MALAK & MAIRIE - [2012] FamCAFC 155

FAMILY COURT OF AUSTRALIA

MALAK & MAIRIE

[2012] FamCAFC 155

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – where the applicant seeks an extension of time to file a Notice of Appeal against the interim order made on 24 November 2011 suspending telephone contact – where the application is opposed by the respondent – where the applicant is in prison awaiting sentencing for criminal charges to which he pleaded guilty in February 2012 – where those charges comprise sexual offences against his three year old child from his subsequent marriage – where there is an adequate explanation for the failure of the applicant to comply with the timeframe for the filing of a Notice of Appeal – where the grounds of appeal as set out in the applicant’s draft Notice of Appeal have no chance of success reasonable or otherwise – where there is no substantial issue to be determined on appeal – where each party will be prejudiced in some way depending on the result – where the justice of the case dictates that the application should be dismissed – application dismissed.

Family Law Act 1975 (Cth) s 94(1), (1A), (2D), (2E), (2F)
Family Law Rules 2004 (Cth) ch 22, rr 22.02, 22.03, 22.11

GallovDawson (1990) 93 ALR 479
McMahon and McMahon (1976) FLC 90-038
Tormsen and Tormsen (1993) FLC 92-392

APPLICANT:

Mr Malak

RESPONDENT:

Ms Mairie

APPEAL FILE NUMBER:

SOA

2012

FILE NUMBER:

MLC

2355

2010

DATE DELIVERED:

20 September 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

18 June 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 November 2011

LOWER COURT MNC:

[2011] FamCA 891

REPRESENTATION

FOR THE APPLICANT:

In Person

FOR THE RESPONDENT:

In Person

Order

The application in an appeal filed by the father on 18 January 2012 be dismissed.

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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 7 of 2012
File Number: MLC 2355 of 2010

Mr Malak

Applicant

And

Ms Mairie

Respondent

REASONS FOR JUDGMENT

Introduction

I have before me an application in an appeal filed by the father on 18 January 2012 seeking in effect an extension of time to file a Notice of Appeal against one of a number of parenting orders made by Cronin J on 24 November 2011.
The application is opposed by the mother.
This application was first heard by me on 21 March 2012, when as a result of communication issues that arose between the Family Court of Australia Registry in Melbourne and a Correctional Centre, the application had to be adjourned to
2 April 2012. That issue is detailed in my ex tempore reasons for judgment delivered on 21 March 2012, and I need not dwell any further on it.
On 2 April 2012 the application was further adjourned to 18 June 2012 on the application of the father, and over the objections of the mother. Again the reasons for that adjournment are detailed in my ex tempore reasons for judgment delivered on 2 April 2012 and I will also not dwell on those reasons here.
On 18 June 2012 there was a further application to adjourn the proceedings, but this time by the mother, and opposed by the father. I refused this application to adjourn indicating that I would determine the application as soon as I was able to given my other work commitments.
I should record at this point that one of the major complicating factors in finalising this application has been the delay in the father being sentenced for criminal charges to which he pleaded guilty in February 2012. Those charges comprised sexual offences against his three year old child from his subsequent marriage, and sentencing was initially set for 23 May 2012. However, as I understand it, because of the need to obtain a number of reports and because of further investigations that have led to further charges of a similar nature being laid against the father, that process has still not been completed, and there is no clear answer when that will occur.
In any event, I turn to the application before me.

Relevant statute law and rules

Section 94 of the Family Law Act 1975 (Cth) (“the Act”) deals with appeals from a decision of a judge of the Family Court.
Section 94(1) of the Act provides as follows:
Subject to section 94AAA and 94AA, an appeal lies to a Full Court of the Family Court from:
(a)a decree of the Family Court, constituted otherwise than as a Full Court, exercising original or appellate jurisdiction:
(i) under this Act; or
(ii) under any other law; or
…
Section 94(1A) provides:
An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.
Section 94(2D) provides:
Applications of a procedural nature, including applications:
(a) for an extension of time within which to institute an appeal under subsection (1) or (1AA); or
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
Section 94(2E) provides that the rules of Court “may make provision enabling applications of a kind mentioned in subsection (2D) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.”
Section 94(2F) provides:
No appeal lies under this section from an order or decision made under subsection (2B) or (2D).
Chapter 22 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.

