BANE & HACKER
[2010] FamCAFC 47
•18 March 2010
FAMILY COURT OF AUSTRALIA
| BANE & HACKER | [2010] FamCAFC 47 |
| FAMILY LAW - APPLICATION IN AN APPEAL – Reinstatement of appeal – Where appeal deemed abandoned – Where father failed to file appeal book – Where application opposed by the mother and the independent children’s lawyer – Where father’s appeal previously reinstated – Where strict compliance with the rules could work an injustice on the father – Appeal reinstated. FAMILY LAW - COSTS – Where the father has been granted a further indulgence by the Court in again reinstating his appeal – Where it is appropriate in the circumstances that the father pay the mother’s and the independent children’s lawyer’s costs of the application. |
| Family Law Act 1975 (Cth) – s 94AAA Family Law Rules 2004 – r 1.04, r 1.06, r 10.7, r 1.08, r 1.14, r 22.44, |
| APPLICANT: | Mr Bane |
| RESPONDENT: | Ms Hacker |
| INDEPENDENT CHILDREN’S LAWYER: | Jane Stidwill |
| FILE NUMBER: | PAC | 179 | of | 2008 |
| APPEAL NUMBER: | EA | 43 | of | 2009 |
DATE DELIVERED: | 18 March 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 16 March 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 26 March 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 199 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Herbert Weller, Solicitor |
| SOLICITOR FOR THE RESPONDENT: | Lamrocks Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stidwill Solicitors |
Orders
The father’s appeal filed 22 April 2009 be reinstated.
The father shall file and serve an Amended Notice of Appeal on or before 31 March 2010.
The orders made by Registrar Halbert on 18 November 2009 be varied as follows:
(a)By deleting from Order 3 where appearing 25 February 2010 and inserting in lieu 31 March 2010 so that the order reads:
3.That the Appellant Father prepare a total of nine (9) copies of the appeal books, and file in the Sydney Registry of the Court on or before 31 March 2010, four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.20(2) of the Family Law Rules 2004, and serve on or before 31 March 2010 two (2) copies of the appeal books on the Respondent Mother, together with a copy of the certificate, and serve on or before 31 March 2010 two (2) copies of the appeal books on the Independent Children’s Lawyer, together with a copy of the certificate.
(b)By deleting from Order 5 where appearing 18 March 2010 and inserting in lieu 14 April 2010 so that the order reads:
5.That the Appellant Father file and serve his Summary of Argument and List of Authorities with the Appeals Registrar on or before 14 April 2010.
(c)By deleting from Order 6 where appearing 15 April 2010 and inserting in lieu 30 April 2010 so that the orders reads:
6.That the Respondent Mother file and serve her Summary of Argument and List of Authorities with the Appeals Registrar on or before 30 April 2010.
(d)By deleting from Order 7 the date 6 May 2010 and inserting in lieu 19 May 2010 so the order reads:
7.That the Independent Children’s Lawyer file and serve her Summary of Argument and List of Authorities, if any, with the Appeals Registrar on or before 19 May 2010.
That the father pay the mother’s and the independent children’s lawyers costs of and incidental to this application as agreed but failing agreement as assessed under Chapter 19 of the Family Law Rules, 2004.
IT IS NOTED THAT in the event that the father fails to comply with Orders 2, 3(a) and 3(b) the mother or the independent children’s lawyer may file an application to be heard by the Full Court that the father’s appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bane & Hacker is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 43 of 2009
File Number: PAC 179 of 2008
| Mr Bane |
Applicant
And
| Ms Hacker |
Respondent
REASONS FOR JUDGMENT
Introduction
On 25 February 2010 an Application in an Appeal was filed by Herbert Weller, solicitor on behalf of Mr Bane. The application seeks that an appeal filed by Mr Bane on 22 April 2009 be reinstated. The Notice of Appeal was filed by Mr Bane when he was not legally represented.
By Response to an Application in an Appeal filed on 1 March 2010 Ms Hacker opposed Mr Bane’s application and sought that his Application in an Appeal be dismissed and that he pay her costs of and incidental to the application.
A Response to an Application in an Appeal was also filed on 15 March 2010 by Jayne Louise Stidwill. Ms Stidwill is the Independent Children’s Lawyer (“the ICL”). Ms Stidwill also sought that the father’s Application in an Appeal be dismissed and that he pay the ICL’s costs of and incidental to the application in the sum of $660.00.
