Shahidi and Beiranvand
[2019] FamCAFC 65
•18 April 2019
FAMILY COURT OF AUSTRALIA
| SHAHIDI & BEIRANVAND | [2019] FamCAFC 65 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Application for an extension of time in which to file a Notice of Appeal – Notice of Appeal filed in time but rejected by Registry – Merits of the appeal – Where the prospects of success of the appeal do not justify an extension of time – Application dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) ss 60I, 72, 72(5), 75(2) Family Law Regulations 1984 reg 15A(1), 15A(2) |
| Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPLICANT: | Mr Shahidi |
| RESPONDENT: | Ms Beiranvand |
| FILE NUMBER: | PAC | 3756 | of | 2018 |
| APPEAL NUMBER: | EA | 25 | of | 2019 |
| DATE DELIVERED: | 18 April 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 21 March 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 January 2019 |
| LOWER COURT MNC: | [2019] FCCA 455 |
REPRESENTATION
| THE APPLICANT: | In person (with the assistance of an interpreter) |
| COUNSEL FOR THE RESPONDENT: | Mr Mokhtar |
| SOLICITOR FOR THE RESPONDENT: | AMG Law Firm |
Orders
The Application in an Appeal filed on 8 March 2019 is dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shahidi & Beiranvand has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 25 of 2019
File Number: PAC 3756 of 2018
| Mr Shahidi |
Applicant
And
| Ms Beiranvand |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Shahidi (“the husband”) seeks an extension of time in which to appeal against orders made by Judge Harman on 16 January 2019.
Property proceedings between the husband and Ms Beiranvand (“the wife”) were fixed for hearing before the primary judge on that day.
On 14 December 2018 the husband filed an Amended Initiating Application which, for the first time, sought orders in relation to the parties’ child. On 16 January 2019 the primary judge struck out any application purportedly before the Court with respect to parenting, but noted that the order was not intended to deal with the parenting application on its merits and that either party could commence such an application at any time.
As to the balance of the proceedings, his Honour declared that each party was entitled to retain, the property they presently had and otherwise dismissed the application for property orders. The husband’s application for spousal maintenance was also dismissed.
Any appeal from these orders should have been filed on or before 13 February 2019. On that date, the husband purported to file a Notice of Appeal. It was not accepted by the Registry because it was defective in a number of respects.
Application for an extension of time
The husband’s Application for an Extension of Time was filed on 8 March 2019, some three weeks after 13 February 2019.
The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J said:
…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. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935: “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
Explanation for the delay
As we have seen, the husband attempted to file a Notice of Appeal within time, but it was rejected. Although he has had a tertiary education, the husband’s first language is not English. He needed the assistance of an interpreter from time to time in the proceedings before me. This is some explanation as to why the husband was not able to file a Notice of Appeal within time, although no evidence was given by him of the steps he took to try and produce a Notice of Appeal in proper form.
The husband’s difficulty was compounded because the written and settled version of the primary judge’s oral reasons did not become available after the application for an extension of time was filed.
I note, however, that the husband did not seek to amend his draft Notice of Appeal after he received the settled reasons.
Nonetheless, these two matters combined demonstrate a sufficient explanation for the husband not filing the Notice of Appeal within time.
The merits of the proposed appeal
I now turn to the merits of the proposed appeal. The proposed grounds 1, 3 and 5 deal, in various ways, with parenting issues.
The primary judge struck out the parenting issues because:
·The amendment to the Initiating Application which added claims for parenting orders was made only four weeks before the hearing;
·The orders sought were incompetent and not in a form capable of affording due process to the wife or being ordered by the court;
·Once hearing dates have been allocated, it is impermissible for issues to be added to the proceedings;
·There had been no compliance with s 60I of the Family Law Act 1975 (Cth) (“the Act”) which requires the parties to attend family dispute resolution or obtain an exemption prior to commencing proceedings;
·The proposed orders sought an order for paternity testing, to demonstrate that the husband is in fact the father of the child. This would need to be dealt with as a preliminary issue which would necessitate a delay; and
·A family report would have to be obtained again leading to delay.
