Jabbar & Gade (No 2)
[2016] FamCAFC 89
•2 June 2016
FAMILY COURT OF AUSTRALIA
| JABBAR & GADE (NO 2) | [2016] FamCAFC 89 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where explanation for the failure to file a Notice of Appeal in timely way is inadequate – Where the proposed appeal is against interlocutory orders – Where consideration of the grounds of appeal establish that it would not occasion an injustice to refuse an extension of time – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks expedition of her appeal against interim parenting orders – Where the applicant’s appeal was filed out of time – Where the application for an extension of time to file the Notice of Appeal was dismissed rendering application for expedition otiose – Application dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth): rr 22.02, 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 Jabbar & Gade [2016] FamCAFC 71 |
| APPLICANT: | Ms Jabbar |
| RESPONDENT: | Mr Gade |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 2265 | of | 2015 |
| APPEAL NUMBER: | EA | 69 | of | 2016 |
| DATE DELIVERED: | 2 June 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 1 June 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 August 2015 |
| LOWER COURT MNC: | [2015] FCCA 3607 |
REPRESENTATION
| FOR THE APPLICANT: | Ms Jabbar in person |
| FOR THE RESPONDENT: | Mr Gade in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Presker (via telephone link) Legal Aid NSW Newcastle |
Orders
That the Applications in an Appeal filed 27 April 2016 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jabbar & Gade (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 69 of 2016
File Number: NCC 2265 of 2015
| Ms Jabbar |
Applicant
And
| Mr Gade |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the Court are two Applications in an Appeal and supporting affidavit material both filed 27 April 2016 by Ms Jabbar (“the mother”) seeking an extension of time to appeal against interim parenting orders made by Judge Terry on 31 August 2015 and if an extension of time is given, also for expedition of that appeal.
In summary, the effect of the orders under appeal is that until further order the children live with the father and spend time with the mother at a contact centre. The orders do not specify how much time the children are to spend with the mother as that ultimately is an issue which requires input from the contact centre and considerations of their availability.
Mr Gade is the children’s father and is the respondent to the application (“the father”). An Independent Children’s Lawyer (“ICL”) has been appointed to represent the children’s interests and has appeared by telephone in this application.
The father argues that there is no basis for an extension of time or expedition. The position adopted by the ICL has been to provide details of further listings in the Federal Circuit Court for which I am grateful.
This matter was before me on 20 April 2016, on which occasion I heard and determined another application for expedition, filed by the mother on 1 April 2016, concerning her appeal against interim orders made on 11 March 2016 by Judge Terry. At the conclusion of the hearing on 20 April 2016 I made orders dismissing the application for expedition and delivered oral reasons. To the extent that I dealt with some of the background facts in that judgment they should be taken into account in these reasons.
In any event, by her draft Notice of Appeal against the orders of 31 August 2015, the mother seeks orders in the same terms as those sought in her appeal against the orders of 11 March 2016. She also seeks an order in relation to the police but it is more in the nature of a complaint than an order. In summary, the orders that would be sought in the appeal are that all previous orders be discharged; that the mother have sole parental responsibility for the children; and that the children live with her and have supervised time with the father at a contact centre for two hours each month. The mother would also be seeking an order that the children not be left alone in the care of paternal relatives, in particular, the paternal grandparents.
Discussion
As I mentioned earlier, the background to the parenting proceedings and the law to be applied in relation to applications for expedition was set out in my reasons for judgment in relation to the mother’s previous application for expedition, published as Jabbar & Gade [2016] FamCAFC 71. Those principles need not be restated. It is sufficient to note that the mother’s raises the same circumstances justifying expedition of this appeal as she did in her previous application for expedition, being an alleged risk to the children in the father’s care and the unsatisfactory nature by which the orders came to be made.
However, if leave is not granted to the mother to file her Notice of Appeal out of time, her application for expedition becomes moot. Thus, I will first consider the application for extension of time.
Chapter 22 of the Family Law Rules 2004 (Cth) (“the rules”) deals with appeals.
Rule 22.02 provides that an appeal is to be commenced by filing a Notice of Appeal.
Rule 22.03 sets out the timeframe within which an appeal is to be filed: namely 28 days. In this case, the last day for filing a Notice of Appeal was 28 September 2015.
The principles relating to applications for an extension of time to file an appeal are set out Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. Discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation, the consequences for the parties of the grant or refusal of leave and the explanation for the delay proffered by the person seeking leave.
In order to determine whether or not compliance with the times fixed by the rules would have the rules become instruments of injustice, it is necessary to consider the possible merits of the appeal. The point being, refusal of an application to extend time for an unmeritorious appeal would not work an injustice.
At this point it became impossible to continue to deliver my reasons for judgment. The mother started to scream and nothing I said or did caused her to stop. Eventually I told her that if she continued to make it impossible for me to complete my judgment I would adjourn the court and only return when I was satisfied I could deliver the balance of the judgment in acceptable circumstances. I also advised that if I did not return, the balance of the judgment would be published in writing. It became apparent that the mother would not moderate her behaviour and so the reasons that follow are delivered in writing.
With respect to the mother, her affidavit filed in support of her application does not come close to addressing the matters just referred to. The mother’s sole reason for delay is listed at [2] of her affidavit filed on 27 April 2016. The mother refers to the fact that the primary judge made “oral orders” not to give her a copy of the family conference report, and a copy of that report was only provided to her, as I understand it, short after the expiration of the appeal period.
While it is not entirely clear on the material before me what oral order the mother is referring to, in any event the mother’s explanation for the delay fails to explain why, upon receiving a copy of the report after the 28 day appeal period, she still failed to file her notice of appeal. Several months have elapsed since she received the report and filed the draft Notice of Appeal on 27 April 2016. There is no doubt she could have sought an extension of time at the same time, for example, when she sought expedition of her other appeal.
More critical to my consideration of this application, however, is the nature of the orders under appeal, that is, they are interlocutory orders and the merits of the proposed appeal itself.
The grounds advanced by the mother are, with due respect, incomprehensible. The mother contends that the trial judgment is “highly objectionable”, that the orders made on 31 August 2015 are “incorrect”, and that the primary judge refused to provide her a copy of the family conference report. That said, it needs to be understood that the mother was represented and there is no question the parties had access to the report. As I understand it, the mother’s complaint is she did not have her own copy. The grounds as advanced are incapable of establishing error.
Further, as was emphasised to the mother on the hearing of her last expedition application and by the primary judge, the orders which provide for the children to live with father are interim orders which are intended to operate until a family report or report of an expert is completed. That report is scheduled to occur in November 2016. Further, I reiterate my conclusions at [26] of my reasons for judgment in relation to the mother’s previous expedition application, that is, there are safeguards in place to address many aspects of the mother’s concerns. In particular, under the orders of 31 August 2015 the ICL has liberty to apply to re-list the proceedings if the ICL considers that it is necessary and in the best interests of the children to do so.
In this regard, it is common ground that the mother’s application to discharge the orders dated 31 August 2015 is listed for hearing later this month.
Conclusion
I am of the view that there would be no injustice in refusing the mother’s application for an extension of time to appeal. The Applications in an Appeal (both filed on 27 April 2016) should be dismissed.
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 2 June 2016.
Associate:
Date: 2 June 2016
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