Applications were received from Ms Hacker’s solicitor and the ICL to appear at the hearing by telephone. Mr Bane has been represented by Herbert Weller since December 2009, and he appeared at the hearing.
Mr Bane and Ms Hacker are the parents of the child, Z. The child was born in May 2004 and is presently aged five years. For convenience in these reasons I will refer to Mr Bane as “the father” and Ms Hacker as “the mother”.
The parties’ competing applications for parenting orders were heard by Federal Magistrate Halligan on 16, 17 and 18 February 2009 and the Federal Magistrate delivered written reasons for judgment on 26 March 2009. The Federal Magistrate ordered that the mother have sole parental responsibility for the child and that the child live with her. He also made orders for the child to spend time with the father each alternate weekend from 10.00 am Saturday until 4.00 pm Sunday and on other special occasions. The Federal Magistrate’s orders also provide for the father to spend block periods of time with the child during school holiday periods. The orders further provide for arrangements for changeover to occur at the Relationships Australia Contact Service at P.
Procedural background
It is necessary I say something about the procedural background to this matter.
It is not in dispute that the father filed a Notice of Appeal on 22 April 2009, that is, within the time prescribed in the Family Law Rules 2004 (“the rules”).
On 22 April 2009 the father filed an Application in an Appeal. In that application he sought that the orders made by the Federal Magistrate be reversed, the child’s name be amended and that there be an urgent hearing “in regard’s to the safety and wellbeing of my son as presently known as [the child’s given and surname name]” (original spelling and grammar).
Prior to that application being heard the father’s appeal lapsed in accordance with the rules, as he had failed to file a draft appeal book index.
On 21 May 2009 the father filed his second Application in an Appeal. In that application he sought the orders in his previous application and an additional Order 3 in the following terms:
3. An extension of six week’s please as we are waiting on settlement of our sale on home to pay expenses to solicitors and barrister’s. (original spelling and grammar)
The father’s application came before me on 28 May 2009. On that day I delivered ex tempore reasons for judgment and set out some background information. I will shortly repeat that background information.
I dealt with the father’s application for expedition and determined the criteria for expedition had not been established. I determined that the father’s appeal should be reinstated and I made further orders, including an order that the father file a draft appeal book index by 17 July 2009 and thereafter requested the Regional Appeal Registrar to conduct a procedural hearing to settle the appeal book index.
The matter came before me again on 17 September 2009 after the father failed to comply with my order to file a draft appeal book index. In my ex tempore reasons delivered on 17 September 2009 I noted that the father’s failure to file his draft appeal book index had the result that his appeal was deemed abandoned. On that occasion the mother instructed her solicitor she did not oppose the application for reinstatement. The ICL was noted to oppose the application but had filed no material, nor were any submissions made on her behalf, a prior arrangement having been made the matter to be mentioned on her behalf by the mother’s solicitor.
In those reasons I set out the background material appearing in my earlier judgment. At paragraph 11 of my reasons I noted:
The father’s application today, on its face, is not compelling. It is now approximately five months since the father said he was selling his home to obtain legal assistance. There is no admissible evidence before me that he has sold the home or retained solicitors. …
I also noted:
I also take into account the mother must be left in a state of uncertainty as to whether or not this appeal is proceeding. So far as I can see no attempt has been made by the father to file a draft appeal book index, and to progress his appeal.
I went on to note the concession from the mother’s solicitor, and in the exercise of my discretion, allowed the father until 13 November 2009 to file a draft appeal book index.
At paragraphs 13 to 16 of my reasons I noted as follows:
13.Before the proceedings conclude today I will ensure the father is given a copy of the rules dealing with the content of an appeal book, and the order of documents to be contained in a draft appeal index. I will also ensure that the father is aware that he may request inspection of the Federal Magistrates Court file in the event he needs to check the name of a deponent of an affidavit before the Federal Magistrate or the date of filing of any affidavit. I note that details of at least some of the affidavits relied upon before Halligan FM are referred to in his reasons for judgment. It is also clear from the judgment that a Family Report had been prepared by a Family Consultant and was before the Federal Magistrate. I will also ensure the father is advised he can inspect the exhibits tendered in the proceedings. I have caused my associate to check the Federal Magistrates Court file and I am satisfied that the exhibits are in that file.