Applicable principles

The law in relation to applications for extension of time is well settled. In these matters, I often cite the High Court decision of GallovDawson (1990) 93 ALR 479. In particular, I refer to what 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.
That decision has been followed in a number of Full Court cases including such cases as McMahon and McMahon (1976) FLC 90-038 and Tormsen and Tormsen (1993) FLC 92-392.
In summary, what those cases tell me, and in particular Gallo v Dawson, is that there are a number of relevant factors which need to be addressed, such as whether there are adequate reasons which explain the delay, 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, but the overarching principle is to ensure that injustice is not visited upon, primarily the applicant, but also the respondent.

Discussion

As to the relevant factors that have been identified in this case, they are first whether there is an adequate explanation of the father’s failure to comply with the relevant timeframe for the filing of a Notice of Appeal, secondly whether there is a substantial issue to be raised on appeal, and thirdly the consequences for the parties of the grant or refusal of the application.

Adequate explanation

In order to appreciate the issue here I need to set out the sequence of events as follows:
a.The interim hearing of the application filed by the mother took place before Cronin J on 17 November 2011. The mother was represented by counsel and the father appeared without legal representation by telephone from the Correctional Centre where he was on remand awaiting a criminal trial for the sexual offences referred to above. At that stage he had either pleaded not guilty or had indicated that he intended to do so. There was also an Independent Children’s Lawyer who was represented on that day by counsel.
b.The two issues that were addressed by his Honour were whether the telephone contact between the children and the father should continue whilst he was in prison, and whether those children should be permitted to leave Australia for a holiday with their mother.
c.On 24 November 2011 his Honour, in the absence of the parties and the Independent Children’s Lawyer, delivered his reasons for judgment and made the following orders:
1.THAT until further order, the father’s communication by telephone with the children [D] and [E] is suspended.
2.THAT the mother has permission to remove the children [E] born 2004 and [D] born 2004 from the Commonwealth of Australia for the purposes of holidays.
3.THAT pursuant to s 11 of the Australian Passports Act 2005, the Minister may issue an Australian Passport to the children [E] born 2004 and [D] born 2004 without the consent of their father, the said children having permission of the Court to travel internationally.
4.THAT until further order, the father may send to the children letters, cards and gifts which subject to their content being appropriate to their age, shall be passed on to them by the mother.
5.THAT the mother provide instructions to the Principal of the children’s school to send to the father upon his request and at his expense, school reports and photographs.
6.THAT all extant applications are otherwise dismissed.
d.Those orders and the reasons for judgment were posted to each of the parties and the Independent Children’s Lawyer on 7 December 2011. That is apparent from the front sheet of the orders which indeed incorrectly identified the orders as having been made on that date.
e.The father did not receive his copy of the orders and the reasons for judgment until 17 December 2011, effectively as a result of the prison system, and this is unchallenged.
f.The father immediately prepared a Notice of Appeal appealing against the first order made by Cronin J and sent it to the court on
22 December 2011. However, according to the court records that document was not received until 28 December 2011.
As is plain, the 28 day period allowed under the Rules expired on 22 December 2011, and the father was then obliged to file an application in an appeal seeking an extension of time, which he did, together with a supporting affidavit and his draft Notice of Appeal, on 18 January 2012.
During the hearing of this matter on 21 March 2012 and 2 April 2012 I indicated a preliminary view that these facts provided an adequate explanation of the father’s failure to comply with the timeframe for the filing of a Notice of Appeal, and I now confirm that preliminary view. He was prevented from complying by a combination of the time it took to provide him with a copy of the orders and the reasons for judgment, the understandable limitations of the criminal prison system, and the fact that the Christmas period ultimately intervened.

