BALMER & BALMER - [2020] FamCAFC 281

FAMILY COURT OF AUSTRALIA

BALMER & BALMER

[2020] FamCAFC 281

FAMILY LAW – APPEAL – NON-COMPLIANCE – Where the appeal is listed for consideration of dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant has not complied with procedural orders made to prepare the appeal for hearing – Where the appellant has been given the requisite notice – Where the appeals are almost wholly devoid of merit – Where the explanation for the appellant’s failure to comply with the procedural orders is weak – Where there is no realistic prospect of the appellant being able to comply with further procedural orders within a timeframe which does not visit undue prejudice to the respondent – Appeals dismissed – No order as to costs.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought an extension of time to comply with procedural orders and an adjournment of the appeal hearing – Where the first and third appeals are futile –Where the court is not satisfied the appellant will comply with further procedural orders in a timely manner – Where the second appeal lacks merit – Application dismissed.

Family Law Act 1975 (Cth) s 102NA
Family Law Rules 2004 (Cth) r 22.45

Langford and Coleman (1993) FLC 92-346; [1992] FamCA 68

APPELLANT:

Mr Balmer

RESPONDENT:

Ms Balmer

INDEPENDENT CHILDREN’S LAWYER:

ELR Law

FILE NUMBER:

BRC

15038

2018

APPEAL NUMBERS:	NOA	39	of	2020;
NOA	40	of	2020;
NOA	54	of	2020

DATE DELIVERED:

17 November 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Brisbane via video link

JUDGMENT OF:

Tree J

HEARING DATE:

6 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 June 2020

LOWER COURT MNC:

[2020] FCCA 1826

REPRESENTATION

THE APPELLANT:

Self-represented

COUNSEL FOR THE

RESPONDENT:

Ms Hellewell

SOLICITOR FOR THE

RESPONDENT:

Hofstee Lawyers

COUNSEL FOR THE

INDEPENDENT

CHILDREN’S LAWYER:

Ms Christie

SOLICITOR FOR THE

INDEPENDENT CHILDREN’S
LAWYER:

ELR Law

Orders

Appeal NOA 39 of 2020 be dismissed.
Appeal NOA 40 of 2020 be dismissed.
Appeal NOA 54 of 2020 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 Balmer & Balmer 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
BRISBANE

Appeal Numbers: NOA 39 of 2020; NOA 40 of 2020; NOA 54 of 2020
File Number: BRC 15038 of 2018

Mr Balmer

Appellant

And

Ms Balmer

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Mr Balmer (“the appellant”) has brought three appeals from decisions of the primary judge relating to the parties’ three children.
On 31 August 2020, a Registrar made orders intended to prepare the appeals for hearing before me on 6 November 2020. However, with one exception I shall shortly detail, the appellant has not complied with those orders, and hence the appeals were not ready to then proceed.
By letter dated 21 October 2020, the Registrar noted the appellant’s non-compliance with her orders and drew the parties’ attention to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”) and advised that “…the Court will consider whether to make such an order [under r 22.45 of the Rules] dismissing the appeal at the hearing listed at 9.30am on Friday 6 November 2020.”
Late in the afternoon of 5 November 2020, the appellant filed an Application in an Appeal, supported by a short affidavit sworn by him, seeking to extend the time for compliance with the 31 August 2020 orders, and adjourning the hearing of the appeals to a date to be fixed. That application was opposed both by Ms Balmer (“the respondent”) and the Independent Children's Lawyer. On 6 November 2020, I dismissed that application for reasons to be published in due course.
I then heard the parties in relation as to whether or not the appeals should be dismissed pursuant to r 22.45 of the Rules. At the conclusion of that hearing, I reserved my decision. This is that decision and the reasons for it. It is also convenient to include in this judgment, the reasons why I dismissed the Application in an Appeal filed 5 November 2020.