14.I also propose to request the Appeal Registrar’s assistant to provide the father with the relevant documents explaining how a transcript of the proceedings from the Federal Magistrates Court’s previous transcript supplier can be obtained.
15.I will explain to the father the need to ensure that, if he does not obtain legal representation, he must himself take responsibility for the preparation of his documents. I am satisfied, with the measures I propose, that he will have access to all the necessary material to prepare his draft appeal book index.
16.In the interests of justice I propose to grant a further extension of time as sought by the father but that extension be limited to 13 November 2009, and to make orders otherwise in accordance with his oral application. In light of previous non-compliance, if there is any further non-compliance with the rules, the father must be aware that it may very likely result, if the appeal again is deemed abandoned, in the appeal being dismissed by the Full Court.
I was advised today by Mr Weller the appeal books have not yet been prepared and are not ready for filing. The documents to be included in the appeal book were received by Mr Weller from the mother’s solicitor on 3 March 2010.
Background
The relevant background to this appeal is set out in my reasons delivered 28 May 2009 and I incorporate those reasons into these reasons for judgment. For convenience, I specifically repeat paragraphs 13 to 22:
13.Some background facts which do not appear to be controversial are found in the Federal Magistrate’s reasons for judgment.
14.The mother was born [in June 1969] and is aged 39 years. The father was born [in November 1974] and is aged 34 years. The parents were in a relationship from about February 2003 to August 2005, but never cohabited. [Z] was born [in May 2004].
15.The mother has two other sons who are not the father’s children. [X] born [in February 1990] aged 19 years and [Y] born [in July 1997] aged 11 years.
16.The father is married to [Ms Bane]. The date of their marriage is not recorded by the Federal Magistrate but it appears the marriage occurred in either late 2006 or before December 2007.
17.In September 2005 the father had commenced parenting proceedings. The proceedings were finalised with the making of consent orders on 2 November 2006, the final day of the hearing of the proceedings.
18.On 6 June 2008 interim orders were made in the proceedings the subject of the appeal. The interim orders provided for a new “change-over” venue to implement orders that the child spend time with the father.
19.On 30 July 2008 a family violence order against the father for the mother’s protection, previously made on 12 July 2006, was extended to July 2010.
20.The Federal Magistrate noted “the most significant issue raised in these proceedings is whether the child is at an unacceptable risk of physical or sexual abuse by the mother if in her unsupervised care” (reasons paragraph 13). The Federal Magistrate also explained as relevant to his determination was “the toxic relationship between the parents and the father’s extremely negative view of the mother” (reasons paragraph 13).
21.The Federal Magistrate determined, at paragraphs 74 and 75 of his reasons, after his examination of the evidence, that there was not an unacceptable risk of sexual abuse or physical abuse if the child spent unsupervised time with the mother.
22.I perceive from the father’s annexures to his application he seeks to challenge in his appeal the treatment of the evidence by the Federal Magistrate which ultimately led to his determination in paragraphs 74 and 75 of his reasons.
Evidence in this application
The father relies on the affidavit of Ms A (“the clerk”) sworn 24 January 2010. Ms A deposes she is a clerk employed by the father’s solicitor. I pause here to note that a Notice of Address for Service was filed on behalf of the father by Herbert Weller, solicitor on 23 February 2010.
The clerk deposes that on 16 December 2009 letters were sent to the mother’s solicitor and to the ICL to confirm Mr Weller’s instructions to act on behalf of the father. She further deposes:
5.… A request was issued to provide a complete copy of all pleadings and other relevant documentation to enable Mr Weller to familiarise himself with the papers and to properly advise the Applicant.
The clerk notes that the mother’s solicitor responded requiring an undertaking to meet the cost of photocopying documents and that the ICL had responded advising she was unable to provide the relevant documents.
In paragraph 8 of her affidavit, the clerk deposes to the mother’s solicitor requesting the sum of $420.00 for photocopying of relevant documents and that the mother’s solicitors had unsurprisingly advised they were not in possession of the transcript. The clerk deposes that this response from the mother’s solicitors was received whilst Mr Weller’s office was closed during the period for Christmas with the office reopening on 11 January 2010.
Thereafter the clerk deposes to a meeting with the father to request he pay the cost of photocopying and transcript. She deposes a quote was obtained for the provision of transcript which was estimated to be $2,820.00.