The merits of the appeal

Usually, there are serious limitations on being able to assess the merits of an appeal on the documentation that is available on the hearing of applications of this nature. However, in this case, the reasons for judgment delivered by the trial judge, the complaints raised in the draft Notice of Appeal, the oral submissions of the parties, and the circumstances generally of this matter provide me with a firm basis on which to assess the merits of the appeal.
The only order sought to be appealed against is the interim order suspending telephone contact.
It is relevant to note that previously his Honour had suspended the majority of the parenting orders in existence because with the father being in prison he was unable to comply with most of them. It must also be appreciated that the hearing on 17 November 2011 was conducted on the basis that the father did not want the children to know that he was in prison. Further, and to my mind significantly, at the time of the hearing before his Honour, the father had pleaded not guilty to the charges and was awaiting trial; now, he has pleaded guilty and is awaiting sentencing.
His Honour made it clear, including by his orders wherein he dismissed all applications, that once the criminal proceedings had concluded, the parties or either of them could revisit the parenting issues if so advised depending on the result of those proceedings.
The parenting proceedings between these parties including in relation to their eldest child, C, have been long running. After a hearing over six days in 2008 and 2009 Brown J made final orders on 8 April 2009. Her Honour dismissed the father’s application to spend time with C, and set up a “strict supervised regime of contact” between the father and the twins but leading to the introduction of what might be described as a normal contact arrangement by January 2011.
There had previously been a 16 day trial in 2005 in which the mother had alleged that the father had sexually abused C, and which had resulted in the father not being able to spend any time with her.
On 12 May 2011 the father was interviewed by the Police, arrested, and charged with sexual offences against his three year old child from his subsequent marriage. It is to those charges that the father has now pleaded guilty, despite indicating to Cronin J that “in his mind … the charges would be dropped or … he would be acquitted”.
In any event, immediately after the father was charged the mother terminated his contact with the twins and he has not spoken to them since that time.
In the proceedings before Cronin J the mother sought that the court “reserve the question of the father communicating with the children”, but the father sought that he be able to communicate with them each Sunday from 12 noon until 2:00pm. The Independent Children’s Lawyer supported the mother’s position.
His Honour found as follows:
39.One might consider that where the telephone calls from a prison are sufficiently transparent to ensure that there is no misbehaviour on the part of the father, he ought to have the opportunity to continue his relationship until such time as the outcome of his criminal proceedings are known. In this case however, having regard to what has happened in previous proceedings and specifically the findings of Brown J to which I have already referred, I have some concerns that any contact might be confusing for the children but also destabilise [E] because of his Asperger’s Syndrome. The mother’s evidence was that subsequent to May 2011, matters have settled and the children are progressing well. On an interim basis, it would be highly inappropriate to change that.
His Honour then said this in turning to “the legal issues”:
61.Section 60B also sets out the various principles underlying the legislative objects. They are that children have the right to know and be cared for by both parents as well as the right to spend time on a regular basis with and communicate with both parents. That right of the children should only be denied in rare circumstances where it is clearly not in their interests to have such contact. Because of [E’s] situation and the stability of the children at present, this is one of those circumstances.
62.The knowledge of a parent can be kept alive in the mind of the boys in other ways such as presents and vetted letters. This is a case where the relationship between the father and the children has had a tragic start and was only just beginning to develop. Having regard to their ages, I see no damage to a delay in that development. If the father is released and can show that there is no foundation to the accusations against him, the whole relationship can be reviewed.
63.In assessing the children’s best interests, the Court is obliged to consider the provisions of s 60CC. This has been done at least twice before by this Court and it seems folly to go into great detail. However, the evidence in this interim hearing is very limited and the critical question seems to me to be whether the father is a responsible parent. Responsible parents do not sexually or otherwise abuse their children or any child. In this family, that problem has been a recurring theme. The Courts have grappled with it but now, for the first time, the criminal justice system has taken the issue on seriously. The outcome of that process may define but not necessarily conclude, whether the father is an appropriate role model for these children and whether he is a responsible parent. [E] and [D] deserve to have that responsible parent and pending the determination, I am taking a cautious approach because the criminal justice system is treating the matter as a serious problem.
64.Children should have the benefit of having a meaningful relationship with both parents. … I am not sure what the father has to offer these [children] at the moment other than a chance to maintain the familial connection. His absence does not seem to have caused them to regress. There is therefore little other benefit that the children would receive from continuing the telephone calls.
…
66.An important question is also the impact on the mother and [C]. Those concerns may be ameliorated once the criminal charges are resolved.
67.The mother otherwise provides a stable relationship and environment which I find may be undermined if the father was given an opportunity to continue the communication.
68.I have no evidence as to how the telephone communication could be masked and whether it could be supervised or monitored. Even if it could, I am not sure what benefit there would be for the children other than that to which I have referred.
…
73.To the extent that continuing the familial connection is important, I consider vetted correspondence and presents is sufficient.

