SUKURAMAN & KEMAL

[2015] FamCA 289

FAMILY COURT OF AUSTRALIA

SUKURAMAN & KEMAL [2015] FamCA 289

FAMILY LAW – PRACTICE & PROCEDURE - REVIEW –application for review of Principal Registrar’s decision - where application made out of time – where leave to extend time sought – where leave not granted – where application dismissed.

Gallo v Dawson (1990) 93 ALR 479
Tormsen & Tormsen (1993) FLC 92-392

Family Law Act 1975 (Cth)
Family Law Rules (2004)

APPLICANT: Ms Sukuraman

RESPONDENT: Mr Kemal

INDEPENDENT CHILDREN’S LAWYER: CM Bint Family Lawyers

FILE NUMBER: BRC 4849 of 2014

DATE DELIVERED: 24 April 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 20 April 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Cooper of Cooper Family Law

THE RESPONDENT: In Person

THE INDEPENDENT CHILDREN’S LAWYER: Ms Bint from CM Bint Family Lawyers

Orders

IT IS ORDERED THAT

1. The Application for review of the Order made 11 December 2014 is dismissed.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The orders of the Principal Registrar made 11 December 2014 be varied such that:          

   (a)Order 4 of that order is as follows:

   4. Each parent shall:

   ·within 7 days of the date of these Orders, contact the Contact Centre and arrange to attend the first available Intake session at that Centre; and

   ·accept the first available Intake session offered to that parent by the Contact Centre; and

   ·attend the first available Intake session offered to that parent; and

   ·do all things necessary to ensure the child’s time with the father commences on the first period of supervision made available by the Contact Centre; and

   ·do all things necessary to ensure the child’s time with the father occurs on the occasions and at the times made available by the Contact Centre; and

   ·comply with all reasonable rules of the Contact Centre;

   ·comply with all reasonable requests or directions of the staff of the Contact Centre;

   ·have leave to produce a copy of this Order, the Order made 11 December 2014, the Reasons for Judgment delivered by the Principal Registrar on 11 December 2014 and the Reasons for Judgment delivered today to the Contact Centre.

2. The Independent Children’s Lawyer has leave to provide such information as may reasonably be requested by the Contact Centre to the Contact Centre to facilitate the provision of supervision between the child and the father.

3. The father is at liberty to contact the Department of Communities, Child Safety & Disability Services Suburb B Family and Early Childhood Services and C Centre for the purpose of obtaining information from those services about the child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sukuraman & Kemal 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 BRISBANE

FILE NUMBER: BRC 4849 of 2014

Ms Sukuraman

Applicant

And

Mr Kemal

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 11 December 2014, the Principal Registrar made interim orders in respect of the care arrangements for the child D, born in 2011. Broadly, these orders provide:

   a)the child live with the mother; and

   b)the child spend time with the father on a supervised basis at a Contact Centre each Saturday for two hours until 18 September 2015; and

   c)thereafter, the child spend time with the father for a period of four hours each Saturday with changeovers to occur at a Contact Centre.

2. No order in relation to parental responsibility was made.

3. By application submitted to the Court on 15 January 2015 and filed on 23 January 2015, the mother seeks[1] to review that order.

   [1] Pursuant to ss 37A(9) and (10) of the Family Law Act 1975 (Cth).

4. Rule 18.08 of the Family Law Rules (2004) provides that a party may apply for review of a Registrar’s determination in respect of an interim parenting application within 28 days after the Registrar makes the order.

5. Consequently, the application for review is out of time. The father does not oppose the Court extending the time within which the review should have been filed and determining the competing parenting applications afresh. However, the Independent Children’s Lawyer does oppose such a course on the basis that the mother has not provided any explanation, or any adequate explanation, to found the making of such an order.

6. Rule 1.14 provides:

   a)a party may apply to the Court to shorten or extend a time that is fixed under these Rule or by a procedural order;

   b)a party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed;

   c)a party to makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s cots in relation to the application.

7. No guidance is provided by either the Family Law Act 1975 (Cth) or the Rules in relation to the exercise of discretion conferred by Rule 1.14.

8. In Gallo v Dawson[2], McHugh J said, relevantly, 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.

   [2] (1990) 93 ALR 479.

9. In Tormsen & Tormsen[3] the Court said, in the context of an extension of time involving appeal:

   The fundamental issue in applications for extension of periods of time prescribed by rules of court is whether this will enable the court to do justice between the parties: Hughes v. National Trustee Executors & Agency Co. of Australasia Ltd [1978] VR 257 at 262 per McInerney J. cited with approval in Gallo v. Dawson (1990) 93 ALR 479 at 480 per McHugh J. In that connection the Court must weigh the right which the respondent to the application prima facie has to attain the benefit of the judgment: Vilenius v. Heinegar (1962) 36 ALJR 200 at 201, and the desirability that there be finality of litigation: Ratnam v. Cumarasamy [1964] 3 All ER 933 at 935. A failure to explain the delay adequately can certainly lead to a conclusion that justice demands that the application be dismissed: Shepperdson v. Lewis [1966] VR 418 at 421, 422 per O'Bryan J. But in appropriate cases the interests of justice may outweigh the absence of an adequate explanation.

   [3] (1993) FLC 92-392.

10. Save for an assertion from the Bar table to the effect that the application for review was not filed within time because it was the end of year holiday period, there is no other basis advanced as a reason for dispensing with strict compliance with the Rules or granting an extension of time. There is no evidence of the reason for non-compliance.