Background

Three children were born to the parties’ marriage, being X, who is presently 12 years of age, Y, who is presently 10 years of age and Z who is presently 3 years of age.
It appears that the parties’ separation has been acrimonious and the ensuing litigation highly conflictual. For most of that litigation, the appellant has been self-represented. However, in light of allegations of family violence which the respondent made against the appellant, in advance of the trial, an order was made by the primary judge pursuant to s 102NA(1) of the Family Law Act 1975 (Cth) (“the Act”) prohibiting the appellant from personally cross-examining the respondent, and requiring any such cross-examination to be conducted by a legal practitioner.
It appears as though on 9 April 2020, at a directions hearing in this matter before the primary judge, the appellant advised the court that he had been granted legal aid for the purposes of the trial, but had been unable to yet instruct the solicitor appointed for that purpose. A further mention of the matter occurred on 22 April 2020. The appellant was represented by his solicitor at that time, who unsuccessfully sought an adjournment of the hearing. Trial directions were then made, and the matter was confirmed as listed for hearing over three days commencing 11 May 2020.
One of the directions then made, was for the filing of the appellant’s affidavit material by 6 May 2020. Although that material was filed late, no objection was taken to it by either the respondent or the Independent Children's Lawyer at the trial.
On the first day of the trial, the matter was stood down while the parties undertook negotiations. That resulted in significant matters being agreed, and the parties seeking orders by consent in relation to them. These included that the parents have equal shared parental responsibility for the children who, on and from 10.00am Saturday 23 May 2020, would move to live with the respondent, and thereafter spend alternate weekends and half school holidays with the appellant. Orders were also agreed in relation to special occasions and incidental matters. Significantly, the consent orders providing for the children to live with the respondent reversed long standing arrangements which had seen the children primarily live with the appellant.
However some relatively slender matters proved unable to be agreed. These included whether the two older children should spend time with the appellant for four hours after school in alternate weeks (which was resolved in the appellant’s favour), whether, in the event that the respondent was working during school holidays, the children should be offered to be placed with the appellant rather than placed in vacation care (which was also resolved in the appellant’s favour) and whether the appellant should have telephone contact with the children every day, or less frequently (which was resolved against the appellant). These matters were all the subject of ex tempore reasons for judgment delivered and orders pronounced on 11 May 2020. (Although those orders were later amended on 20 May 2020, for convenience I shall nonetheless refer to them as the 11 May 2020 orders).
However, things did not thereafter proceed smoothly. Particularly the children were not handed over by the appellant to the respondent on 23 May 2020 as the consent orders required. The respondent brought a recovery order application, which was heard by the primary judge on 4 June 2020. His Honour ordered that the appellant deliver the children to the Child Dispute Services of the Federal Circuit Court of Australia in Brisbane at 10.00am on the following day, in default of which a recovery order would issue. The appellant did not deliver the children to the registry, and accordingly the children were recovered by police.
Next, on 8 June 2020, the appellant sought a stay of the 11 May 2020 orders from the primary judge, which was refused. Then on 9 July 2020, consequent to X having run away from the respondent’s home, and gone back to the appellant’s, the primary judge suspended the 11 May 2020 orders in relation to her. Thereafter, on 14 July 2020, orders were made for X to spend time with the respondent each alternate weekend.
However, it appears as though the appellant continued to withhold at least Z from the respondent, and on 24 July 2020 the primary judge ordered that the respondent retrieve Z from her day care centre, but made a recovery order in case the appellant acted so as to prevent the child going into the respondent’s care. At that hearing, the respondent also sought a three month moratorium on the two younger children spending time with the appellant. The primary judge reserved his decision in relation to that matter, and delivered it on 30 July 2020, making the orders sought. That moratorium expired on 30 October 2020.

