Atwood and Atwood

[2017] FamCAFC 239

FAMILY COURT OF AUSTRALIA

ATWOOD & ATWOOD [2017] FamCAFC 239

FAMILY LAW – APPLICATION IN AN APPEAL – Reinstatement – Extension of time to file a draft index to the appeal books – Application allowed.

Family Law Rules 2004 (Cth) rr 22.13, 24.01

APPELLANT: Ms Atwood

RESPONDENT: Mr Atwood

FILE NUMBER: SYC 3943 of 2014

APPEAL NUMBERS:	EA	40	of	2017
EA	91	of	2017

DATE DELIVERED: 12 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 12 September 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 10 April 2017

LOWER COURT MNC: [2017] FamCA 368

REPRESENTATION

THE APPELLANT: In person

SOLICITOR FOR THE RESPONDENT: Condon Legal Pty Ltd

Orders

1. That pursuant to r 22.13(2)(b) of the Family Law Rules 2004 (Cth) the time in which the Applicant must file a draft index to the appeal books be extended up to and including 4:30 pm on Friday 15 September 2017.

2. That the appeal be reinstated.

3. That the Applications in an Appeal filed in EA40/2017 on 24 July 2017 and EA91/2017 on 15 August 2017 are otherwise dismissed.

NOTATION:

(A)The Court notes that it has been explained to the applicant that it is a matter for the Registrar to determine whether the document she proposes to file as the draft index to the appeal books is a document that should properly be filed.

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 Atwood & Atwood 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 JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number:  EA 40 of 2017; EA 91 of 2017
File Number:  SYC 3943 of 2014

Ms Atwood

Appellant

And

Mr Atwood

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 24 July 2017, Ms Atwood (“the applicant”) seeks the following order:

   I am appealing that my handwriting was unreadible [sic] and the paperwork attached be accepted to allow the appeal for the change of conveyancer and access to property.

2. The documents in support of that application and the application itself are difficult to follow; however, the import of the application can be inferred from the history of the matter.

3. The applicant has been engaged in proceedings with Mr Atwood (“the respondent”) for some time.  The parties have a child aged 11 who has lived with the father since July 2015 following an intervention by the Department of Family and Community Services.  On 10 April 2017, Loughnan J refused an application by the mother that the child attend a language school.  No appeal was taken from that decision.  On the same day, his Honour made a suite of orders in relation to the party’s property at M Street, Suburb G.  In short, the orders required that the applicant vacate the property, which was to be sold as set out in the orders.

4. On 1 May 2017, the applicant filed a Notice of Appeal against these orders.  I understand her principal contention is that she would prefer someone other than the solicitor for the respondent to act as the conveyancer upon the sale of the property.

5. On 2 June 2017, the appeals registrar wrote to the parties advising that as the applicant had not filed a draft index to the appeal books by 29 May 2017 in compliance with r 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”), the appeal was taken to be abandoned on that day. The letter was sent in error. The written record of Loughnan J’s reasons was published on 30 May 2017, and the 28 day period for filing a draft appeal index ran from that day (see r 22.13(2)(a)(ii)).

6. On 22 June 2017, the registry received an Application in an Appeal and a draft index.  I do not need to deal in any detail with the documents that were sought to be filed other than to say that the proposed draft appeal index was wholly inadequate.  On 23 June 2017, the applicant attempted to file an Application in an Appeal seeking reinstatement of her appeal.  It was rejected by the registrar, who provided the following reasons on 10 July 2017:

   ·The Application in an Appeal was handwritten and largely illegible;

   ·The Application in an Appeal had not been completed in full;

   ·The applicant had not recorded what orders she sought;

   ·The affidavit in support was handwritten, contrary to r 24.01(1) of the Rules;

   ·The application unnecessarily attached a Draft Notice of Appeal; and

   ·The attached draft index to the appeal books was not in the prescribed format and did not set out the documents to be included in the appeal books.

7. In essence, the applications sought a review of the registrar’s decision to reject the applications for reinstatement of the appeal; however, given the proposed draft appeal index that was attached to them, the applications would have been doomed to fail because the draft appeal index was wholly inadequate.

8. I am concerned, however, that not only is the applicant acting for herself but that her difficulties have been compounded by the Court erroneously informing her that her appeal had been deemed to be abandoned because she had not filed her draft appeal index within time.  Whether or not the applicant would have filed an appropriate draft index within the time she was, in fact, permitted to file it is a different matter.

9. The matter comes before me today after two adjournments because the applicant was not able to establish that she had served the respondent.  The respondent appears today through his solicitor.  In all of the circumstances, the respondent and the solicitor acting for him have very properly consented to me treating the applications by the applicant as, in fact, being applications for reinstatement of her appeal and consented to such an order being made.  In the circumstances of this case, I agree that it is appropriate that the applicant be given a chance to file a draft appeal index which she had earlier been denied.

10. However, it is important to note that it will be a matter for the registrar to determine whether any draft appeal index proposed to be filed by the applicant is in a proper form and should be filed. What I propose to do is extend the time for filing the draft appeal index under r 22.13 until a day next week. If the applicant is unable to provide a draft appeal index satisfactory to the registrar, then by virtue of that rule the appeal will again be deemed to be abandoned. That, however, is a matter for the applicant.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 12 September 2017.

Legal associate: 

Date:  13 November 2017