To these, the primary judge might have added that as neither party had adduced any evidence that addressed the parenting issues there was a complete absence of material upon which a parenting hearing could be conducted. The husband informed me that he had filed such an affidavit but he was unable to identify it by reference to the date it was sworn or filed. There is no such affidavit on the Court file.
The order which struck out the parenting proceedings was not an order in relation to a child welfare matter as defined by Regulation 15A(2) of the Family Law Regulations 1984. As it is an interlocutory decree, leave to appeal is required (Reg 15A(1)).
Whilst the discretion to grant leave is unfettered, ordinarily the Court would look at whether sufficient doubt has been cast upon the decision of the Court that would warrant its review by the Full Court and whether any substantial injustice would follow if leave were not granted – Medlow & Medlow (2016) FLC 93-692.
Whilst bullet point three set out above is arguably erroneous, the remaining points are obviously correct. The primary judge was therefore faced with the choice of adjourning that part of the proceedings or striking them out. His Honour chose the latter course which permitted either party immediately to commence further proceedings for parenting orders. Whilst other judges may have followed a different course, that does not identify error in the choice that was made by the primary judge.
Further, the absence of any evidence directed to parenting forestalled any hearing on that issue.
There is no reason to doubt the correctness of this decision.
Further, and importantly, the husband is free forthwith to commence parenting proceedings. He informs me that he has now obtained a certificate under s 60I of the Act. Thus, there is no impediment to him commencing proceedings if he is to follow that course. Such proceedings would come on much quicker than they would if leave were granted and the appeal was allowed.
Thus the husband has not identified any miscarriage of justice that would follow if leave was not granted.
If I am wrong as to whether leave is required I consider that the husband has no prospects of success on this aspect of the appeal for the same reasons.
The next ground of appeal asserts error in that after the orders were made on 16 January 2019, the husband unsuccessfully sought to organise a mediation with the wife.
Self-evidently, that does not point to an error on the part of the primary judge.
Finally, it is necessary to turn to the three grounds of appeal that deal with the property orders.
The primary judge found that the total net assets of the parties range between $46,686.54 and $86,686.54 (at [113]). This was because the evidence disclosed only a range of value of a property at Suburb C, which constituted the only significant asset available for division.
The wife also had a superannuation interest of $4,469.97.
The property at Suburb C was owned by the wife and was subject to a large mortgage. The primary judge accepted the wife’s contention that she had acquired this property after separation using her share of a joint bank account for the deposit. That circumstance, the fact that the wife had cared for the parties’ child since separation without any assistance, financial or otherwise, from the husband and the fact that this lack of support was likely to continue, led his Honour to conclude that the appropriate division of property was simply for each party to retain what they presently had.
The first challenge asserts that the wife failed to give proper disclosure of her financial affairs and, in particular, did not provide her tax returns for the years 2013 and 2016. This complaint does not identify error on the part of the primary judge.
The undisputed position of the parties was that when they arrived in Australia from Country A in 2010 the wife immediately commenced work as a healthcare assistant. In 2012 she completed the requirements for her qualifications obtained in Country A to be recognised in Australia and commenced work as a health professional.
The primary judge found that the husband had not engaged in employment since his arrival (at [121]).
On 10 December 2018, the husband served a subpoena for production upon the wife. Amongst the documents sought in the subpoena were the wife’s tax returns from 2013 to 2018.
Of this, the primary judge said:
33.Complaint was raised by the applicant that the wife had not provided documents that had been sought by him by way of subpoena or that such documents had not provided in a sufficiently timely fashion. Complaint was raised by the husband, when the documents were ultimately identified, that he had not, prior to today, seen those documents or been aware that they had been produced to the Court by the wife, he having been of the belief that they would be provided to him.