The appeals

The first appeal was filed on 5 June 2020, but relates to the orders of 4 June 2020, not the primary parenting orders of 11 May 2020. The grounds of appeal are as follows:
1.        The judge failed accord me procedural fairness;
2.        The judge failed to provide an opportunity to provide evidence;
3.        There was a denial of natural justice;
4.        The judge was biased.
(As per the original)
The second filed appeal, a little confusingly, although filed on 8 June 2020, relates to the 11 May 2020 orders. According to the Amended Notice of Appeal filed 10 September 2020, the grounds are as follows:
1.Section 102NA(1)(c)(iv) of the Family Law Act in unconstitutional. The effect of enforcement of Section 102NA(1)(c)(iv) of the Family Law Act in this matter was that it prevented me from being able to conduct the proceedings on 11 May 2020 in accordance with my wishes.
2.The Judge failed to accord me procedural fairness at a directions hearing held on 22 April 2020, which had a direct and adverse impact on the proceedings on 11 May 2020.
3.The Judge effectively denied me a fair trial and the right to be heard on 22 April 2020, which had a direct and adverse impact on the proceedings on 11 May 2020.
4.The Judge effectively denied me a fair trial and the right to a fair hearing on 11 May 2020.
5.The Judge failed to provide me with an opportunity to provide evidence on 11 May 2020.
6.The Judge was biased.
7.The Solicitors imposed upon me by the Court were negligent, failed to act in accordance with my instructions and failed to properly advise me at all times subsequent to their appointment.
8.The Solicitors imposed upon me by the Court failed to abide by my instructions on 22 April 2020, which directly and adversely impacted on the proceedings on 11 May 2020.
9.The Solicitors imposed upon me by the Court failed to abide by my instructions on 11 May 2020.
10.The Solicitors imposed upon me by the Court failed to represent my interests on 11 May 2020 and, as a result, failed to represent the best interests and wellbeing of the Children.
11.The ICL failed to properly discharge her duties.
12.There was a denial of natural justice.
(As per the original)
The third appeal was filed on 20 August 2020, and relates to the moratorium orders of 30 July 2020. The grounds of appeal are as follows:
1.The Judge failed to afford me procedural fairness.
2.The judge was biased in his decision.
3.The Judge denied me natural justice.
4.The Judge relied upon untested evidence and/or I was denied the opportunity to have that evidence tested and properly considered in the Court and/or under oath.
5.The Judge failed to properly consider all evidence available to him at the time of making of the orders and/or I was denied the opportunity to have that evidence fully tested and properly considered in the Court and/or under oath.
6.The Judge made a decision that was not in the best interests of the named children and/or their wellbeing; whether collectively or individually.
7.The decisions were wrong and were not in compliance with the Family Law Act 1975.
8.The reasons given by the Judge for his decision were inadequate, contradictory and/or without merit.
(As per the original)

Why the adjournment was refused

By his Application in an Appeal filed 5 November 2020, the appellant sought to enlarge the times for compliance with the orders of the Registrar made 31 August 2020, and in doing so, necessarily sought to have the appeal put over to a date to be fixed, likely in the first half of 2021. That application encompassed all three appeals. However different considerations apply to the first and the third appeal, given that the recovery order made on 4 June 2020 was ultimately executed, and the moratorium ordered by the 30 July 2020 orders has now expired, and hence both of those appeals are now futile. When I challenged the appellant about that during the course of his submissions, he indicated that the utility of the first appeal lay in the fact that costs were ordered against him by the primary judge, and hence the appeal remained a vehicle to challenge that order. However none of the present grounds of appeal in fact address that issue. I do not overlook that the orders of 31 August 2020 contained the opportunity for the appellant to file an Amended Notice of Appeal, which perhaps may have structured grounds to attack the costs order, but that is by no means certain.
