Jabbar & Gade (No 3)

[2016] FamCAFC 218

FAMILY COURT OF AUSTRALIA

JABBAR & GADE (NO. 3) [2016] FamCAFC 218

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the applicant is 12 months late in filing the Notice of Appeal –  Where a previous application for an extension of time relating to the same orders sought to be appealed was dismissed in Jabbar & Gade (No. 2) [2016] FamCAFC 89 – Where there was no explanation for the failure to file a Notice of Appeal in a timely way – Where it would not occasion an injustice to refuse an extension of time – Where there was no need to consider the question of expedition – Application dismissed.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth) r 22.03

Gallo v Dawson (1990) 93 ALR 479
Jabbar & Gade (No. 2) [2016] FamCAFC 89

APPLICANT: Ms Jabbar

RESPONDENT: Mr Gade

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 2265 of 2015

APPEAL NUMBER: EA 165 of 2016

DATE DELIVERED: 4 November 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 1 November 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 31 August 2015

LOWER COURT MNC: [2015] FCCA 3607

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Presker (via telephone link)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Newcastle Family Law

Orders

1. The Application in an Appeal filed on 27 September 2016 is 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 Jabbar & Gade  (No. 3) 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number:  EA 165 of 2016
File Number:  NCC 2265 of 2015

Ms Jabbar

Applicant

and

Mr Gade

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Reasons for order made on 1 November 2016

1. By Application in an Appeal, Ms Jabbar (“the mother”) seeks an extension of time in which to appeal against interim parenting orders made by Judge Terry on 31 August 2015.  The time for filing an appeal against those orders expired some 12 months ago.

2. In the orders sought in the application the mother also sought that the appeal be heard on an urgent basis before 10 October 2016. This date has passed, however it is clear that the mother seeks expedition of the appeal if she is granted an extension of time. Of course, it will not be necessary to determine the issue of expedition if leave to file the appeal out of time is refused.

3. It is relevant at this point to note that this is the second application for an extension of time to appeal against the orders of 31 August 2015 that the mother has brought before the Court. The first was dismissed by Ryan J on 2 June 2016.

4. The parenting orders concern the parties’ two children, born in 2006 and in 2012, and provide that the children live with the father and that he have sole parental responsibility for them.  The orders further provide for the children to spend time with the mother at a contact centre.

Reasons of the trial judge

1. Her Honour noted that the matter had been listed before her on an urgent basis. Her Honour said that the parties separated in August 2015 and the father left the marital home taking the children with him.  It seems that the issue before her Honour, or at least one of the issues raised, concerned a text message that the father asserted was sent to him by the mother in which she threatened to set the house alight with her and the children in it. 

2. Her Honour also noted that the father agreed that he had been physically violent to the mother and had hit her on one occasion.

3. Her Honour concluded that, based on the untested evidence before her, it was appropriate that the children continue to live with the father pending a final hearing.

4. Her Honour noted that the family consultant recommended the preparation of a Chapter 15 expert report.

The application

1. The mother appears for herself.  In her affidavit in support of the extension of time, she challenges the trial judge’s findings about the text message and contends that she did not send the message to the father.  She also annexed some documents to her affidavit which I understand to be material on which she would rely to demonstrate that her Honour’s conclusions were wrong.

2. Rule 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”) provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. The time in which the mother could appeal expired in September 2015.

3. The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 and in the judgment of McHugh J at 480 - 481, his Honour 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. 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. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…

   (Citations omitted)

4. In this matter, the mother advances no reason why the appeal was not brought within the time specified.  The mother said that since Ryan J dismissed her earlier application, she had tendered other documents to the trial judge who had failed to appreciate their import which is why she re-made the application for extension of time and that her appeal be expedited.

5. Nothing in her affidavit or oral submissions or in the annexures to her affidavit persuades me that the refusal to grant an extension would operate as an injustice.

6. Ryan J’s remarks in the mother’s previous application for an extension of time, published as Jabbar & Gade (No. 2) [2016] FamCAFC 89, also bear repeating. Her Honour said:

   19. 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.

7. It appears that the interviews with the Family Consultant occurred on 10 October 2016, and the Family Report will be released to the Court in the near future. At this time the trial judge will have the benefit of an independent assessment of the parties on which to proceed to a final hearing.

8. For those reasons, the application for an extension of time should be dismissed, and the consideration for expedition of the appeal is unnecessary.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 4 November 2016.

Associate: 

Date:  4 November 2016