BARCLAY & PATON
[2016] FamCAFC 263
•13 December 2016
FAMILY COURT OF AUSTRALIA
| BARCLAY & PATON | [2016] FamCAFC 263 |
| FAMILY LAW – APPEAL – APPLICATION TO LEAD FURTHER EVIDENCE – Where the respondent seeks leave to adduce further evidence – Where the evidence sought to be led relates to complaints that the respondent has that are not raised in the appeal before the court – Where the respondent has not filed a cross-appeal and there is no utility in the further evidence sought to be led being admitted – Application dismissed. FAMILY LAW – APPEAL – ORAL APPLICATION TO ADJOURN – Where the respondent seeks to adjourn the hearing of the appeal to file a Notice of Cross-Appeal – Where the respondent asserts that as she is without legal representation and she was not fully aware of what was required in relation to a cross-appeal – Where having heard the submissions of the parties in relation to the appeal the initial view is that the appeal should be allowed – Where an adjournment would cause significant prejudice to the appellant who should be allowed to enjoy the fruits of a successful appeal and what he thought was to be a correct order made by the trial judge in finalisation of the property settlement dispute between the parties – Where the complaints that the respondent would want to raise on a cross-appeal do not appear to have a reasonable chance of success – Where it is still open to the respondent to make application for an extension of time to file her own appeal – Application dismissed. |
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| APPELLANT: | Mr Barclay | ||
| RESPONDENT: | Ms Paton |
| FILE NUMBER: | MLC | 3010 | of | 2015 |
| APPEAL NUMBER: | SOA | 62 | of | 2016 |
| DATE DELIVERED: | 13 December 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
JUDGMENT OF: | Strickland J |
| HEARING DATE: | 13 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 1508 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Puckey |
| SOLICITORS FOR THE APPELLANT: | Clancy & Triado |
| THE RESPONDENT | In person |
Orders
The respondent have leave to rely on her application in an appeal dated 9 December 2016 and the affidavit in support of that same date, together with the summary of argument dated 8 December 2016.
The application in an appeal dated 9 December 2016 be dismissed.
The oral application of the respondent to adjourn the hearing of this appeal be dismissed.
Judgment be reserved.
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 Barclay & Paton 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 MELBOURNE |
Appeal Number: SOA 62 of 2016
File Number: MLC 3010 of 2015
| Mr Barclay |
Appellant
And
| Ms Paton |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is the hearing of the Notice of Appeal filed by Mr Barclay (“the appellant”) on 5 August 2016 against an order made by Judge Burchardt on 8 July 2016. The appellant is represented by counsel, and the respondent Ms Paton (“the respondent”) appears without legal representation.
At the commencement of the hearing of this appeal I raised with the respondent that she had attempted in the last few days to file an application in an appeal seeking to lead further evidence, supported by an affidavit containing that evidence. The Family Law Rules 2004 (“the Rules”) require that any such application be filed at least 14 days prior to the commencement of an appeal, and thus, without this court giving leave to the respondent to rely on that application in an appeal, and affidavit, it could not be before this court.
To that end the respondent provided to the court today an application in an appeal, supported by an affidavit, seeking leave “for the late filing and service of the application in an appeal to adduce further evidence and the supporting affidavit” to which I have just referred. There is another order sought in that application which I will come back to in a moment.
Dealing first with the application in relation to the application in an appeal to lead further evidence. That application is not opposed by the appellant, and given that, I am prepared to allow the application in an appeal dated 9 December 2016, and the affidavit in support sworn on that same date, to be before the court.
To repeat, there is another order sought in the application in an appeal which relates to the late filing and service of the respondent’s summary of argument. I note that that summary was filed later than was permitted by the orders made on 7 October 2016. Again though, there is no opposition to this court granting leave to the respondent to rely on that summary of argument, and thus, I propose to grant that leave.
