Krawiec |
| INDEPENDENT CHILDREN’S LAWYER: | KD Holmes Solicitors |
| FILE NUMBER: | SYC | 731 | of | 2009 |
| APPEAL NUMBER: | EA | 35 | of | 2016 |
| DATE DELIVERED: | 9 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 9 November 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 February 2016 |
| LOWER COURT MNC: | [2016] FamCA 104 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | KD Holmes Solicitors |
Orders
That the Application in an Appeal filed on 11 October 2016 be 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).
| IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 35 of 2016
File Number: SYC 731 of 2009
| Mr Haykal |
Applicant
And
| Ms Krawiec |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
By Application in an Appeal filed on 11 October 2016 Mr Haykal, (“the father”), seeks to reinstate his Notice of Appeal filed on 21 March 2016. The appeal was deemed abandoned because the father failed to file the appeal books by 5 October 2016. Orders for him to do so were made on 25 May 2016 which means that the father was given some five months within which to prepare and then file the appeal books. As a consequence of his failure to do so, the application of r 22.21 of the Family Law Rules 2004 (Cth) (“the rules”) has the effect that the appeal was deemed abandoned. Hence the application for reinstatement.
The mother, Ms Krawiec is the respondent to the appeal and the application for reinstatement. It is her position that the application should be dismissed.
Mr Holmes of KD Holmes Solicitors is the Independent Children’s Lawyer (“ICL”) appointed to represent the parties’ daughter who is the subject of the appeal proceedings (“the child”). In written submissions provided in this application the ICL said the application for reinstatement should be dismissed. The argument against reinstatement is captured quite tidily at paragraph 2 of the written submissions of the ICL. It is said that these are quite extraordinary proceedings, that have gone on for many years in one form or another, and that to permit the litigation to continue in circumstances where it is said there is no merit in the appeal “merely tragically prolongs the immense burden of this litigation upon each of the child and the primary caregiver.”
That statement masks an extraordinary history of litigation in relation to the child.
The child was born in 2002 and was about six years old when her parents separated. Litigation about the child and her brother, as well as other matrimonial matters, commenced in January 2009 and has continued unabated. The point being that for over half of the child’s life she has lived in the shadow of stressful litigation about her and other aspects of her family. It is a terrible burden for any child, and if this application for reinstatement is granted, it simply prolongs the burden on the child.
Applicable law
The principles relating to applications to reinstate an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. Although that case dealt with an extension of time to appeal, the principles also apply to an application to reinstate an appeal (Rand & Rand [2009] FamCAFC 88). At page 480 the High Court said:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.
This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.
The decision of the High Court in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516, in particular, Gummow and Hayne JJ at [33] is also relevant:
…[W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
As will shortly be explained, all other things are not equal, and the application for reinstatement will be dismissed.
Delay
Turning then to the applicant’s explanation for his failure to file the appeal books. The explanation is brief and is simply that the applicant lost track of when the appeal books were due. The error is therefore one of omission and, it would seem to be suggested, not one of disinterest in being able to prosecute the appeal. Because of that explanation and the extraordinary history of appeals initiated by the applicant bar one all of which were discontinued or abandoned, I asked the applicant to indicate whether the appeal books have now been prepared. The gist of his response, relevant to the point, is that the appeal books have not yet been prepared, and it would be another four weeks or so before they would be. Tellingly, the appeal books will not include the trial transcript. An appellant as experienced as the applicant would understand that an appeal against a discretionary judgment prosecuted without the trial transcript is a very challenging prospect indeed.
I was left quite troubled about whether, even if I did reinstate the appeal, the appeal books would, in fact, be filed within four weeks. The applicant was at pains to address his very difficult financial circumstances, and rhetorically commented more than once about how could he be expected to find the two to three thousand dollars required to file the appeal books. The total explanation concerning a delay and the prospect of compliance tends to suggest that reinstatement would be an exercise in futility.
Merits of the appeal
Turning then to the merits of the appeal. Of necessity, this discussion involves a degree of caution, but my preliminary assessment of the grounds of appeal is that it would be highly unlikely if prosecuted without a transcript, to gain appellate intervention. The grounds as framed are either lacking in necessary particularity or go to what can be seen as a quintessential exercise of discretion of the primary judge. Otherwise, the grounds focus very much on the applicant’s assertion of his rights in relation to his daughter, and fail to come to grips with the central tenets of the judgment under appeal that the child does not want to communicate with her father or see him. She has not done so since December 2013.
The child was 13 at the time of trial and absent clear grounds which go to his Honour’s findings about the child’s views, her maturity, and why those views should be given the obvious substantial weight which they were given, it is very difficult to see that the appeal would have even modest prospects of success. The lack of merit in the appeal weighs against reinstatement.
Prejudice is a significant issue, as the decision in Jackamarra makes plain. The ICL, as I have already said, pointed to the stress inherent in more litigation about the child, on the child and on the respondent. It is a burden the court would not likely impose on the child or her mother. The obvious prejudice to the wellbeing of the child and her primary carer as a consequence of more litigation weighs heavily against reinstatement.
I also take into account that the applicant has been the subject of orders for costs in the past, none of which he has complied with. It appears to be common ground before me this morning, one of the few matters upon which the parties were able to agree, that an order was made by Murphy J for the applicant to pay the respondent’s costs in the amount of some $80,000. The applicant did not comply with that order and was subsequently, it would appear on the application of the respondent, bankrupted.
An order for the applicant to pay the respondent’s costs of a proceeding in 2014 was made by the primary judge, but that order required the costs to be agreed or assessed. There is no agreement and costs have not been assessed. It follows that the failure of the applicant to comply with that order is of no moment. More recently on 21 April 2016, in a different application in an appeal, the applicant was ordered to pay the respondent’s costs in the amount of $1,400 within 28 days. The applicant has not made the payment and his failure to do so weighs against reinstatement.
The gravamen of the applicant’s submissions today is that he will never pay an adverse order for costs. An order for costs in relation to, for example, an unsuccessful appeal, were it to be reinstated, would be an exercise in futility because the applicant, on his track record, will simply refuse to pay it. That poor track record weighs heavily against reinstatement of an appeal which is presented on very weak grounds.
The applicant says he would be prejudiced if the appeal is not reinstated because he is wrongly denied a relationship with his daughter. It is accepted that reinstatement means that the applicant almost certainly will have no relationship with the child for a long time. This factor weighs in favour of reinstatement, but only in a small way. This is because, as I have already indicated, of the strength of the judgment under appeal and the strength of the child’s views.
Conclusion
The net effect of the matters that weigh in favour of reinstatement compared to those which weigh against reinstatement overwhelmingly favour dismissal of the application to reinstate and that will be the order made.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 9 November 2016.
Associate:
Date: 29 November 2016
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