Unfortunately much of the material in the clerk’s affidavit is inadmissible and although she refers to correspondence, a copy of the relevant correspondence is not annexed. She does depose to funds being received into the solicitor’s trust account on 5 February 2010 and a cheque being drawn in favour of Merrill Legal Solutions for the transcript on 8 February 2010. The clerk deposes to the relevant days of the transcript being progressively received via email on 17 and 18 February 2010. She further deposes to funds being deposited into the trust account of Mr Weller on 23 February 2010 and that on the same day a cheque was drawn payable to Lamrocks in the sum of $420.00 requesting provision of complete photocopying of pleadings, reports and court notices held by the solicitor for the mother.
She deposes “I am currently awaiting receipt of said documents”.
The clerk deposes to having received a sealed copy of the orders made by Registrar Halbert on 18 November 2009.
Paragraphs 20 and 21 of the affidavit are in the nature of submissions. I have treated them as such. Those paragraphs are:
20.In the circumstances I am obliged to respectfully request the court’s consideration of the orders contained in the Application of Appeal [sic] filed herein being an order for the Applicant to be granted an extension in time of six (6) weeks within which to file the appeal books. The length of time is sought because Mr Weller is a sole practitioner and he needs to have received the copied documents from the solicitor for the [mother] and to have time to peruse all of the documents for inclusion in the appeal books before I collate and duplicate the necessary number of appeal books for filing and service.
21.I am aware that the timetable in the orders made by Registrar Halbert on 18 November 2009 will need to be amended in accordance with the extension in time granted to the Applicant for filing and service of the appeal books and would respectfully ask the court to consider the dates in the remaining timetable for amendment to suitable dates to be fixed by the court in agreement by the parties.
The father’s solicitor acknowledged he had now received documents from the mother’s solicitor, and had obtained transcript.
The mother relies on an affidavit of her solicitor filed on 1 March 2010. In that affidavit the mother’s solicitor sets out, as I have done earlier in these reasons, the procedural history relevant to the appeal. She notes that on 18 November 2009 the Appeal Registrar wrote to the father enclosing a copy of the orders made at the procedural hearing, as well as copies of the relevant rules. She also states that on 25 November 2009 she received from the Assistant to the Appeal Registrar a list of the exhibits. Thereafter she annexes copies of the correspondence between her firm and Mr Weller. The affidavit is silent as to what steps were then taken to provide the photocopied documents sought on payment of the sum of $420.00 but as I have already noted that material has now been supplied.
The ICL also filed an affidavit to be read in the proceedings. The ICL notes she was present at the procedural hearing and heard nothing from Mr Bane until 18 December 2009 when she received a letter from Mr Weller asking for a copy of all the relevant documents.
Paragraph 9 of her affidavit is also in the form of a submission. In that paragraph she says:
In all the circumstances, I believe that Mr [Bane] has been given every opportunity to prosecute his appeal and I do not believe that his application for a further extension of time should be granted.
Relevant statute law and rules
Section 94AAA of the Family Law Act 1975 (Cth) (“the Act”) is relevant to this application. Sections 94AAA(10)(g), (11) and (12) are also relevant. Those sub-sections provide as follows:
(10) Applications of a procedural nature, including applications:
(g)to reinstate an appeal dismissed under a provision of the Rules of Court;
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 deals with appeals. The rules relevant to this application are r 1.14 and r 22.44. They are as follows:
Rule 1.14 Shortening or extension of time
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) 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.
(3)A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
Rule 22.44Application for reinstatement of appeal
A party may apply to have an appeal taken to be abandoned under this Chapter reinstated.
Discussion
At the hearing the father’s solicitor indicated he had not been served with the responses filed by the mother or the ICL, nor had he received the two affidavits in support of those responses. He advised that he had been provided with all relevant documents from the mother’s solicitor on 4 March 2010, and although he had not yet photocopied or paginated the appeal book, that he could do so within 14 days.
The mother’s solicitor appeared by telephone so she was unable to tender any documents to the Court to prove service of her response and affidavit in support. However she informed me that the response had been served by facsimile on 25 February 2010 and subsequently forwarded by DX. When the matter commenced the mother’s solicitor informed me that she was mentioning the appearance of the ICL, and that the ICL’s documents had been served on her and the father’s solicitor.
