Malak and Mairie
[2016] FamCAFC 112
•3 May 2016
FAMILY COURT OF AUSTRALIA
| MALAK & MAIRIE | [2016] FamCAFC 112 |
| FAMILY LAW – APPEAL – REINSTATEMENT – Where the applicant seeks to reinstate an appeal deemed abandoned when appeal books were not received within the time ordered by the Appeal Registrar – Where there is an adequate explanation for the failure to file the appeal books within time – Where it is not possible on the limited material before the court to find that all of the grounds of appeal are completely devoid of merit – Where there is even the remotest chance of success an appeal should be reinstated – Where there is prejudice to the applicant if the appeal is not reinstated and to the respondent if the appeal is reinstated – Appeal reinstated. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Batey-Elton & Elton [2009] FamCAFC 101 Bemert & Swallow (2010) FLC 93-441 Gallo v Dawson (1990) 93 ALR 479 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Mr Malak |
| RESPONDENT: | Ms Mairie |
| APPEAL NUMBER: | SOA | 57 | of | 2015 |
| FILE NUMBER: | MLC | 2355 | of | 2010 |
| DATE DELIVERED: | 3 May 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 3 May 2016 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
The Notice of Appeal filed on 14 August 2015 be reinstated.
The applicant father have an extension of time to appeal against the order made by Berman J on 28 May 2015 and that be attended to by the applicant father filing and serving an Amended Notice of Appeal by the close of business on Tuesday 31 May 2016 to include an appeal against that order and amending his grounds of appeal.
Paragraph 3 of the orders sought in the application in an appeal filed on 26 April 2016 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Malak & Mairie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 57 of 2015
File Number: MLC 2355 of 2010
| Mr Malak |
Applicant
And
| Ms Mairie |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
There are two applications in an appeal before the Court today.
The first application is an application filed by Mr Malak (“the father”) on 29 January 2016 seeking, in effect, a reinstatement of his abandoned appeal. I refer to it in that way because the orders sought are not in that precise terminology, but it is clear reinstatement is what the father seeks.
The second application is the application in an appeal filed by the father on 26 April 2016 in which he seeks orders, again, effectively for a reinstatement of his abandoned appeal. Pausing there, the order sought is not in that terminology but, again, it is clear that that is what the father seeks.
The father also seeks in this application leave to amend his grounds of appeal. That is helpful in the context of considering the reinstatement, because it is the grounds of appeal which need to be addressed to ascertain, if possible, whether there is any merit in the appeal. The father does not need leave to amend the grounds, he can amend his Notice of Appeal without leave up until the time of the filing of a summary of argument, but of course, in this case, the appeal has not proceeded because it is abandoned. In any event, to repeat, it is helpful to know the full extent of the grounds of appeal relied upon by the father when considering the merits of the appeal.
The third order sought in that application is that the father be granted leave to include in the appeal books the family report of Mr R prepared in 2008, and a report from [a] Contact Centre also prepared in 2008. Pausing there, in the appeal books that the father has forwarded to the Court and served upon Ms Mairie (“the mother”), those two documents are included. That was done despite not being permitted by the orders made by the Appeal Registrar in determining the content of the appeal books. That order was made by the Appeal Registrar on 28 October 2015, and it not only provided for the content of the appeal books, but also provided for the appeal books to be filed by 23 December 2015. I will come back to that date, because that is relevant. But for the purpose of the application before me today, what the father had to do in relation to this issue, namely, the two reports that he wants included in the appeal books, was to file an application seeking a review of the Appeal Registrar’s decision made on 28 October 2015 for those reports not to be included in the appeal books.
The father has not made any such application, and he is now out of time to do that. Thus what he should have done if he wished to pursue that course, was to file a separate application seeking, first, an extension of time to file an application for review and, secondly, seeking a review of the orders made by the Appeal Registrar.
It is not open to the father to attempt to circumvent that process by the back door. Thus, I propose to dismiss paragraph 3 of the orders sought in the application filed on 26 April 2016. It will then be up to the father, if he wishes to, to pursue the course that I have indicated he has to in relation to that matter.
That said, the primary issue before the Court today is that of reinstatement of the abandoned appeal.