Given that both appeals lack utility, it was difficult to see how the interests of justice could have possibly supported the adjournment sought by the appellant, and the enlargement of the timetable for filing documents to ready those appeals.
Further, whilst the basis upon which the appellant sought the adjournment related to his asserted inability to undertake certain steps arising from ill health and emotional turmoil, that does not speak in any way against the futility of the appeals.
In any event, as I explained to the appellant during the course of submissions, under r 22.45 of the Rules, one of the options available to me is to expand the time for compliance with the orders which have not been undertaken, and in that sense, his Application in an Appeal was a duplication. Whilst I accept that r 22.45 contemplates that, if an extension were ordered under it, further default in compliance would result in dismissal, which were not the orders the appellant sought by his Application in an Appeal, nonetheless there is still substantial overlap between the two.
For those reasons I declined to make the orders sought in relation to the first and third appeals as set out in the appellant’s Application in an Appeal filed 5 November 2020.
The second appeal falls into a different category, in that the orders which it challenges are still operative, and success in the appeal would not lack utility.
The appellant says in his affidavit filed 5 November 2020 that he was distressed by the moratorium imposed on 30 July 2020, and thereafter found it difficult to concentrate, particularly on matters associated with this case. He also asserts he suffered a cardiac event on 8 (presumably 3) November 2020, however, not only does he not specify what that comprised, and how it impacted upon his ability to undertake preparation of the appeal, but in any event, the timetable required the preparatory work to be completed well prior to then.
Several other relevant matters should also be stated, as follows:
(a)There is no medical or psychological evidence to support any of the appellant’s assertions;
(b)The appellant did not raise any concerns when he appeared before the Registrar on 31 August 2020, when the timetable was ordered. By then, of course, a full month of the moratorium had elapsed;
(c)In any event, albeit two days late, thereafter on 10 September 2020 the appellant did undertake one of the steps required of him under the 31 August 2020 orders, namely he filed an Amended Notice of Appeal in the second appeal. This would tend to suggest that he was in fact capable of undertaking work in matters associated with this litigation in a relatively timely manner, given that it was only some 10 days after the 31 August 2020 orders.
At best, therefore, the explanation for the appellant’s delay is poor; at worst, it is non-existent.
In any event, there was no evidence which would enable me to comfortably conclude that the timetable proposed by the appellant would be likely complied with by him. Particularly, whilst he told me in oral submissions that it had taken him about three weeks to draft the relatively simple Application in an Appeal and affidavit filed on 5 November 2020, yet in that application he contemplated being required to file Amended Notices of Appeal within five days, and thereafter comply with a relatively rigorous timeline.
Finally, as I have previously discussed in relation to the first and third appeals, I am obliged under r 22.45 to consider whether there should be an extension of the timetable (albeit with an accompanying self-executing order).
Also relevant are the merits of the second appeal. Whilst I shall discuss those later in the context of r 22.45, there are many obstacles in the path of its success, not least of which is that the orders which are the subject of challenge were ordered by consent. Whilst consent orders may be the subject of appeal, they cannot be challenged as to their correctness, or whether they reflect the intention of the parties: Langford and Coleman (1993) FLC 92-346. At the trial, the appellant was represented by an experienced family law solicitor and counsel, and moreover, it cannot be said that the appellant wholly capitulated to the respondent, in that some orders were made by consent, and some remained in contest.
Weighing all of those matters in the balance told strongly in favour of the dismissal of the Application in an Appeal filed 5 November 2020 insofar as it related to the second appeal.
I therefore ordered that the Application in an Appeal be dismissed.

