Zedenyi and Sabel

[2018] FamCAFC 113

FAMILY COURT OF AUSTRALIA

ZEDENYI & SABEL [2018] FamCAFC 113  

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the application provides no explanation for the failure to file a Notice of Appeal on time – Where the proposed appeal concerns orders made in the absence of the applicant – Where the applicant may apply to set aside the orders pursuant to Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 – Where refusing an extension of time would occasion no injustice in circumstances where the applicant may apply to set aside the orders – Application dismissed.

Family Law Act 1975 (Cth) s 67Q
Family Law Rules 2004 (Cth) r 16.05(2)(c)

Gallo v Dawson (1990) 93 ALR 479

APPLICANT: Ms Zedenyi

RESPONDENT: Mr Sabel

FILE NUMBER: SYD 6883 of 2017

APPEAL NUMBER: EA 69 of 2018

DATE DELIVERED: 21 June 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 21 June 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 18 April 2018

LOWER COURT MNC: [2018] FCCA 1500

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. That the Application in an Appeal filed on 29 May 2018 be dismissed.

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 Zedenyi & Sabel 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).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 69 of 2018
File Number: SYC 6883 of 2017

Ms Zedenyi

Applicant

And

Mr Sabel

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. This is an application by Ms Zedenyi (“the mother”) for an extension of time to file a notice of appeal against parenting orders made by Judge Henderson on 18 April 2018.  The orders were made on an ex parte basis.   

3. The parenting proceeding concern the parties’ son, born April 2015 (“the child”).  Mr Sabel (“the father”) is the child’s father and the respondent to the application.  Correspondence received on the father’s behalf this morning has revealed that he has not been served with any of the material relied upon by the mother.  It is purely by chance that his solicitors saw the matter in the court list.  But for that circumstance, he was completely unaware that the application had been filed and was listed this morning. 

4. There is no appearance by or on behalf of the mother today and rather than adjourn the application given, in my view, it is defective and must fail, I have elected to proceed and will place some remarks about the merits of the application on the record.  This is so that if the mother subsequently decides to press an application such as this again, she will consider the wisdom of doing so.

5. The proposed appeal concerns a recovery order made pursuant to s 67Q of the Family Law Act 1975 (Cth) (“the Act”). On 18 April 2018 Judge Henderson heard the father’s application and ordered that the child be recovered and returned to the care of his father and remain in the care of his father. The latter arrangement is intended to apply pending further order.

6. The mother removed the child from the Commonwealth of Australia in April 2015.  Proceedings in Country B under the Hague Convention have been finalised and, as I understand it, appeal rights exhausted.  The mother was ordered to return the child to Australia.  The mother has failed to do so and the child remains in Country B. 

7. The father’s application for recovery was filed in the Federal Circuit Court on 21 March 2018.  At the hearing it was the father’s case that such an order may assist the Country B authorities to move matters along so that the child might be returned to Australia in accordance with the orders of the Country B court.  The recovery order itself does not operate in Country B but the thinking behind the application as reflected in her Honour’s reasons, is that it would provide an extra piece of the jigsaw for the child’s recovery.

8. The primary judge dispensed with service of the father’s application upon the mother.  In so doing, her Honour was concerned that if the mother were to receive notification that the court had made a recovery and a live with order, she may endeavour to defeat the effectiveness of the orders and disappear again with the child.  The correspondence received this morning from counsel for the father suggests this is indeed what may have occurred.  The father has travelled to Country B and an earlier attempt by him to locate the mother and child was unsuccessful.  

9. The mother’s failure to comply with the orders of the Country B Court was persuasive of her Honour proceeding to a hearing in the mother’s absence. 

Discussion

1. It must be noted that, pursuant to r 16.05(2)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), the mother had 28 days from the date of service of the orders made on 18 April 2018 within which to activate the process referred to in r 16.05(2)(c) of the Rules. Those rules, relevantly, enable the Federal Circuit Court to set aside, vary, suspend or stay orders that have been made in the absence of a party without that party needing to demonstrate an error of law of the type that would be required for a successful appeal. There is no doubt that this provides an appropriate remedy for the mother to challenge the continuance of the orders she seeks to disturb on appeal however she has instead elected to pursue an appeal. However, she is out of time.

2. The principles relating to applications for an extension of time to file an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic and involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for the parties of the grant or refusal of leave.

3. I am conscious that the mother has not presented any argument in support of her application and one must therefore be cautious about expressing a view about its possible merits. It does seem to me however, that in circumstances where the mother could have applied to set aside and/or vary the orders made by the primary judge pursuant to the Rules and where there is no explanation for her failure to adopt that appropriate course, her prospects of successfully enlivening the court’s discretion to give an extension of time to file an appeal would be best described as remote.

4. Assuming that service of the subject orders has been affected on the mother, and that the 28 day timeframe referred to in r 16.05(2)(c) has lapsed, it is open to her to seek an extension of time in the court below within which to make the challenge available pursuant to the Rules.

5. I also observe that the mother provides no explanation for her failure to file a notice of appeal in time.

Conclusion

1. The application will be dismissed.  It is not in fact dismissed on its merits because I have not yet had the benefit of argument.  I have placed these remarks on the record so that the mother might consider what I have had to say before she makes any further attempt to obtain an extension of time within which to appeal the subject orders.  She would no doubt be mindful that if she does seek a further extension of time, that if she is unsuccessful, she runs the risk of being ordered to pay the respondent’s costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 June 2018.

Associate: 

Date:  25 June 2018