Background
The abandonment arose in this way.
As I have indicated already, there was a directions hearing on 28 October 2015 when the Appeal Registrar made her orders providing for the content of the appeal books, and also for the filing and serving of those appeal books by 23 December 2015.
What in fact happened was that the appeal books were not received in the appeal registry until 18 January 2016, and they were accompanied by a letter from the father dated 14 December 2015. On 19 January 2016, the Appeal Registrar wrote to the father, the mother and the Independent Children’s Lawyer (“ICL”) advising of that, namely, when the appeal books were received. In that letter, the Appeal Registrar sought further details as to when the appeal books were posted to the appeal registry and to the mother, and also pointing out deficiencies in the appeal books, including the circumstance I have referred to earlier in these reasons, namely the inclusion in the appeal books of those two reports of 2008, and pointing out that they were not permitted to be included in the appeal books.
I do not understand that there was a reply to that correspondence by the father, but in any event, the effect of the failure to file and serve the appeal books by 23 December 2015 resulted in the appeal being deemed abandoned pursuant to the Family Law Rules 2004 (Cth) (“the Rules”). That then led to the application in an appeal filed on 29 January 2016.
That application first came before me on 23 March 2016, and I was alerted to the fact that one of the grounds of appeal relied upon by the father in his abandoned Notice of Appeal was a complaint that the trial judge had erred by not providing the children with the opportunity to express their views. Now, what had happened in relation to that is that, during the course of the trial, the father had made an oral application to the trial judge for the children of the relationship to be the subject of assessment, and for the family consultant to ascertain their views, wishes and perceptions of their relationship with their mother and their father.
That application came before his Honour on 28 May 2015, as I say, during the course of the trial, and his Honour dismissed it. However, his Honour omitted to publish his ex tempore reasons for judgment delivered at that time, and omitted to formally promulgate the order dismissing the oral application. As a result of that, the application was adjourned to enable the trial judge to publish his ex tempore reasons for judgment, and to also promulgate the order to which I have referred. I note that that has now happened.
There was a second basis for the adjournment of the application on that day, and that was to allow the father to seek corroborative evidence of his explanation for his failure to file the appeal books in the timeframe provided in the order made by the Appeal Registrar on 28 October 2015. In that regard, what the father had deposed to in his affidavit in support of his application was that, and bearing in mind that the father is incarcerated in Prison, he prepared his appeal books, he prepared his covering letter dated 14 December 2015, and on either that day or the next day, namely, 15 December 2015, he provided the appeal books and the covering letter to the prison authorities, and, indeed, two sets of those appeal books, one to be sent to the Appeal Registrar in Melbourne and the other set to be sent to the mother.
As I have indicated, the appeal books and the covering letter were not, in fact, received by the appeal registry until 18 January 2016.
The mother tells me today that she received her copy of the appeal books on 24 December 2015.
I indicated on 23 March 2016 to the father that he had not provided corroborative evidence of what he says occurred at the prison. Indeed, that was a query raised with him in the Appeal Registrar’s letter of 19 January 2016.
In the father’s affidavit in support of his most recent application, the father has annexed a one page document which is headed “Inmate Request Form”. What that document indicates is that on 21 January 2016 the father obtained, or sought from the prison authorities, a request form which would enable him to inquire of the authorities as to what happened in relation to the posting of his appeal books, and he filled out the request form, setting out that question. The form indicates that it initially went to the supervisor who sent it to the mail room at the prison for action. It indicates there was no record in the mail room of the posting out of the appeal books, and recommended that the account section of the prison be contacted. That ultimately proved to be successful in terms of knowing what the prison authority did, and this document records that the boxes containing the appeal books went on 15 December 2015 to the mother and to the appeal registry. There is, of course, no explanation provided in this document, nor from any other source, as to why it took so long for the appeal books to reach the appeal registry, or why it took until 24 December 2015 for the mother to receive hers.
In any event, the mother’s position today is that she has no further submission to make about the father’s explanation for the prima facie failure to file and serve the appeal books within time. For my part, I am content to proceed on the basis that the father did all that he could to comply with the order of 28 October 2015 to file and serve his appeal books by 23 December 2015.