In order to afford the father’s solicitor procedural fairness, I stood the application down to enable him to read the responses and the affidavits in support of those responses.
In response to questions raised by me with the father’s solicitor during the course of his submissions it emerged the father’s solicitor had not:
·read the Notice of Appeal filed by the father;
·read the Federal Magistrate’s reasons for judgment; and
·inspected the Court file.
It also emerged that the father’s solicitor had not read my earlier reasons for judgment in this appeal delivered in May 2009 and again in September 2009. I note that my ex tempore reasons of 28 May 2009 were taken out and forwarded to the parties on 2 July 2009. My reasons for judgment of 17 September 2009 were forwarded to the parties on 28 October 2009.
I also note that notwithstanding I commented in the earlier hearings on the deficiencies in the Notice of Appeal (and also referred to these deficiencies in my earlier judgments) no amended Notice of Appeal has been filed nor, it appears, has any application for a stay of the Federal Magistrate’s orders been made. Further, no further application for expedition has been made. I make these comments against the background of the father’s assertions before me that evidence relevant to the safety of the child was either not before the Federal Magistrate or ignored by him, and that an urgent rehearing was required.
It appears to me quite extraordinary that the father’s solicitor, who acknowledges he has had instructions since December 2009, has not read and advised on the Federal Magistrate’s reasons, and whether an appeal against Halligan FM’s orders has any reasonable prospect of success.
It is appropriate that I draw attention to relevant provisions of the rules, particularly rr 1.04, 1.06(e), (f), (g) and (j), 1.07 and 1.08. They provide as follows:
Rule 1.04 Main purpose of Rules
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
Note Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
Rule 1.06 Promoting the main purpose
The court must apply these Rules to promote the main purpose, and actively manage each case by:
…
(e) setting realistic timetables, and monitoring and controlling the progress of each case;
(f) ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;
(g) considering whether the likely benefits of taking a step justify the cost of that step;
…
(j) having regard to any barriers to a party’s understanding of anything relevant to the case.
Rule 1.07 Achieving the main purpose
To achieve the main purpose, the court applies these Rules in a way that:
(a) deals with each case fairly, justly and in a timely manner;
(b) encourages parties to negotiate a settlement, if appropriate;
(c) is proportionate to the issues in a case and their complexity, and the likely costs of the case;
(d) promotes the saving of costs;
(e) gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and
(f) promotes family relationships after resolution of the dispute, where possible.
Rule 1.08Responsibility of parties and lawyers in achieving the main purpose
(1) Each party has a responsibility to promote and achieve the main purpose, including:
(a)ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders;
(b) complying with the duty of disclosure (see rule 13.01);
(c) ensuring readiness for court events;
(d) providing realistic estimates of the length of hearings or trials;
(e) complying with time limits;
(f) giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event;
(g) assisting the just, timely and cost-effective disposal of cases;
(h) identifying the issues genuinely in dispute in a case;
(i) being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact;
(j) limiting evidence, including cross-examination, to that which is relevant and necessary;
(k) being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and
(l) complying with these Rules and any orders.
(2) A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).
Note The court recognises that a lawyer acts on a party’s instructions and may be unable to establish whether those instructions are correct.
(3) A lawyer attending a court event for a party must:
(a) be familiar with the case; and
(b) be authorised to deal with any issue likely to arise.
Note The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10 (1) and subclause 6.10 (1) of Schedule 6).
In dealing with this application I must consider whether the rules will work an injustice on the father or cause prejudice to the mother.
It is noteworthy that the mother generously consented to giving the father, who was then unrepresented, what might be described “as one last chance” by not opposing the reinstatement of the appeal on 17 September 2009, although at that time the reinstatement was opposed by the ICL. Not surprisingly given the indulgences granted to the father to date, the mother now opposes the reinstatement.
A reading of the Federal Magistrate’s reasons discloses a carefully considered and principled approach to the issues he was required to determine. The ground of appeal which asserts that the Federal Magistrate’s decision about the child’s name was “unfair” appears to have little merit having regard to the Federal Magistrate’s discussion of this topic, and his actual order which provides a hyphenated name for the child.
The Federal Magistrate’s reasons, while critical of aspects of the father’s behaviour, are also critical of the mother’s actions particularly in respect of her unilateral actions in registering the child’s name with her surname contrary to the parties’ agreement.
