Bellamy and Gladwell
[2017] FamCAFC 47
•21 March 2017
FAMILY COURT OF AUSTRALIA
| BELLAMY & GLADWELL | [2017] FamCAFC 47 |
| FAMILY LAW – APPEAL – where there was no appearance by or on behalf of the respondent husband – where the respondent husband filed an application to adjourn proceedings – where the reasons provided by the husband for adjournment were not adequate – where that application was dismissed – where it was ordered that the husband be provided a further opportunity to file a written summary of argument – where it was ordered that a transcript be provided to the parties. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Bellamy |
| RESPONDENT: | Mr Gladwell |
| FILE NUMBER: | CAC | 1423 | of | 2014 |
| APPEAL NUMBER: | EA | 106 | of | 2016 |
| DATE DELIVERED: | 21 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Murphy, Kent & Watts JJ |
| HEARING DATE: | 21 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 4 July 2016 |
| LOWER COURT MNC: | [2016] FCCA 1648 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bevan |
| SOLICITOR FOR THE APPELLANT: | Bevan & Co Lawyers |
| THE RESPONDENT: | No appearance |
Orders
The Application in an Appeal filed by the respondent husband on 21 March 2017 be dismissed.
A transcript of these proceedings on 21 March 2017 be provided urgently at the expense of the Family Court of Australia and thereafter forwarded by the Appeals Registrar to each of the parties to the appeal.
That within 10 days from the date the transcript is forwarded to the parties pursuant to Order 2, the respondent husband file and serve any written summary of argument upon which he seeks to rely in respect of the appeal including in respect of the costs of the appeal.
In such event as outlined in Order 3, the appellant wife file any submissions strictly in reply within 7 days of service of the respondent husband’s summary of argument.
At the expiration of the periods contemplated in Orders 3 and 4, 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 Bellamy & Gladwell 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 106 of 2016
File Number: CAC 1423 of 2014
| Ms Bellamy |
Appellant
And
| Mr Gladwell |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Murphy J
This appeal was conducted in unusual circumstances where the respondent did not appear. The court is agreed as to orders that will be made in that event so as to accord the husband an opportunity to present such submissions as he might wish to do so in writing, notwithstanding his failure to comply with earlier directions.
On 15 July 2016 the wife filed a Notice of Appeal against orders for settlement of property made by Judge Brewster on 4 July 2016. On 24 August 2016 the appeals registrar made procedural orders in that appeal. The husband was present when those orders were made. Paragraph 6 of those orders provided “[t]hat the Respondent Husband file and serve his Summary of Argument and List of Authorities, such list of authorities to comply with attachment “A” to these orders, with the Appeals Registrar on or before 2 December 2016” (emphasis in original).
The appeal was listed to be heard by this bench at 2.15 today. Yesterday the appeals registrar received via email a medical certificate apparently from the husband.
For reasons which will shortly become clear, the precise terms of that medical certificate should be quoted. It is given by a Medical Centre and signed by a doctor and dated 20 March 2017. It provides as follows:
THIS IS TO CERTIFY THAT
Mr [Gladwell] has a medical condition and will be unfit for work from 20/03/2017 to 21/03/2017 inclusive.
Patient said he has a cold.
That medical certificate was annexed to an email forwarded by the husband to the appeals registrar. It seems to me important to quote the terms of that email. The email reads:
Dear [Registrar],
We will have to set another date for the court appearance.
I am not fit enough to attend tomorrow, my daughter has given me a nasty cold from play school.
I have a severe headache, dry cough and diarrhea [sic].
Medical certificate attached.
It is signed, “Regards, [the husband].”
Later that same day the appeals registrar wrote to the husband in these terms:
Dear Mr [Gladwell]
I refer to your email below.
This appeal remains listed before the Full Court sitting in Sydney at 10:00 am tomorrow.
At this stage of the proceedings the hearing could only be adjourned by the Judges before whom it is listed and only then if a proper application supported by affidavit is filed and served. I note that your email and the accompanying medical certificate does not constitute an application for an adjournment.
Your email and the attached medical certificate will be provided to the Full Court hearing the appeal however you should assume that the hearing of the appeal will proceed tomorrow. If you are not present, the hearing may proceed in your absence.
It is signed, “Regards, [the appeals registrar].”
It will be noted that the email to which I have just referred indicates that this appeal was to be heard at 10 am today. The appeals registrar forwarded a subsequent email to Mr [Gladwell], indicating that the appeal would be heard at 2.15, which is when this appeal started.
Today an application in an appeal and accompanying affidavit was filed by the respondent husband. That application and affidavit, it appears, had not been served upon those representing the wife in this appeal. A copy of the affidavit and application was provided to Mr Bevan, who appears today as counsel for the wife.
It can be said simply that the application and affidavit does not take the application for adjournment any further than that which is disclosed in the husband’s email and its accompanying medical certificate. It should be noted that the doctor, in providing the medical certificate, makes no diagnosis of his own but rather says “patient said he has a cold” (emphasis added). The application for adjournment can, in my view, be seen to rest on the flimsiest of foundations.
Nevertheless, the husband represents himself and the Court has determined to provide an opportunity to him to have such arguments as he might desire put before the Court so that they might be heard.
That said, counsel for the mother today advises us of some urgency arising from arrangements that had been made with a bank in respect of a mortgage that is the subject of some aspects of the appeal. We are told that the arrangements expire on 30 June this year and that, therefore, it is imperative that the appeal be heard and determined. Those facts were put before us in answer to a query from the bench as to what prejudice the wife might suffer that could not otherwise be recompensed in costs.
In those circumstances, while we have determined to provide the husband with an opportunity to put such relevant submissions before the court as he might desire, at the same time, account should be taken of the urgencies about which we have been told and to limit all such inconvenience and cost to the wife as might be possible.
It is for those reasons that we determined to provide a transcript of the proceedings today at the court’s expense and forward them to the wife and those who represent her, as well as the husband, and to afford him the very significant indulgence of an opportunity to provide written submissions despite the fact that he has not, in any material filed by him, or emails sent to the court, provided any explanation for why he has not provided his written outline of argument despite having more than three months in which to do so.
It is for those reasons that we indicated that we had determined to make orders in terms of those which I have earlier set out.
Given that the transcript of these proceedings and these reasons will be forwarded to the husband, and on the assumption that he will read each it should be made very clear to him that no further indulgences will be granted to him.
For those reasons, then, I would make the orders that I have earlier indicated the court agrees should be made.
Kent J
I agree with the orders proposed by Murphy J and I agree with his Honour’s reasons. I would only add that paragraph 7 of the orders made by Registrar McNamara provided for liberty to apply to either party. As Murphy J has pointed out, neither the medical certificate nor the affidavit relied upon in support of this application by the husband explains why he did not comply with the requirement to file his summary of argument by 2 December 2016, nor is there any explanation as to why he did not make an application under the liberty to apply provision.
In those circumstances it is, as Murphy J points out, a significant indulgence to the respondent to be given yet a further opportunity to file a written outline of argument.
Otherwise, I agree with the reasons expressed.
Watts J
I would also make the orders that are proposed and I agree with the reasons given by Murphy and Kent JJ.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Murphy, Kent & Watts JJ) delivered on 21 March 2017
Associate:
Date: 24 March 2017
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