Kashmiri & Ashwell
[2023] FedCFamC1A 55
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kashmiri & Ashwell [2023] FedCFamC1A 55
Appeal from: Kashmiri & Ashwell [2022] FedCFamC2F 1578 Appeal number(s): NAA 269 of 2022 File number(s): PAC 5032 of 2021 Judgment of: AUSTIN J Date of judgment: 1 May 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the primary judge dismissed the appellant’s application for an extension of time to bring an application under section 107 of the Child Support (Assessment) Act 1999 (Cth) for a declaration that he should not be assessed as liable to pay child support for the subject child of the proceedings – Where the appellant undertook an informal DNA test which excluded him as the biological father of the child – Where the legal principles applicable to interlocutory applications to extend time to bring proceedings were too rigidly applied by the primary judge – Where the primary judge wrongly depreciated the probative value of the unchallenged evidence led by the appellant – Where it is difficult to see how the grant of an extension of time to the appellant would occasion any material hardship or prejudice to the respondent who has not participated in the proceedings at first instance or in the appeal – Application in an Appeal – Further evidence – Where no amount of further evidence will cure the appealable error of law already identified – Application in an Appeal dismissed – Appeal allowed – Matter remitted for rehearing. Legislation: Child Support (Assessment) Act 1999 (Cth) ss 29, 107
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.20, 15.06
Cases cited: Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Bienstein v Bienstein (2003) ALR 225; [2003] HCA 7
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Hardwick & Hardwick (No.2) [2022] FedCFamC1A 216
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
OP & HM (2002) 29 Fam LR 251; [2002] FamCA 454
Skelton & Lindop (2022) 64 Fam LR 617; [2022] FedCFamC1A 47
Number of paragraphs: 49 Date of hearing: 1 May 2023 Place: Sydney Solicitor for the Appellant: Legal Aid NSW The Respondent: Litigant in person (did not participate) ORDERS
NAA 269 of 2022
PAC 5032 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KASHMIRI
Appellant
AND: MS ASHWELL
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
1 may 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 April 2023 is dismissed.
2.Leave to appeal is granted.
3.The appeal is allowed.
4.The orders made on 11 November 2022 are set aside.
5.The proceedings are remitted for re-hearing before another judge of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
By way of an Amended Notice of Appeal filed on 1 March 2023, the appellant seeks leave to appeal and, if granted, appeals from orders made by a Judge of the Federal Circuit and Family Court of Australia (Division 2) on 11 November 2022 refusing his application to extend time within which to bring an application under s 107 of the Child Support (Assessment) Act 1999 (Cth) (“the Assessment Act”) for a declaration that he should not be assessed as liable to pay child support in relation to a child born in 2006.
The child’s mother was joined as the respondent to the appeal, just as she was to the proceedings below, but she did not participate either at first instance or in the appeal.
For the reasons which follow, leave to appeal is granted, the appeal is allowed, the primary judge’s orders are set aside, and the proceedings are remitted for re-hearing by another judge.
History
The appellant and the respondent engaged in a sexual relationship until around mid-2005.
Some months afterwards, the respondent told the appellant she was pregnant and alleged he was the biological father of the foetus. The child was born on 7 April 2006.
The parties reconciled their relationship for a few months in 2006 after the child was born. During that period of reconciliation, the appellant signed a declaration to the effect that he was the child’s biological father, which he believed to be true at the time.
On 26 October 2006, after the parties again separated, the Child Support Agency wrote to the appellant informing that it had accepted the respondent’s application to assess his child support liability for the child. The appellant did not object to the attached assessment, creating his child support liability as from 5 October 2006.
By accepting the respondent’s application, the Child Support Agency was satisfied the appellant was the child’s parent (s 29(2) of the Assessment Act).
At some point during 2007, the appellant came to doubt and therefore decided to test his alleged paternity of the child. Using a DNA test ordered online, the appellant submitted the completed test for analysis.
The DNA report was returned on 5 September 2007, expressing this conclusion:
[The appellant] is excluded as the biological father of [the child].
Ever since, the appellant has believed he is not the child’s biological father. He promptly told the respondent so and provided her with a copy of the DNA test report, the result of which she repudiated. He has not since spent any time with the child and has not communicated with the respondent since 2008.
For years, the appellant did nothing about the child support assessment. He offered several reasons for that, one being that he has spent many years in prison and is not due for release until early 2024.