With hindsight of course, the father might have been able to attend to the preparation of his appeal books in order to send them off before 14 and 15 December 2015, but he was not to know that that would prove inadequate to ensure that they were received by the appeal registry in time. In any event, to repeat, I am content to proceed on the basis that the father has provided an adequate explanation of what was, prima facie, his failure to file and serve the appeal books within time.
That leads me to a consideration in more detail of the application for reinstatement.
Applicable principles
In the case of Bemert & Swallow (2010) FLC 93-441 the Full Court considered in some detail the relevant principles to be applied where there is an application to reinstate an appeal. Significantly the Full Court concluded at paragraph 154:
…, [i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account.
It was identified in Bemert & Swallow though that the principles applicable to the determination of an application for an extension of time, as set out, for example in the oft-cited judgment of McHugh J in Gallo v Dawson (1990)
93 ALR 479 apply equally to an application to reinstate an appeal. In Gallo v Dawson, McHugh J said at 480:
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. 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: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. 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: see Burns v Grigg [1967] VR 871, at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. 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: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. 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.
See also Rand & Rand [2009] FamCAFC 88 and Batey-Elton & Elton [2009] FamCAFC 101.
Thus, the fundamental issue is whether the reinstatement of the appeal is necessary to enable the Court to do justice between the parties, and in looking at where the justice of the case lies, there are a number of factors that may be relevant to take into account. For example, whether there are adequate reasons which explain the delay, or the failure to comply with the relevant timeframe, whether there is a substantial issue to be raised on appeal, if there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the history of the proceedings, the conduct of the parties in the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application.
Discussion
Adequate explanation
In relation to the first factor, as I have already indicated, I am content to proceed on the basis that the father has provided an adequate explanation of the failure to file and serve the appeal books within time.
Merits of the appeal
In his Notice of Appeal filed on 14 August 2015 the father raises the following grounds of appeal:
1.His Honour erred by not enforcing orders 5 and 6 made on 16 December 2014 by Bennett J that … (“the children”) be interviewed by the family consultant.
2.His Honour further erred by not providing the children with the opportunity to express their views pursuant to s 60CC(3A) of the Family Law Act 1975.
3.His Honour erred by finding at paragraph 228 of his reasons for judgement [sic] that there is no relationship between the children and the father without first obtaining the childrens [sic] views and giving no weight to previous family reports.
4.His Honour erred by not giving the appropriate weight to the children’s attachment and bond with their father as noted in previous reports.
5.His Honour erred by finding a risk of psychological harm to the children when there was no expert report of any emotional difficulties the children are having.
6.His Honour erred by finding at paragraph 249 of his reasons, that the provision of school photographs and report cards would expose the children to an unacceptable risk of physical harm.
7.His Honour erred by prejuding [sic] that there was no advantage to the children resumption of a relationship with the father prior to hearing the evidence.
In his affidavit filed on 26 April 2016 in support of his application in an appeal filed that same day, the father pursues the following additional grounds of appeal:
Additional Ground 1B:
That the trial judge erred in failing to conduct a sufficient assessment of unacceptable risk having made a finding at [224] of psychological risk.
Additional Ground 2B:
His Honour erred as to the process required for determination of unacceptability of risk and the weighing and evaluation of evidence required for same.
Additional Ground 3B:
His Honour erred by failing to apply section 140 of the Evidence Act 1995 (Cth).
In terms of assessing the merits of the appeal, it is not possible for me to be definitive in that regard because I have limited documentation before me, namely, the reasons for judgment of the trial judge including, of course, the further ex tempore reasons which have now been received, and the Notice of Appeal filed by the father. I am assisted beyond what would normally be before the Court on a reinstatement application by the father setting out in his affidavits filed in support of the application, in effect, his summary of argument that he would put in support of those grounds of appeal. Despite that, the summary that he has included in his affidavit would not, I suspect, comprise the entirety of the submissions that he would want to make if the appeal is reinstated, and when he has the opportunity to file a complete summary of argument, and also make further oral submissions at the hearing of the appeal. Nevertheless it is of some assistance to understand the complaints that the father makes.
