ZUEN & LHAO
[2019] FamCAFC 151
•5 September 2019
FAMILY COURT OF AUSTRALIA
| ZUEN & LHAO | [2019] FamCAFC 151 |
| FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT OF APPEAL – Where the appeal was deemed abandoned after the mother failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – application opposed by the father – Where explanation for the delay – Where the proposed grounds of appeal may attract appellate intervention – Where reinstatement of the appeal would not be unjust to the respondent – Application to reinstate granted. |
| Family Law Act 1975 (Cth) s 61DA Family Law Rules 2004 (Cth) rr 22.13, 22.44 |
| House v The King (1936) 55 CLR 499 Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 |
| APPELLANT: | Ms Zuen |
| RESPONDENT: | Mr Lhao |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Wilkins |
| FILE NUMBER: | SYC | 6260 | of | 2017 |
| APPEAL NUMBER: | EA | 61 | of | 2019 |
| DATE DELIVERED: | 5 September 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 4 September 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 June 2019 |
| LOWER COURT MNC: | [2019] FamCA 314 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Neil Jackson |
| SOLICITOR FOR THE APPELLANT: | Sharah and Associates |
| COUNSEL FOR THE RESPONDENT: | Self-represented |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
Orders
That Appeal EA 61 of 2019 be reinstated.
That the appellant file and serve the draft appeal index within seven (7) days from the date of this order.
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 Zuen and Lhao 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 61 of 2019
File Number: SYC 6260 of 2017
| Ms Zuen |
Appellant
And
| Mr Lhao |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 8 August 2019, Ms Zuen (“the mother”) seeks an order to reinstate her appeal against final parenting orders made by Loughnan J on 5 June 2019. On 31 July 2019, her appeal was deemed abandoned by the operation of rule 22.13 of the Family Law Rules 2004 (Cth) (“the Rules”), because she failed to file a draft appeal index within the time prescribed.
It should be noted that the documents filed in relation to this Application seek orders to extend the time to file documents in the appeal, however, it is apparent that the applicant in fact intends to reinstate her appeal.
Mr Lhao (“the father”) is the respondent to the appeal and this application for reinstatement. It is his position that the application should be dismissed. In other words, that the appeal should not be reinstated.
The Independent Children’s Lawyer supported reinstatement.
The parenting orders concern the parties’ child, who was born in 2006 (“the child”). The orders relevantly provide for the father to have sole parental responsibility (Order 1), for the child to live with the father (Order 2) and spend time with the mother as agreed between the parties or at the initiative of the child (Order 3).
The mother brought an appeal against these orders on 3 July 2019, within the time for lodging an appeal. On 9 July 2019 the Eastern Appeals Registry contacted the parties via email, outlining the requirements of the appellant to file a draft index to the appeal books in accordance with the Rules. Accordingly, the mother had until 31 July 2019 to file her draft appeal index. This did not happen. On 6 August 2019, after the appeal was deemed abandoned, the mother’s solicitor attempted to file the draft index with the Eastern Appeals Registry, which was rejected. Thus, on 8 August 2019, the mother applied to reinstate the abandoned appeal.
Background
Given the issues raised on this application, it is useful here to extract the background from the reasons for decision of 5 June 2019, to give context and to lend understanding to the issues necessary to be determined in the application.
The parties met in Country Z in 2004, were married in 2006 and commenced living together in Australia in 2007. They separated on a final basis in May 2016. The child is the only child to the parties’ marriage. The father has an older child from another relationship.
The parenting proceedings were commenced by the mother in the Federal Circuit Court in September 2017. In August 2018, the proceedings were transferred to the Family Court.
The hearing before the primary judge proceeded over four days from 15 April 2019. An Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the child. The mother and the ICL were both represented by counsel but the father appeared without legal representation. Both of the parties were assisted by a language interpreter. On the oral evidence of the witnesses, his Honour noted the general imprecision in translating from one language to another and that “no conclusions about the credit of the parties were available as a result of cross-examination” [17].
Dr B, the single expert clinical psychologist (“the single expert”), prepared a report in the proceedings dated 25 October 2018. The single expert conducted interviews separately with the mother and the child. Though, due to ongoing issues of miscommunication between the single expert and the father, she was unable to conduct an interview with the father, nor did she conduct an observation between the child with either of his parents [49]. As a result, the single expert was unable to report on the father in any detail nor make observations of any interaction between the child and his parents. His Honour noted that “without any criticism of [the single expert], those things reduced the utility of her report and left the Court without important social science assessments. Indeed, [the single expert] acknowledged the concern arising from her inability to interview the father” [57].