There is now evidence, not put before the primary judge, of how the appellant first initiated proceedings in 2012 to try and attain the same remedies. The respondent could not then be served with process and so the proceedings were adjourned generally, but were ultimately dismissed in December 2014, apparently for the want of prosecution. The historical court file, which forms part of the court record, was not formerly available from court archives and so, once obtained, was included within the appeal book pursuant to an order made by the appeal registrar under r 13.20 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
Finally, in 2021, with the help of a Community Legal Centre, the appellant was granted legal aid to pursue another application with the objective of rescinding the child support assessment and recovering money paid in part satisfaction of it. At the time of hearing before the primary judge, some $10,000 had been paid in child support, but $6,967 was outstanding.
The appellant filed his Initiating Application on 23 September 2021, seeking a declaration that he is not the child’s parent and is not to be assessed for child support, an order compelling the parties to remove the appellant’s name from the child’s birth certificate, and an order that the respondent repay the child support already paid to her. The application for such final relief was predicated on the success of the anterior interlocutory application for leave to bring the substantive application out of time.
The application was eventually listed before the primary judge on 11 November 2022, but only for hearing in respect of the interlocutory application for leave to apply out of time.
The primary judge dismissed the application, making orders in these terms:
1. Refuse leave for the extension of the date of filing of the Initiating Application.
2. The Application is dismissed.
The appeal, subject to the grant of leave to bring it, lies from those orders.
The primary judgment
The primary judge was satisfied the appellant properly effected the substituted service of his process upon the respondent, was satisfied the respondent was aware of the proceedings, and was therefore content to proceed with the hearing in her voluntary absence (at [3]-[4]). The primary judge said he was “not happy” with the respondent because she “wilfully ignored” the proceedings (at [28]), but that was beside the point.
His Honour identified that, to succeed with the interlocutory application, the appellant had to provide adequate reasons for the very long delay in bringing the proceedings and establish there was a substantial issue to be raised in the proceedings (at [6]).
The primary judge was not satisfied that adequate reasons for the delay were offered (at [12], [17], [20], [26] and [27]), but his Honour made no specific finding on the second question of whether a substantial issue was raised in the proceedings, despite acknowledging how refusal of the application to extend time would cause “serious injustice” to the appellant (at [16]).
In relation to the question of whether a substantial issue was raised for adjudication, the primary judge discussed the quality of the unchallenged evidence advanced by the appellant about the lack of his paternity of the child. But his Honour’s observations entail inconsistent remarks about the soundness of the evidence, on the one hand, and its lack of probative value on the other. In that regard, his Honour said:
9.Whilst the informal DNA test is supportive of the fact that the applicant is not the father of the child, it is not of such a standard because the Court has to rely upon the word of the [appellant] that he took the test from the child and that, as a result of taking the test from the child, he then submitted it and that that is the result that was returned. The Court has no way of being satisfied that the [appellant] did in fact take the sample from the child and not another person.
10.The only way the Court could be so satisfied is if a proper DNA test in circumstances where there was proof of the identity of the child and proof of the identity of the [appellant]. This would require a proper DNA test with certainty as to the identity of the parties and certainty as to the chain of custody in relation to the DNA test such that a report could safely be relied upon as being conclusive. The report itself is probative and points to the fact that the [appellant] is not the father of the child. However, it is not proof that the Court could rely upon conclusively that the [appellant] is not the father of the child.
…
16.There was material that was in the possession of the [appellant] in this matter as from 2007 which was significant, but not of a legal standard that the Court could rely upon, which pointed to the fact that he was not the father of the child. It is put to the Court that the [appellant] should be afforded the opportunity to address the issue of paternity in the light of the test which was done which established a prima facie case for the s 107 declaration. The Court is not satisfied that it does reach the level of a prima facie case. It is certainly powerful evidence, but the Court is not satisfied that it is evidence that the Court could rely upon to the extent of making a declaration. It is put that refusing the application could cause a serious injustice to the [appellant]. The Court acknowledges that. However, what is present is a delay from 2007 until 2021, when the application was actually put in. That is a significant delay.
…
27.Now that the [appellant] has engaged with the Court, it may well be that a further application can be made to the Court seeking orders for a DNA test to be undertaken. Whether or not that is appropriate, the Court cannot say. In the Court’s view, given the very lengthy extent of the delay, the Court is not satisfied that it is reasonable, based on the explanations that have been given, for leave to be granted. Even if the Court had granted leave, based on the information that was currently before the Court, which is an informal DNA test, it would not be prepared, based on that alone, to turn around and make the orders that are sought. The Court would have to have proof which was of a standard that it could be reasonably satisfied that the [appellant] was not the father other than through an informal DNA test. The Court does not suggest that what he has deposed is not true. The Court simply notes that the informal DNA does not satisfy it to the requisite level that the Court should make the declarations that are sought.
