Nabil and Inzaman

[2007] FamCA 214

FAMILY COURT OF AUSTRALIA

NABIL & INZAMAN [2007] FamCA 214

FAMILY LAW - PRACTICE AND PROCEDURE – Application for extension of time to bring a review application

Family Law Act 1975 (Cth)

APPLICANT: Mr Nabil

RESPONDENT: Ms Inzaman

FILE NUMBER: SYF 3240 of 2006

DATE DELIVERED: 8 March 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Steele J

HEARING DATE: 8 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levy

SOLICITOR FOR THE APPLICANT: Norwest Family Law

COUNSEL FOR THE RESPONDENT: Mr Santisi

SOLICITOR FOR THE RESPONDENT: Lawside Lawyers

Orders

1. That the husband's application for an extension of time to set aside the orders made by consent on 3 August 2006 is dismissed.

2. That the wife’s application for costs is dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3240  of 2006

Mr Nabil

Applicant

And

Ms Inzaman

Respondent

REASONS FOR JUDGMENT

1. This is an application by the father of a young boy who is aged four years and four months, to review consent orders made on 3 August 2006 when the child was nearly four years of age.  In effect, it is an application for an extension of time with which to bring the review application.

1. The parties separated shortly prior to the child’s birth and the father had virtually no contact with the child except for a half hour period for the next four years.

1. In August 2006 the father, who is now 45 years of age and is a mature, educated man who is in practice as a health provider, consented to orders which would provide for him to have such contact with the child as was agreed with the mother.

1. An affidavit has been filed in support of his application for a review of those consent orders made on 3 August 2006 by the Registrar. 

1. The difficulty I have with the matter is that there is virtually no explanation of the delay and indeed there is material in the father's affidavit which suggests - perhaps honestly and fairly - that the relationship between he and the mother was such that he did not even continue with communications with the mother because he was not tendered apologies from her family in relation to some things which happened which he thought should not have happened.  He says that at the time the consent orders were made he was not ready to make  a commitment to be a serious part of the child's life and he realised that he could not just come into it and then fade out of it again; a sensible recognition.  But that is his only explanation for the delay and he says that now he has changed his mind.

1. It seems to me that the legal position should be such that when parties enter into consent orders of this type and are fully aware of the situation, they should be bound by them unless there is a change of circumstances sufficient to justify the Court, in the best interests of the child, reopening the matter. That has not occurred.

1. I should consider whether there is any prejudice to the wife and I have to say that, as I see it, the only prejudice to the wife might be in costs of further applications which the father might bring or that she might be required to defend if these proceedings were set aside now.  It is likely, I think that those expenses will nonetheless be incurred in further litigation that may be involved.

1. I am told that the parties have property proceedings still on foot and counsel for the father says that the father should be able to amend those proceedings so as to include further children's orders in those proceedings.

1. The issues involved are parenting issues related to a child and the child's best interests are paramount.  Ultimately the child's best interests are, I think, likely to be served by him having some contact of some sort with his father.  There has been no suggestion before me that the father is of such a character that the child having contact with him would not be a good thing.  And in that sense, the fact that I am even in the process of dismissing the father's application, seems to be counter-productive. 

1. However, I am not aware of all the other machinations of the litigation between the parties and I think it is important that the point we make here that these were orders entered into by consent by an intelligent man after proper consideration, with legal advice, and in circumstances where nothing special has occurred since to justify them being reversed in the short term.  In effect, there is no adequate explanation for the delay at all and accordingly I dismiss the husband's application for an extension of time to set aside the orders made by consent on 3 August 2006.

1. The wife's counsel made an oral application for costs.  It is apparent that in October last year the husband did seek to broach the subject of contact with the child.  That has been resisted.  In my view, at least in the long term, - without pre-judging the matter - there should be some orders made which would enable that to happen.  The husband, through his solicitors, did make some overtures in October last year.  They were ignored by the wife.  It seems to me, in those circumstances, the wife's application for costs should be dismissed and I make such an order.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele

Associate: 

Date:  8 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as NABIL & INZAMAN