Clearly though, I do not have the full range of documentation which would be before the Full Court when the appeal is heard, if that is to be the case. For example, the Full Court would have the benefit of the transcript of the hearing before the trial judge, as well as all of the documents that were before the trial judge, and complete summaries of argument from the parties including, I assume, the ICL. Thus, given those circumstances, the question for this Court is whether, doing the best I can on the documentation before the Court, there is an arguable case on appeal. Indeed, where it appears that there is even the remotest chance of success then that is enough to reinstate the appeal.
I have often said in reasons for judgment that I have delivered in similar matters that in this regard this exercise is somewhat like the exercise required in determining an application for summary judgment, or to put the proposition another way, unless it is apparent that the appeal is hopeless or doomed to fail, and subject to where the justice of the case lies, the appeal should be allowed to proceed.
Now, apart from the order made by the trial judge on 28 May 2015 in relation to refusing the oral application of the father, the orders made by the trial judge following the trial were that the mother have sole parental responsibility for the children, that the children live with the mother, the father spend no time with the children, the father not be permitted to communicate with the children by any means, and a copy of the orders be made available to the children’s school and/or to other services, including the Department of Health and Human Services, at the election of the mother. Thus, the effect of his Honour’s orders is that the children are to live with the mother, but, importantly for the purpose of the appeal, spend no time with the father and the father not be permitted to communicate with them.
Turning to the grounds of appeal, and addressing first the grounds of appeal in the Notice of Appeal that was filed on 14 August 2015.
In Ground 1 the father complains that the trial judge erred by not enforcing certain orders made on 16 December 2014 by Bennett J that the children be interviewed by the family consultant. However, when one looks at those orders made by her Honour, the father has, in my view, misrepresented the position.
Certainly there was an order made for a family report to be prepared, and the order set out the matters to be addressed in the family report, but what the father did not refer to in his ground of appeal is Order 7 made by Bennett J which, in effect, provided that it was only if the family consultant was of the view that he or she would be assisted by observing the children with the father, or having the children communicate with the father for the purpose of the assessment, the family consultant should bring that to the attention of the Court, that under no circumstances was the family consultant to engage in any such assessment, or allow any such contact to take place, without further order of the Court. More particularly, Order 7 also provided that the family consultant had to first seek a direction from the Court before interviewing the children, and that direction was to enable the Court to consider whether such interview ought take place.
The matter came before Bennett J subsequently on 30 April 2015 and, on that date, her Honour ordered that the oral application of the father for the family consultant to interview the children prior to the commencement of the final hearing be dismissed. Her Honour went on though and said, for the avoidance of doubt, that did not preclude the father from applying to the trial judge for the children to be interviewed by the family consultant, and that is, of course, what the father did before the trial judge, and the trial judge refused that application.
Thus, as I say, in Ground 1, the father has misrepresented the position. There was no order that the children be interviewed by the family consultant which was able to be enforced by the trial judge. That ground of appeal is completely devoid of any merit.
Ground 2 relates to the father’s oral application before the trial judge that the children be interviewed. However, his Honour delivered extensive reasons in his ex tempore decision to dismiss that application, and, for my part, I can see no error by the trial judge in his refusal to permit the children to be interviewed. Thus Ground 2 has no merit.
In Ground 3 the father complains that the trial judge erred by finding that there is no relationship between the children and the father without first obtaining the children’s views, and giving no weight to previous family reports. Again, I have carefully read and considered his Honour’s reasons for judgment and, in my view, his finding at [228] is without error. Thus, in my view, there is no merit in Ground 3.
In Ground 4 the father complains his Honour erred by not giving the appropriate weight to the children’s attachment and bond with their father as noted in previous reports, and I understand that the father is there referring to the reports of 2008. It bears noting that the trial before his Honour took place in 2015, some seven years after those reports were provided, and, again, I have carefully perused his Honour’s reasons for judgment and I can find no error in how his Honour has addressed that issue.
Moving to Ground 5, the complaint here is that his Honour erred by finding a risk of psychological harm to the children when there was no expert report of any emotional difficulties that the children were having. There was before his Honour evidence from a family consultant who provided a report to the Court of 18 March 2015, and his Honour relied very much on the evidence of that family consultant. Thus, in this regard, and particularly in relation to the issue raised in this ground of appeal, there was ample evidence before his Honour as to a risk of psychological harm to the children if the orders sought by the father were put in place. Again, in my view, there is no merit in Ground 5.