28.The Court realises that the [appellant] may feel a legitimate sense of grievance. However, the Court has to apply the law. The Court has to look at what all of the circumstances are, and has to look at whether or not it can be satisfied to the requisite level….
(Emphasis added)
Leave to appeal
The primary judge entertained only the appellant’s application to extend time under r 15.06 of the Rules, which application was enabled by s 107(2) of the Assessment Act. The judgment therefore flowed from an exercise of original jurisdiction under the Assessment Act, in which case leave to appeal is required (s 28(1)(a)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). In any event, the dismissal of the application to bring the application out of time is an interlocutory order and would ordinarily require the grant of leave to appeal (Bienstein v Bienstein (2003) 195 ALR 225 at [25]).
While the discretion is unfettered, the grant of leave ordinarily requires the prospective appellant to show the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
Leave to appeal should be granted. The following discussion exposes why the judgment is vitiated by error and shuts the appellant out of remedy, leaving him exposed to continuing financial liability, which the primary judge found would cause him serious injustice.
The appellant filed an Application in an Appeal on 12 April 2023 seeking to adduce further evidence on the question of leave to appeal, but it is dismissed because the appellant conceded the proposed further evidence is not needed to demonstrate substantive error.
The appeal
The appeal is heard in the respondent’s absence, as the appellant filed affidavits to prove her service according to the methods ordered by the appeal registrar on 21 December 2022.
It is unnecessary to recite the single ground of appeal with its lengthy particulars. It is enough to observe that it generally complains of the primary judge incorrectly applying legal principles to the interlocutory issue at hand, resulting in a miscarriage of discretion.
Appealable error is established. That conclusion follows essentially for three reasons. First, the legal principles which apply to interlocutory applications to extend time to bring proceedings are not as rigid as the primary judge stated and so material considerations were overlooked. Secondly, his Honour misapplied such principles by incorrectly conflating the need for the appellant to demonstrate the ultimate success of the substantive application with the need for him to only demonstrate a reasonably arguable case for relief. Thirdly, His Honour wrongly depreciated the probative value of the unchallenged evidence led by the appellant.
The primary judge cited OP & HM (2002) 29 Fam LR 251 as authority for the proposition that an applicant must demonstrate two things to succeed with an application to extend time: first, adequate reasons for the delay, and secondly, a substantial issue to be raised at trial.
In fact, the legal principles are not so prescriptive. The Full Court in OP & HM actually said this:
19.The principles to be applied in determining an application for an extension of time are fairly well settled. Whilst there is a broad discretion, the fundamental issue is whether an extension of time will enable the court to do justice between the parties. This is normally shown by the applicant demonstrating that there are adequate reasons which explain the delay, that there is a substantial issue to be raised on the hearing of the application, and that no hardship or injustice will be caused to the respondent which cannot be compensated by orders as to costs or otherwise (see McMahon and McMahon (1976) FLC 90-038; 1 Fam LR 11.260 at FLC 75,144; Fam LR 11,261, and Tormsen v Tormsen (1993) FLC 92-392; 18 Fam LR 232 at FLC 80,017; Fam LR 234).
Undoubtedly, the discretion to extend time is “broad” and fundamentally the Court must “do justice between the parties”. The inquiry into the provision of such justice is indeed “normally” accomplished by analysing the explanation for delay, whether a substantial issue is to be raised at trial, and whether hardship or prejudice would be occasioned to the respondent if time were extended. However, the relevant discretionary considerations are not confined to only those.
In Gallo v Dawson (1990) 93 ALR 479 at 480, McHugh J said this about determining applications for relief from limitation periods prescribed in rules of court:
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 an extension of time.
In any application to extend time, the merit of the proposed substantive application is not argued as elaborately as if the substantive application was actually then being heard and it need only be shown to be reasonably arguable (Jackamarra v Krakouer (1998) 195 CLR 516 at [9], [66.4], [66.7] and [73]).
The High Court of Australia (“the High Court”), in both Gallo v Dawson and Jackamarra v Krakouer, was discussing such legal principles in the context of applications to extend time to appeal, but the principles are of general application whenever a question arises as to the extension of a time period.
Here, his Honour focussed upon and gave primacy, if not paramountcy, to the insufficiency of the explanation offered for the long delay in bringing the proceedings. His Honour’s lack of satisfaction about the sufficiency of the explanation for delay was effectively treated as being dispositive. While his Honour was unaware of it at the time, there is now indisputable evidence of the appellant having tried to formally challenge his paternity of the child in other proceedings as far back as 2012, thereby compromising the finding made about the insufficient explanation for the delay in bringing the proceedings.