11. To the extent the submissions advanced a further reason for non-compliance as the unavailability of the Principal Registrar’s settled Reasons for Judgment until 19 March 2015, it is relevant to note that the decision to seek to review the December 2014 Order had clearly been made well before then – as demonstrated by the filing of the Application for Review.

12. The fact of the availability of the process for review in the manner provided for by the Rules is, of itself, another matter which adds weight to my determination that relief from strict compliance with the terms of the Rules which apply to the review process should only be granted where the party seeking such indulgence establishes, on admissible evidence, that such compliance will work an injustice.

13. The proceedings were commenced by the father on 6 June 2014 when he filed an Initiating Application seeking that the child live with each parent on a week about basis. The mother’s response then[4] – and now – is that the child not come into contact with the father at all and that she be permitted to relocate the child to live in Country E.

    [4]           Response filed 8 July 2014.

14. There is no evidence before me different to that which was before the Principal Registrar – that is, nothing is said to have changed factually since the December 2014 Order was made.

15. If the application to extend time is made out, the consequence for the parties is that the Court will be asked to determine afresh their competing applications for parenting orders on the same material as was before the Principal Registrar. The same submissions were relied upon, although supplemented by further submissions. Such is the nature of the review process.

16. The consequence for the parties of a refusal of the application for leave to review the December 2014 Order is that that December Order remains operative. Its terms provide for supervised time – a parenting order more conservative than that recommended by the author of the Family Report.

17. The terms of the December 2014 Order have not been implemented. One of the aspects of exercising the discretion to extend time within which to seek a review is to ensure that the Rules which fix times for doing acts do not become “instruments of injustice”. However, a countervailing factor – and one which in this case is of particular significance – is that processes provided for within the Rules, including the possibility of seeking relief from non-compliance with the timeframes prescribed for the taking of certain steps, do not themselves become the very same instruments of injustice. So much is, I consider particularly the case in a matter such as this where a young child has not had the opportunity to spend time with a parent since July 2013.

18. In the circumstances and as outlined, I am not persuaded that there is material upon which I can be satisfied that to refuse the application would constitute an injustice and I am not persuaded that strict compliance with the Rules will work an injustice upon the Applicant.

19. For these reasons, I dismiss the application for review of the Order made on 11 December 2014.

20. I intend to make orders amending the December 2014 Order to reflect the passage of time and that compliance with certain of its terms by either party is now not possible. In particular, the parties will be afforded seven days from today within which to recontact F Contact Centre (the Contact Centre by which time is to be supervised).

21. I also intend to make further interim orders designed to assist in the implementation of the December 2014 Order.

22. Given that the child has not spent time with the father since 24 July 2013, it is imperative that he be afforded the opportunity to recommence his relationship with his father as soon as the Contact Centre can make time available for this purpose – thus, the parties will be ordered to attend at the first Intake interview offered by the Contact Centre and supervised time between the child and the father shall occur on the first occasion offered to the parties by the Contact Centre.

23. Additionally, given that the process appears to have broken down previously because the mother did not provide the Contact Centre with a copy of the December Order - ostensibly because she did not have leave to do so - I will order that both parties have leave to provide the Contact Centre with a copy of the December 2014 Order, the Order made today, the Reasons for Judgment delivered by the Principal Registrar on 11 December 2014 and the Reasons for Judgment delivered today.

24. Further, in case the Contact Centre requires further information from the Independent Children’s Lawyer, the Independent Children’s Lawyer shall have leave to provide such information as may reasonably be requested by the Contact Centre to facilitate the provision of supervision between the child and the father.

25. To maximise the father’s opportunity to obtain information about the child, his condition and presentation and other matters personal to him arising out of or connected with his diagnosis as a child with Autism Spectrum Disorder - so that he can learn about how best to deal with and manage his son’s behaviours - the father has liberty to contact the Department of Communities, Child Safety & Disability Services Suburb B Family and Early Childhood Services and C Centre for the purpose of obtaining information from those services about the child.

26. I record that, had I not determined to dismiss the application for review on the basis that I have, the application of the well-known principles for the determination of interim parenting matters[5] would have persuaded me that interim orders in terms of those made in December 2014 are orders which are in the child’s best interests.

    [5]see Goode & Goode (2006) 93-286 at paragraphs [81] and [82]; SCVG & KLD (2014) FLC 93-582; Banks & Banks [2015] FamCAFC.

27. I arrive at that conclusion because the provision of time on a supervised basis ensures that the child is not exposed to any risk asserted by the mother (and denied by the father) whilst affording him the opportunity to develop or continue to develop a meaningful relationship with his father. The benefit to him of this is likely to be that he has the opportunity to reunite with the father and develop a relationship with him.

28. Supervision on an interim basis also ensures that the child is supported during his re-acquaintance with the father and that the father is supported in his interactions with the child and as he learns to manage to deal with those aspects of the child’s behaviour and any special needs which arise from his having been diagnosed with Autism Spectrum Disorder. Additionally, the father’s interaction with the child will be observed and recorded so that the mother can receive information from independent parties about the manner in which the father interacts with the child and the way in which he manages the child’s behaviour.

29. The processes established by the Contact Centre will also enable the mother and Child Safely to participate in the process of supervised time, taking into account the terms of a varied Protection Order made by consent without admissions in the Magistrates Court at G Town on 16 September 2013 and which remains in force until and including 16 September 2015.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 24 April 2015.

Associate:                 

Date:    24 April 2015