34.The subpoena to which the husband refers is addressed directly to the wife. There is ample authority, that it is inappropriate for a subpoena to be issued directly to a party unless and until it is demonstrated that the party has been requested to provide disclosure or discovery and has failed to do so in a prompt or efficient manner. There is no such evidence. The subpoena has simply been filed.
35.To the extent the complaint is raised that the wife is late in the delivering up of documents, again, that complaint could not be made out. The last day for production of material required by the subpoena was 21 December 2018. It is not entirely clear when the subpoena was served although a handwritten affidavit of service is filed by the husband which, taking it on its face, suggests that the subpoena was served on 21 December, that is the last day for production. The documents were produced shortly after the Registry reopened, being produced on 10 January 2019. That could not be a criticism. If one discounted the days for which the Registry was closed, the wife has, in fact, produced her material within a matter of business days from service.
36.Further, and to the extent that criticism is raised that the wife had not notified the husband that the documents had been produced to the Court or were produced and he was unaware that the documents were produced by the Court, that criticism, again, could not bear scrutiny. A notice of request to inspect was filed by the husband on 11 January 2019 at which time it is made clear that the documents are then available for inspection. It is a matter for the applicant as to whether he chooses to take up the ability to inspect that material prior to today. A lunch adjournment was taken early to permit the husband time to inspect that material. Ultimately, nothing from it was tendered.
(Footnote omitted)
Neither the ground of appeal, the commentary that follows in the Notice of Appeal nor the husband’s submissions identified any error in this passage of reasoning. None is apparent.
The husband submitted that had the wife produced the tax returns as requested, they would have demonstrated that the wife earned a high income in 2013 - 2016. I do not know whether that is so, but the husband could have cross-examined the wife about her income in those years. Again, however, such a claim does not identify error on the part of the primary judge.
Further, in the commentary to the ground of appeal contained within the Notice of Appeal, the husband accepts that most of the documents he requested he received the day before the hearing.
It is difficult to see how this ground of appeal has any prospect of success at all.
The next ground of appeal asserts error in the application of s 75(2) of the Act because the primary judge did not consider the husband’s urgent situation resulting from his financial hardship and disability.
This is quite incorrect – the issues were considered but decided adversely to the husband.
The husband’s health was discussed by the primary judge at [93] to [95]. His Honour noted the absence of any evidence as to the husband’s asserted disabilities other than his own assertions. This led to the conclusion that there was no evidence to support the husband’s allegations about his health.
The primary judge found that “the husband has made a choice to not engage in paid employment” (at [149]). Consistently with this view, his Honour later, in relation to the application for spousal maintenance, found that “there is no admissible evidence that the husband has a “physical or mental incapacity for gainful employment” (at [160]).
The primary judge addressed the s 75(2) considerations at [130] to [154]. It is clear that much of the husband’s evidence was not accepted.
The husband has not pointed to anything that suggests that the primary judge’s findings as to his health were contrary to incontrovertible facts or compelling evidence or “glaringly improbable” (Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 at [43]).
The husband’s position was weighed against that of the wife who was having to live frugally from her own income so as to provide a home for her and the parties’ child as well as completely caring and providing for the child. Having regard to the small amount of assets available for division, it cannot be said that his Honour’s exercise of discretion is unreasonable. Challenges to the exercise of discretion, in any event, result in a high bar (Norbis v Norbis (1986) 161 CLR 513).
It is difficult to see that this ground of appeal has any prospects of success.
The last ground of appeal directed to the property orders made by the primary judge asserts that there were fundamental conflicts in the wife’s affidavits “particularly about the financial and health conditions of the appellant”. Ultimately, this is an attack on the primary judge’s credit findings.