Although the father’s allegations of sexual abuse by the mother of her child of an earlier relationship dominated the trial, no ground asserting error by the Federal Magistrate on this topic is raised by the father. Rather the father’s complaints so far as I can ascertain are directed to an incident involving the police where the Federal Magistrate records the child was removed from both parties’ care and put into the care of the Department of Community Services (“DoCS”) (as it was then named). At paragraph 76 of his reasons the Federal Magistrate explained:
The only matter about which protective concerns for [Z] genuinely arise in my view is an incident when the parents argued and contested physical possession of the child. The parents gave conflicting versions of this incident, and I am unable to determine where the truth lies with certainty. However, I am satisfied that the father’s attempts to place the sole responsibility for this incident on the mother are unjustified, and flow from the father’s narrow and rigid attitude. The incident was serious enough that the police and ambulance were called, the police removed the child from both parents because of concerns the child may have been physically abused, and the child was conveyed to hospital for his physical wellbeing to be checked. The child remained in the care of the Department of Community Services for a few days and was then returned to the parents.
I was unsure from the father’s previous applications whether his assertion was that the Federal Magistrate did not have the DoCS and/or Police file in evidence before him, or that he had that file but had given insufficient weight to the evidence in the DoCS or the Police files. I accept if the former, it may be, if there is evidence which is accepted by a Full Court or a Judge hearing the appeal pursuant to a direction by the Chief Justice under s 94AAA(3) which would demonstrate that the decision under appeal is erroneous, that strict compliance with the rules could work an injustice on the father.
The other factors which I take into account in considering this application are:
·the father has provided funds to his solicitor to obtain transcript and to obtain photocopies of relevant documents from the mother’s solicitor;
·the father’s solicitor has assured the Court that the appeal book can be filed and served within 14 days;
·the mother and the ICL’s costs have been minimised by the Court permitting them to appear by telephone for each application in an appeal;
·the father (or his solicitor) can be ordered to pay the mother and the ICL’s costs in respect of this application; and, significantly
·the father’s appeal has not been heard on its merits.
Weighing against those factors are the following matters:
·the appeal was filed 11 months ago and has not been diligently prosecuted;
·the Notice of Appeal contains no recognisable grounds of appeal;
·the father has been legally represented for 3 months but:
- the Court file and the appeal file have not been inspected;
- no consideration at all has been given to the reasons for judgment of Halligan FM or the grounds of appeal to assess whether or not the appeal has any or any reasonable prospects of success;
- no extension of time to file the appeal books or to comply with any procedural direction of the Appeal Registrar was sought or obtained;
·the Court has granted an indulgence to the father on two previous occasions in reinstating his appeal, and providing him with access to the CD of the transcript, copies of relevant rules, and information about how to access the Court file and exhibits;
·the mother who has the primary care of the child faces uncertainty unless the appeal is diligently prosecuted or dismissed; and
·in the event any new issue of child safety arises an application may be made at first instance to vary the existing orders.
The factors favouring the reinstatement of this appeal are closely matched by factors favouring the dismissal of the application. On balance, in the interests of justice it appears to me that the father should be given a final chance to prosecute his appeal if so advised by his solicitor.
It is clear the father’s solicitor needs to carefully consider the evidence before the Federal Magistrate, the reasons for judgment of Halligan FM, and if he discerns an appeal has reasonable prospects of success, to promptly file an Amended Notice of Appeal.
Given it is 11 months since this appeal was filed, and having regard to the Court time, and expense the mother and the ICL have incurred thus far, I intend to make orders for the filing of an Amended Notice of Appeal, the appeal book and summary of argument within a constrained timetable. Proper consideration should be given by the father and his legal advisors as to whether or not the appeal should be discontinued.
In the event the father fails to comply with the orders I propose to make, then it may be appropriate for the mother or the ICL to formally apply to a Full Court seeking summary dismissal of the appeal.
Costs
The father has been able to obtain funds for the transcript. He deposed in his earlier affidavits in this appeal he was selling his home to obtain funds for legal expenses. The Court has granted him a further indulgence again in reinstating his appeal.
In these circumstances, I am satisfied he should pay the mother’s and the ICL’s costs of this application.
Although the ICL sought costs in the sum of $660.00 I was not provided with any breakdown of those costs. Accordingly, I propose to order the father pay the mother’s and the ICL’s costs as agreed and failing agreement as assessed.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 18 March 2010
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