At the time of the hearing, the child lived with the father and did not spend time with or communicate with the mother. Each parent sought orders for the child to live with that parent. The mother sought sole parental responsibility and that the child spend no time with the father. The father sought joint parental responsibility, except he alone make decisions about overseas travel, and that the mother spend supervised time with the child as agreed by the child.
Issues of family violence were raised by both parties, each saying that the child had been exposed to family violence at the hands of the other parent [73]. In early June 2016 the father assaulted the mother. The father was charged with assault occasioning actual bodily harm and on 15 June 2016, a final ADVO was granted against the father for the protection of the mother. There was no evidence to suggest that the child had been “abused, assaulted or neglected” since June 2016, although the single expert noted that there were allegations that the father had been psychologically abusing the child to reject his mother [77].
In relation to parental responsibility, his Honour found at [139] that the presumption under s 61DA of the Family Law Act (1975) Cth (“the Act”) had been rebutted due to family violence and, ultimately, his Honour found that the proper order was for the father to have sole parental responsibility.
In relation to living arrangements, it was the recommendation of the single expert and the ICL that the child change residence to live with the mother. However, his Honour found that there were “serious concerns” with the mother’s proposal, particularly in relation to the availability of accommodation suitable for her to live with the child, and the fact that the child is “implacably opposed” to any contact with the mother [145].
Reinstatement
Rule 22.44 provides that a party may apply to have reinstated an appeal taken to be abandoned under Chapter 22 of the Rules.
The principles relating to applications to reinstate an appeal are set out in Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516 (“Jackamarra”), in particular, Gummow and Hayne JJ at [33]:
…[W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Discussion
Delay
As was mentioned earlier, the mother’s Notice of Appeal was filed in time but her draft appeal index was not. The draft appeal index was due by 31 July 2019, the mother’s solicitor attempted to file it on 6 August 2019, six days out of time, and this application was filed two days later, on 8 August 2019.
The mother’s explanation for the delay in filing the draft index is that her solicitor was having difficulty accessing the relevant court documents in order to prepare the draft index. In addition to this, the mother’s solicitor explains that she had been experiencing delay in obtaining a grant of legal aid for her client. Thus, she could not properly prepare or present the mother’s appeal.
While this explanation is not particularly compelling, it should be borne in mind that the consequences of a solicitor’s default should not readily be imposed on the client (Jackamarra). Particularly in circumstances where there are language or cultural barriers which make it even more difficult than usual to engage with the court process.
In any case, the mother acted promptly in bringing the present application. When the mother’s presentation of this application is considered, it is accepted that she will present the documents required to prosecute the appeal in a timely fashion. In the circumstances the explanation for the delay is adequately explained.
Merits of the appeal
The mother’s grounds of appeal address the challenge she would make in relation to his Honour’s findings as to unacceptable risk to the child and family violence. Stated broadly, it is her contention that the primary judge failed to apply the legal principles in relation to these issues or provide adequate reasons, and, in any case, it is contended that his Honour’s findings are against the weight of the evidence. There are some difficulties in assessing the prospects of success of the proposed appeal. It is difficult to ascertain whether the matters raised could satisfy a House v The King (1936) 55 CLR 499 error; indeed the form of error that might engage appellate intervention. But there are potentially matters of substance raised that are, at this point, seemingly arguable.
I am not satisfied that the proposed appeal is so lacking in the merit that the appeal must fail.
Prejudice
It is accepted that the effect of refusing the mother’s application is that she would not be able to pursue her appeal.
On the other hand, it can be said that the father is prejudiced by the delay in bringing on the appeal. Further litigation, delay and expense could have a worrisome effect on him and the child. It follows that aspects of the effect of an order for reinstatement of the appeal cannot be addressed by an order for costs. These are significant matters that weigh against an order for reinstatement.
Other matters
It needs to be recalled that the parties have been in dispute about parenting matters since late 2017.
In relation to the parenting proceedings, a family report was prepared. The child expressed strong views that he wanted to live with the father and did not want to spend any time with the mother. These are strong findings in relation to which there is no challenge in the grounds of appeal. Against this background, it is a heavy burden to impose on the child even more litigation.
Conclusion
It should be determined that the applicant has provided sufficient explanation for the delay and that her proposed grounds of appeal provide a basis upon which one might conclude that her appeal is not doomed to fail. Further, she has established that the refusal of her application for reinstatement of her appeal would be unjust. The subject matter of the appeal concerns the welfare of the child and involves matters of real substance.
It follows that the application for reinstatement will be granted.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 4 September 2019.
Associate:
Date: 4 September 2019
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