Rule 22.45 of the rules

The issue in relation to r 22.45 was raised on the court’s own motion by correspondence dated 21 October 2020. That was understandable in the context of, save for the late filing of the Amended Notice of Appeal in the second appeal, the appellant’s wholesale failure to comply with the 31 August 2020 orders.
Rule 22.45 of the Rules provides as follows:
Dismissal of appeal and applications for non-compliance or delay
(1) This rule applies if:
(a) the appeal is not taken to have been abandoned; and
(b) a party (the defaulting party) has not:
(i) met a requirement under these Rules or the Regulations;
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii) shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
(i) dismiss the appeal or application; or
(ii) fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
(b) if the defaulting party is the respondent:
(i) fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii) proceed to hear the appeal or application.
(3) The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
(4) An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.

I am satisfied that the appellant has been given the requisite notice pursuant to subsection (3).
The respondent and the Independent Children's Lawyer argued two principal matters in support of their claim that the appeals should be dismissed. The first was that no appeal had merit, and the second was that there was no basis upon which I could be satisfied that, if ordered, any extension of time for compliance with the 31 August 2020 orders would likely be met by the appellant.
Turning firstly to the question of the merits of the appeals, I have already noted that the first and third appeals are futile. To the extent that the first appeal was intended to challenge the costs order, it does not presently do so. In any event, given that the application which resulted in the orders of 4 June 2020 was necessitated by the appellant’s non-compliance with the earlier consent orders, and absent any readily identifiable error of law or fact in the primary judge’s discretionary conclusion that there should be an order for costs, it is difficult to construe any appeal about the costs order as enjoying any tangible prospects of success.
The second appeal is again in a different category.
The first ground of appeal alleges that s 102NA(1)(c)(iv) of the Act is unconstitutional. It is difficult to discern any argument which could justify that assertion. In any event, as has already been seen, the appellant complied with the order made under that section, and obtained legal representation. He made no application to have that legal representation dispensed with. Moreover, the subsequent orders of 11 May 2020 were ultimately, in large part, made by consent, and no challenge in this appeal arises from the orders which were not made by consent. It is difficult in those circumstances to see how the alleged constitutional challenge could be properly mounted by the appellant.
As to Grounds 2 and 3, these appear to be a challenge not to the orders of 11 May 2020, but rather to the procedural orders made in directions on 22 April 2020, when the appellant’s application for an adjournment was refused. However it was not in dispute before me that, at that hearing, the appellant’s solicitor conceded that he had sufficient time to prepare trial material and otherwise prepare for the hearing, and whilst the reasons for the adjournment being refused were not in evidence before me, it appears likely that was a significant consideration for that decision. However, as I have already noted, the appellant was able to file material (albeit late) which was not objected to by the other parties. In any event, there remains the nigh insuperable obstacle to these grounds of appeal, that the orders which the appellant now seeks to disturb dealing with the living arrangements of the children, were indeed made by consent, which it seems the appellant now regrets. Regret, however, does not comprise appealable error.
Ground 4 alleges a denial of a fair trial. It is not possible to discern exactly how the alleged unfairness unfolded, again, in large part, because of the orders then made being mostly by consent.
Ground 5 is plainly misconceived. There was an opportunity for the appellant to present evidence at the trial, and that opportunity was indeed taken up by him. True it is that, because there were significant matters ordered by consent, the appellant’s solicitor and counsel, in agreement with the other legal practitioners, did not seek to cross-examine upon any material, but only made submissions. Nonetheless, the material that the appellant had filed late was before the court, and was unchallenged.
Ground 6 alleges bias, but it is not easy to see how, in the context of consent orders, the primary judge could possibly be said to have demonstrated actual or ostensible bias. Further, as I have already noted, the appellant succeeded in two of the three contested matters, and it could not conceivably be said that, by refusing to allow the father to have daily telephone communication with the children, the primary judge demonstrated bias. This ground appears without merit.
Grounds 7, 8, 9 and 10 are complaints about the competence of the solicitors who appeared for the appellant. It is not at all clear how any incompetence – assuming that there was any – caused the primary judge to err in this case. Particularly, the recommendations of the family report writer were that the children should move into the respondent’s care because of the risk that, if they did not, the appellant would, in effect, preclude them from having a relationship with her. Competent lawyers would give significant weight to such a recommendation, and recognise that it may not be easily shifted in cross-examination. Absent such challenge, a court would likely give the recommendation significant weight. It is difficult to see that there is any basis or substance to the allegations of negligence or misconduct here, much less that it led to appealable error.
Ground 11 alleges that the Independent Children's Lawyer failed to properly discharge their duties. Again, there is a complete absence of particularity in relation to this claim, but one assumes that the complaint likely is that the Independent Children's Lawyer supported the orders which were ultimately made by consent. That could not possibly, of itself and without more, speak to an improper discharge of their duties. Indeed Independent Children's Lawyers are often confronted with the need to make recommendations and propose orders, which are directly contrary to the interests of one of the parties. However here, the parties were in substantial agreement.
Finally, Ground 12 alleges a denial of natural justice, but again is bare of any particularity. In any event, given that the orders which the appellant now seeks to impugn were made by consent, it is difficult to see how any want of procedural fairness could possibly infect them with appealable error.
Ultimately the conclusion that I draw is that the second appeal has little, if any, merit.
Turning then to the second matter relied upon by the respondent and the Independent Children's Lawyer, namely that any further extension of time is likely to be a futile exercise, I must agree. Taking at face value the appellant’s submission that he presently has difficulty concentrating and working, it would be unrealistic to impose the timetable which he sought as appended to his Application in an Appeal filed 5 November 2020. Further, there is a complete absence of proper evidence as to the asserted improvement in the appellant’s capacity to comply with orders in the future in this context. It cannot be overlooked that no asserted incapacity was raised before the Registrar on 31 August 2020, and there was not a breath of communication from the appellant in relation to any asserted incapacity prior to his application being filed the day before the matter was listed for hearing.
Finally, I should repeat my conclusion earlier in these reasons that the appellant’s explanation for delay in compliance with the 31 August 2020 orders is, at best, poor.
I do not overlook that the orders which the appellant seeks to appeal from changed the care of the children from himself to the respondent, but those orders were made by consent, accorded with the family report writer’s recommendations, and at the trial the appellant was legally represented.
The appeals are either wholly, or almost wholly, devoid of merit, the explanation for the appellant’s failure to comply with the 31 August 2020 order is not properly supported by appropriate material, and in any event, weak, and there is no basis upon which I could legitimately conclude that there is any realistic prospect of the appellant being able to comply with a timetable for the delivery of further material, within a timeframe which does not visit undue prejudice to the respondent. Unfortunately for the appellant, weighing those matters in the balance does not tell in favour of an extension of time under r 22.45, even if accompanied by self-executing orders dismissing the appeal in the event of further default.
All three appeals will be dismissed.

Costs

No party sought any order for costs in the event that the appeals were dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 17 November 2020.

Associate:

Date: 17 November 2020