Biondi & Koen (No 2)
[2024] FedCFamC1A 131
•8 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Biondi & Koen (No 2) [2024] FedCFamC1A 131
Appeal from: Biondi & Koen (No 6) [2024] FedCFamC1F 294 Appeal number: NAA 135 of 2024 File number: MLC 2872 of 2017 Judgment of: AUSTIN J Date of judgment: 8 August 2024 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Adjournment – Where the appellant seeks an adjournment of the appeal hearing for not less than two months – Where the appellant has already been granted legal aid for counsel’s appearance at the appeal hearing – Where the appellant gave no evidence to suggest the adjournment will improve her circumstances – Where allowing the appeal to be adjourned would prejudice the respondent – Application refused – Procedural orders varied – Costs reserved to the Full Court. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32, 35 Number of paragraphs: 12 Date of hearing: 8 August 2024 Place: Newcastle (via video link) Counsel for the Appellant: Mr Devries Solicitor for the Appellant: MacGregor Solicitors Counsel for the Respondent: Ms Swann Solicitor for the Respondent: Lander & Rogers The Independent Children's Lawyer: Not participating in the appeal ORDERS
NAA 135 of 2024
MLC 2872 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BIONDI
Appellant
AND: MR KOEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
8 AUGUST 2024
THE COURT ORDERS THAT:
1.The time for compliance with Order 7 made on 10 July 2024 is extended until 14 August 2024.
2.The time for compliance with Order 8 made on 10 July 2024 is extended until 21 August 2024.
3.Otherwise, the Application in an Appeal filed on 5 August 2024 is dismissed.
4.The costs of the application are costs in the appellate cause.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Biondi & Koen (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal, which lies from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 6 May 2024, was filed on 3 June 2024.
On 10 July 2024, the appeal registrar listed the appeal for hearing before the Full Court on 27 August 2024, having foreshadowed fixing that hearing date in an email sent a week before, and made procedural orders to ensure documents were filed and served by the parties in readiness for the hearing. Relevantly, the procedural orders required the appellant to file and serve her Summary of Argument and List of Authorities by 5 August 2024.
The appellant did not file her Summary of Argument and List of Authorities on 5 August 2024. Instead, she filed an Application in an Appeal seeking an adjournment of the appeal hearing by not less than two months and concomitant orders pushing back the dates by which the parties must file and serve their Summaries of Argument and Lists of Authorities.
The appellant expressly requested that her application be determined on the papers in the parties’ absence, but that request was declined because no evidence was led by the appellant to establish whether the respondent consented to the application. Even if he had, the application might still not have been granted. The application was promptly listed for hearing before a single judge on Thursday 8 August 2024 and, as it transpired, the respondent opposed the application.
The adjournment application can be heard and determined by a single judge (ss 32(3)(c) and 32(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
The appellant relied upon the affidavit filed by her solicitor on 5 August 2024 in support of the application. The only reason advanced for why the adjournment should be granted is that, despite her solicitor’s efforts, she has not yet succeeded in briefing counsel for the hearing. Apparently, the appellant’s grant of legal aid to prosecute the appeal only covers an appearance fee for counsel and does not extend to any preparation by counsel. Presumably, such limitation upon the grant of legal aid is inextricably linked to the difficulty in briefing counsel.
Surprisingly, the appellant was represented by counsel on the adjournment application by way of legal aid retainer, but counsel asserted he did not expect to be briefed to appear at the appeal, but afforded no explanation as to why that was so.
The appellant’s counsel responsibly confirmed that since his instructing solicitor’s affidavit was filed, the State legal aid agency have confirmed an extension of the appellant’s grant of legal aid to cover 10 hours of preparation work by any counsel briefed by her for the appeal.
The problem for the appellant is that there is no evidence to suggest that the reprieve of an adjournment will ensure any improvement in her circumstances. The terms of her grant of legal aid are unlikely to now change and if, despite best efforts so far, she has been unable to brief counsel in the two months the appeal has already been on foot, it is doubtful she will have much more success within the next two months. If her chances of doing so would be better, then it only tends to raise doubts about the diligence of her efforts to date.
The respondent unsuccessfully made an application for the appellant to pay money to him as security for his costs incurred in the appeal, which application was dismissed by the appeal registrar on 31 July 2024. He is understandably keen for the appeal to be resolved and wants to retain the hearing on 27 August 2024. Allowing the appeal to be adjourned for at least two months would be prejudicial to him, as delaying the resolution of the appeal will be vexing and will likely cost him extra money with his lawyers.
The adjournment application is refused. However, an adjustment will now need to be made to the procedural orders to ensure the readiness of the appeal for hearing. The appellant is given until next Wednesday 14 August 2024 to file and serve her Summary of Argument and List of Authorities. The respondent will be given until Wednesday 21 August 2024.
The respondent sought his costs of the adjournment application, but costs are refused as an isolated issue. The costs of this application will be costs in the appellate cause, determined in due course by the Full Court.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 8 August 2024
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