The primary judge said:
51.The wife gave her evidence in a frank, candid fashion. She was unshaken, indeed, unchallenged with respect to the vast majority of her evidence. She impressed as truthful. She was able to provide documentary evidence, the significant list of tenders referred to above, to corroborate aspects of her evidence and, to the extent that those exhibits corroborate the wife’s evidence, they also totally repudiate the suggestions of the husband in contra-agitation.
52.The husband, during his cross-examination, even making allowance for his nervousness, his use of English as a second language and the assistance of the interpreter, gave answers which varied from time to time, were quick to agree with or reject a proposal only to then later reverse the answer. The husband’s answers were long, rambling, tangential and largely unresponsive.
53.The applicant did not produce corroborative evidence that he suggested was available, referring repeatedly to the fact that documents were available and could be produced if the Court so desired. Accordingly, Jones & Dunkel inferences would appear available although, ultimately, they need not be pursued with any vigour. The simple disputes between the parties with respect to significant areas of their evidence, which I will touch upon briefly, is sufficient to support an acceptance of the respondent’s evidence as the more probable and the more reliable wherever there is controversy.
The husband’s submissions were put on the basis that any contradictions within the wife’s evidence must lead not only to the rejection of her evidence but the acceptance of his. Neither proposition is correct. A judge may accept part but not all of a witness’s evidence (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447). Even if there were, as the husband suggests, some conflicts in the wife’s evidence as to his employment in 2016 or as to his health, they did not require all her evidence to be rejected.
Further, any difficulties with the wife’s evidence would not have cured the difficulties with the husband’s evidence that were identified by the primary judge.
As part of this submission, the husband focussed on the joint bank account which was the source of the funds used by the wife for the deposit on the Suburb C property. He asserted that the primary judge ought to have found that the wife improperly took half of his money. This was a reference to a joint bank account which, held $64,000 in December 2016. The dealings with that bank account were somewhat convoluted. Ultimately, it was clear that the husband received at least $20,000 from the account and, according to the primary judge, “in all probability $30,000” with the wife receiving the rest (at [92]).
The husband asserted that his $20,000 was kept in cash and later taken by the wife. She denied that she did so. The wife’s denial was accepted. That finding is an application of the credit findings recorded earlier and does not demonstrate error.
Finally, the husband seeks to appeal against the dismissal of his application for spousal maintenance. He asserted that the “important matters such as age, health, financial resources and capacity of each party for appropriate gainful employment” were not taken into account by the primary judge.
I have already referred to the primary judge’s refusal to accept all of the evidence of the husband.
The primary judge did accept that the husband was not working, but as I have said, found that there was no admissible evidence that he had a physical or mental incapacity for employment. The primary judge then proceeded to find that the husband could have worked, had he chosen to do so, thus there was no adequate reason why he could not support himself adequately. Therefore, as the husband did not have the care and control of the child of the marriage who was under 18 years old, he had not satisfied any of the requirements for spousal maintenance pursuant to s 72(5) of the Act.
The primary judge then said:
166.The wife has no capacity to pay. I accept her evidence in accordance with her financial statement, corroborated by the material that is tendered in her case, that her expenses exceed her income. She is doing it tough, albeit that her circumstances are more salubrious than the husband. It does mean that she has capacity.
The husband’s submissions do not come to grips with these findings and attempt to demonstrate that they are erroneous. Rather, he simply refers again to his assertions that the wife is young, healthy and has a good job whereas he is unemployed and unwell. The requirements of s 72 of the Act were passed by.
Once again no arguable error can be discerned.
Taking all of these matters into account, I am not satisfied that the prospects of success of the appeal are such as would justify an extension of time. In my opinion the appeal as framed and argued by the husband must fail. I cannot see, for myself, any error on the part of the primary judge that would justify an extension of time.
Conclusion
It follows that the application will be dismissed.
The wife’s solicitor made an application for costs of approximately $1,600. There is no suggestion that the husband has the means to meet that sum. There will be no order as to costs.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 18 April 2019.
Associate:
Date: 18 April 2019
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