His Honour gave no consideration at all to the separate question of what, if any, hardship or prejudice which might flow to the respondent by granting the application to extend time, in which event a material consideration was not taken into account. The respondent was told long ago in 2007 that the appellant disputed his paternity of the child and she was given a copy of the informal DNA test report to verify his denial of paternity. She was served with process but elected not to contest the application before the primary judge. It would likely have been relatively easy for her to participate and either adduce or offer to adduce evidence of the child’s paternity, if she was confident she could rebut the evidence led by the appellant.
It is difficult to see how the grant of an extension of time to the appellant to bring his substantive application would occasion any material hardship or prejudice to the respondent. The appellant’s version of essential historical facts about the timing of the parties’ relationship, the respondent’s pregnancy, and the child’s birth is hardly liable to be seriously contentious. The lapse of time would not compromise the quality of scientific evidence which could be obtained about the child’s paternity. If the appellant is truly not the child’s biological father, then the declaration sought by him and the rectification of the child’s birth certificate should almost inevitably follow. The grant of leave for the substantive application to be brought out of time will not necessarily mean the appellant will succeed with his subsidiary application for recovery of $10,000 in child support paid to the respondent long ago.
The approach taken by the primary judge to the assessment of whether the appellant had a reasonably arguable case was altogether erroneous. Instead of just determining whether or not the unopposed evidence led by the appellant established a reasonably arguable case for the relief sought, the primary judge dismissed the application for leave to proceed out of time on the basis that the evidence then adduced lacked the necessary probative value to conclusively establish entitlement to the ultimate remedy.
Having first said, correctly, it was only necessary to ascertain whether there was a substantial issued to be raised at trial (at [6]), or alternatively, a prima facie case (at [16]), the primary judge then incorrectly applied a much more stringent test by observing how the evidence adduced by the appellant was not enough to conclusively establish he was not the father of the child (at [10], [16] and [27]).
The High Court has pronounced what is required to establish a prima facie case.
In Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622–623, the High Court said:
The first [inquiry] is whether the [applicant] has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the [applicant] will be held entitled to relief.
How strong the probability needs to be depends, no doubt, upon the nature of the rights the [applicant] asserts and the practical consequences likely to flow from the order the [applicant] seeks.
(Emphasis added)
Then, in Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57, the High Court said this to elaborate what was earlier said in Beecham:
65.… By using the phrase "prima facie case", their Honours did not mean that the [applicant] must show that it is more probable than not that at trial the [applicant] will succeed; it is sufficient that the [applicant] show a sufficient likelihood of success to justify [the interlocutory relief].
…
69.…it [is] not necessary for the [applicant] to show that is [is] more probable than not that the [applicant] [will] succeed at trial.
(Emphasis added)
As recently discussed in an appellate context (Skelton & Lindop (2022) 64 Fam LR 617 at [21]; Hardwick & Hardwick (No.2) [2022] FedCFamC1A 216 at [28]), the appellant need not prove it is more probable than not the substantive claim for relief will succeed if allowed to proceed – only a sufficient likelihood of its success.
The appellant seemingly had a reasonably arguable case for at least the declaration he sought under s 107 of the Assessment Act on account of him not being the child’s biological father. It is difficult to understand how the primary judge could have correctly found on the available evidence the appellant did not have a sufficient likelihood of success to justify the extension of time but his Honour wrongly required him to establish actual entitlement to the remedy.
In respect of the evidence led by the appellant, his Honour conceded the informal DNA test was “significant” and “powerful evidence” (at [16]), yet not apparently probative enough because his Honour could not be satisfied the appellant genuinely took a DNA sample from the child (at [9]-[10]). The primary judge was thereby clearly doubting the reliability of the appellant’s unchallenged evidence, but his Honour contradictorily said he was not suggesting the appellant’s evidence was untrue (at [27]). Such observations about the quality and acceptance of the evidence seem plainly incompatible. The appellant’s unchallenged evidence could not have been legitimately rejected as it was not inherently improbable. It should have been accepted at its highest for the purpose of determining the uncontested interlocutory application to extend time.
Disposition
The appeal must succeed and the vitiated orders must be set aside.
The appellant sought that his application, comprising both the application for substantive relief and the anterior application for leave to proceed out of time, be remitted for re-hearing by another judge. That order will be made.
No question of costs arose in the respondent’s absence.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 1 May 2023
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