I have also raised with the respondent that despite being received the application in an appeal must be dismissed because the application is in relation to further evidence in support of submissions made by the respondent in her summary of argument, to the effect that there were errors made by the trial judge in certain calculations, and in failing to take into account relevant considerations outside of the subject of the appeal that is before the court. There is no cross-appeal filed by the respondent, and thus there is no utility in the further evidence that is now sought to be led being admitted.
Given those circumstances, I propose to order that the application in an appeal dated 9 December 2016 be dismissed.
The application to adjourn
As I have recorded in these reasons, earlier today I dismissed an application in an appeal filed by the respondent seeking to adduce further evidence in the appeal. I dismissed that application because the further evidence sought to be adduced went to issues which were unrelated to the appeal that is before the court, and the problem the respondent had in that regard, was that she had not filed a cross-appeal to challenge the order made by the trial judge, on grounds other than the grounds of appeal that the appellant was pursuing in his appeal.
Accordingly, the hearing of the appeal proceeded, but during the course of the hearing the respondent sought an adjournment to enable her to file a cross-appeal. That application was opposed, and I then heard submissions in relation to it.
In support of the application the respondent indicated to me that she had consulted two legal practitioners in relation to the appellant’s appeal, and one of those practitioners, as she put it, had mentioned the issue of a cross-appeal, but the respondent told me that she did not understand what that meant, and she did not pursue it. In summary, her position is that without proper legal representation she was not aware of the need to file a cross-appeal if she wished to challenge the order of the trial judge on grounds other than those raised in the appeal by the appellant, and thus she did not file a cross-appeal.
I accept that explanation by the respondent, but of course there are two parties before me. There is the appellant and the respondent, and this appeal has been before this court effectively since 5 August 2016 when the Notice of Appeal was filed. To adjourn the matter would inevitably create a delay in the finalisation of this appeal. That is particularly significant because, having heard the submissions of the parties in relation to the appeal, I had come to an initial view that the appeal should be allowed. If that ultimately became my concluded view, after reserving my decision as I plan to, and revisiting the relevant documents, and the relevant arguments, the effect of that would be that the respondent would be required to pay the appellant a further amount of just under $44,000. As I understand it the respondent has paid the appellant the amount required of her pursuant to the order made by the trial judge which is the subject of the appeal.
I mention that specifically because it would be a significant prejudice to the appellant to not be able to enjoy the fruits of a successful appeal, let alone the fruits of what he thought was going to be a correct order made by the trial judge, in terms of the finalisation of the property settlement dispute between the parties.
In the context of considering the application to adjourn though, I raised with the respondent, and counsel for the appellant, that if the adjournment was not granted, that would not prevent the respondent from making an application for an extension of time to file a discrete appeal against the orders made by the trial judge, and, subject to that extension being granted, she being able to pursue that appeal. That is a relevant matter to take into account.
Plainly a further relevant factor in considering the application to adjourn is the merits of any cross-appeal. Thus, I have taken some time to explore that with the respondent, and she has identified the areas of complaint that she says she has, and would want to raise in a cross-appeal. Fortunately, those matters are contained in her summary of argument which was filed in relation to this appeal, she thinking, incorrectly as it has turned out, that she could raise those matters in the context of the appeal by the appellant. As I have indicated to the respondent, and indeed, as can be seen by my dismissal of her application in an appeal to lead further evidence, that is not the case. In any event, having addressed those matters with the respondent it is apparent to me, and I am not suggesting this is a concluded view, but the view I have come to about that, is that the complaints that the respondent would want to raise would not have a reasonable chance of success.
That may prove different if the respondent does pursue an extension of time to appeal discretely and pursue an appeal, but I cannot comment further in relation to that option.
Given those matters, in my view, an adjournment should not be granted to allow the respondent to file a Notice of Cross-Appeal.
I certify that the preceding sixteen (16) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 13 December 2016.
Associate:
Date: 15 December 2016
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