The father’s draft Notice of Appeal is a little difficult to read, but it seems such of his complaints that have any relevance are as follows:
a.His Honour erred in accepting the evidence of the mother, and in particular “that phone contact would have a destabilising effect on the children, especially [E], diagnosed with Asperger (sic) Syndrome without the assistance of an expert”.
b.His Honour erred “in not considering that all calls from prison are carefully monitored and recorded”.
c.His Honour erred “in making a finding that the children are currently in a stable environment without the evidence of an expert”.
d.His Honour erred “by giving no regard to the relationship that has been built up between the children and [the father] over the past five years and the possible psychological or emotional damage this may cause the children including the thoughts of abandonment and his honour has done so without expert opinion”.
e.His Honour erred by not properly considering “the psychological or emotional instability of the children if contact was to resume in the future and what effect a period of absence would have on the children, with issues of neglect and abandonment, without the aid of an expert”.
f.His Honour erred “in making a finding that phone contact would undermine the mother’s relationship with the children and did so without expert evidence”.
g.His Honour erred by not properly considering “the confusion in the children when receiving gifts and letters or the emotional issues, such as abandonment if phone contact ceases”.
h.The father has suffered from a lack of procedural fairness in that the hearing was initially set down for 18 November 2011 but was called on and heard on 17 November 2011.
I do not consider that any of these “grounds of appeal”, nor indeed any other complaints set out in the father’s draft Notice of Appeal, have any chance, reasonable or otherwise, of success.
There was no application by the father or by the Independent Children’s Lawyer for a Family Report to be prepared, and there was no application by the father to adjourn the proceedings because he was unprepared or because of the need to obtain an expert’s opinion.
This was an interim hearing and as such his Honour had to do what he could with the evidence that was before him. He had the benefit of hearing cross-examination of the mother, and he had the benefit of input from an Independent Children’s Lawyer. He also had the benefit of knowing the history of the proceedings and of reading the reasons for judgment of Brown J which both parties asked his Honour to do in particular.
As such, and bearing in mind the need to take a cautious approach to the father’s application, in the circumstances I can find no error in his Honour’s order supported as it was by his extensive reasons for judgment. All the findings made by his Honour were open on the evidence before him and it has not been demonstrated that he has erred in the exercise of his discretion.
Further, it is important to not lose sight of the context of the application with the father being in prison awaiting trial on serious and relevant criminal charges. Clearly, the outcome of those charges would be highly relevant to the outcome of any parenting dispute between these parties. That, coupled with the circumstance that the father has now pleaded guilty to the charges, and he is facing further charges still and then sentencing, renders his Honour’s decision even more justifiable. It is beyond doubt that if this matter proceeded to an appeal this evidence would be before the court as highly relevant further evidence.

The consequences of granting or refusing the application

If the application is granted then the appeal will proceed and the mother will need to deal with it whereas at the moment there is no appeal at all. Further, an extra element here is that given the father has now pleaded guilty and he will be sentenced at some time in the future, it is even more likely that an appeal will become unrealistic as a result of that outcome. Thus, there are obvious prejudices to the mother (and possibly to the children) if this application is granted.
If the application is refused, then the father will not be able to pursue an appeal. Further, there is no appeal from a refusal to grant an extension of time and all the father would be left with is the ability to apply for special leave to appeal to the High Court. However, that is a difficult prospect and may not be open as a matter of practicality. Thus, there is a serious consequence for the father if the application is refused.

Conclusion

As the authorities recognise the court’s consideration of the relevant factors here informs the court in determining the fundamental issue, namely, where the justice of the case lies. Here, despite there being an adequate explanation for the failure to comply with the relevant timeframe under the Rules, it is apparent that there is no substantial issue to be determined on appeal, and given that each party will be prejudiced in some way depending on the result, that lack of merit leads to the interests of justice dictating that the application should be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on

20 September 2012.

Associate:

Date: 20 September 2012