In Ground 6 it is said his Honour erred by finding at [249] of his reasons, that the provision of school photographs and report cards would expose the children to an unacceptable risk. Again, on the basis of the evidence before his Honour, and a careful reading of his Honour’s reasons for judgment, I can find no error in his Honour’s conclusion at [249] of his reasons, and that ground of appeal also has no merit.
In Ground 7 it is said that his Honour erred by prejudging that there was no advantage to the children resuming a relationship with the father prior to hearing the evidence. I can find no basis in his Honour’s reasons for judgment for that complaint. His Honour had ample evidence before him in the course of the trial to find that there was no advantage to the children resuming a relationship with the father.
Thus, if the matter stood on the basis of the grounds of appeal contained in the Notice of Appeal filed on 14 August 2015, and bearing in mind the limitations of not having complete documentation before the Court, I can see no merit in the grounds of appeal set out in that Notice of Appeal.
However, there are the three proposed new grounds of appeal, and they are, first, the complaint that the trial judge erred in failing to conduct a sufficient assessment of unacceptable risk, having made a finding at [224] of psychological risk. Secondly, that his Honour erred as to the process required for the determination of unacceptability of risk and the weighing and evaluation of the evidence required for the same. Thirdly, that his Honour erred by failing to apply s 140 of the Evidence Act 1995 (Cth).
In my view, there is no merit in that last ground. However, I am not in a position to find that, on the material before this Court, the other two proposed new grounds of appeal are completely devoid of merit, and, of course, as I indicated before, even if there is the remotest chance of success, an appeal should be able to be reinstated.
That is not to say that the father should consider that those grounds of appeal will succeed. The highest it can be put is that, and I repeat, on the information that this Court has, it is not possible to say that there is absolutely no chance of success in relation to those two grounds of appeal. Now, of course, I have indicated my position in relation to all of the other grounds of appeal. I reiterate that I have reached that conclusion on the basis of the limited information that I have before me, and it may be that once the transcript is available, and once the summaries of argument are before the Appeal Court, that may indicate a different result. Thus anyone reading these reasons for judgment should understand that rider in relation to my conclusions.
The prejudice to the parties
If the father is unable to proceed with this appeal, then he will suffer an obvious prejudice as a result. If it can be said that there is even the remotest chance of success on the appeal, then to deny the father that opportunity would, clearly, be a serious prejudice to him. I should add that if, for example, the application was dismissed, there is no appeal to a Full Court from an order dismissing an application for reinstatement. The only avenue open to the father would be to seek special leave to appeal to the High Court of Australia, which can be a difficult exercise to undertake, and thus that would clearly add to the prejudice that the father would suffer.
In relation to the mother, if the appeal is reinstated, then, clearly, she will suffer prejudice because the appeal has been deemed abandoned and the father is not able to pursue it. The mother would have to deal with it, both in terms of time and resources, and that clearly constitutes a serious prejudice to her.
Conclusion
In relation to the relevant factors that this Court has to consider on an application to reinstate an abandoned appeal, I repeat that I am content to proceed on the basis that the father has provided an adequate explanation of the failure to file the appeal books within time. In relation to the merits of the appeal, although, in my view, there is no merit in the initial grounds of appeal promoted by the father, I am not in a position to say that two of the proposed new grounds are completely devoid of merit. Finally, in relation to prejudice, there would be serious prejudice to the father if the application is dismissed, but, equally, there would be serious prejudice to the mother if the application was successful. Thus, in effect, that factor balances itself out.
A consideration of those relevant factors feeds into the overarching decision that I have to make, and that is where the justice of the case lies. In the circumstances, as I have outlined, the justice of the case requires that the application be successful, and the appeal will be reinstated.
In that event, the father will also require an extension of time to appeal against the order made by the trial judge on 28 May 2015. He should have that extension because the trial judge has only now provided his reasons for judgment for making that order dismissing the father’s application. As a result the father will need to amend his Notice of Appeal to include an appeal against that order.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 3 May 2016.
Associate:
Date: 29 June 2016
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