Kashmiri & Ashwell

Case [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 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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Kashmiri & Ashwell [2023] FedCFamC1A 55
Case
[2023] FedCFamC1A 55
Decision Date

CaseChat Overview and Summary

The case of Kashmiri & Ashwell involves an appeal against the refusal of an application for an extension of time to bring proceedings and the subsequent refusal of substantive relief. The appellant, who is not the biological father of a child, sought a declaration under s 107 of the Assessment Act and an extension of time for the proceedings. The primary judge was satisfied with the substituted service of the appellant's process upon the respondent, who was aware of the proceedings but did not participate due to her voluntary absence. The primary judge, however, was not satisfied that the appellant provided adequate reasons for the significant delay in bringing the proceedings and did not make a specific finding on whether a substantial issue was raised for adjudication.

The legal issues before the court were whether the appellant had made out a prima facie case for relief and whether the primary judge had correctly assessed the quality and probative value of the evidence provided by the appellant. The court was required to determine whether the primary judge's assessment of the evidence was consistent and whether the appellant's evidence was reliable enough to justify an extension of time and the granting of the sought-after relief.

The court found that the primary judge had made inconsistent remarks about the soundness and probative value of the evidence provided by the appellant. The primary judge acknowledged that the informal DNA test was significant and powerful evidence but doubted the reliability of the appellant's evidence because he could not be satisfied that the appellant genuinely took a DNA sample from the child. The court held that the primary judge was plainly wrong to doubt the reliability of the appellant's unchallenged evidence, which could not have been legitimately rejected as it was not inherently improbable. The court concluded that the appellant 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.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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