Bligh & Trott (No 2)
[2020] FamCAFC 237
•22 September 2020
FAMILY COURT OF AUSTRALIA
| BLIGH & TROTT (NO 2) | [2020] FamCAFC 237 |
| FAMILY LAW – APPEAL – DISMISSAL – Where the appellant father’s appeal is listed for consideration of dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the father has not complied with a procedural order to file a Summary of Argument – Where the father has been on notice since December 2019 that his appeal may be listed for dismissal – Where the preconditions of the application of r 22.45 of the Family Law Rules 2004 (Cth) are satisfied – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent mother seeks her costs of and incidental to the appeal and of and incidental to the father’s unsuccessful application to adjourn this hearing fixed on a party/party basis – Where the Independent Children’s Lawyer does not seek costs – Costs ordered as sought by the respondent. |
| Family Law Rules 2004 (Cth) r 22.45 |
| Bligh & Trott [2019] FamCA 414 Bligh & Trott [2020] FamCAFC 234 |
| APPELLANT: | Mr Bligh |
| RESPONDENT: | Ms Trott |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 2766 | of | 2015 |
| APPEAL NUMBER: | NOA | 69 | of | 2019 |
| DATE DELIVERED: | 22 September 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane (via telephone link) |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Watts JJ |
| HEARING DATE: | 22 September 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT ORDER DATE: | 24 June 2019 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR ADVOCATE FOR THE RESPONDENT: | Mr Evans |
| SOLICITOR FOR THE RESPONDENT: | Evans Brandon Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders made on 22 September 2020
The father’s oral application for adjournment be dismissed.
The Notice of Appeal filed on 22 July 2019 be dismissed.
The father pay the mother’s costs of and incidental to the appeal, and of and incidental to the father’s application for an adjournment of this hearing heard and determined on 17 September 2020, fixed in the total sum of TWO THOUSAND TWO HUNDRED AND NINETY DOLLARS AND THIRTY FOUR CENTS [$2,290.34].
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 Bligh & Trott (No 2) 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 BRISBANE |
Appeal Number: NOA 69 of 2019
File Number: BRC 2766 of 2015
| Mr Bligh |
Appellant
And
| Ms Trott |
Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Strickland J
Introduction
This appeal is listed for consideration of its dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”) for the failure by the appellant, Mr Bligh (“the father”) to file a Summary of Argument in accordance with procedural orders made on 30 September 2019.
The father has appeared today, as has Mr Evans for Ms Trott (“the mother”) and Ms McArdle for the Independent Children’s Lawyer (“ICL”).
The father has, in effect, made a further application to adjourn the hearing of his appeal. He says that he will be in a position to comply with the order for the filing of a Summary of Argument in about a month or so, after certain events have taken place which he says will allow him to attend to that.
That application is opposed by the mother and the ICL.
I refer to this application as a further application because there was an application made by the father for the adjournment of this hearing, which was heard and determined on 17 September 2020. That application was dismissed.
In my view there is no further basis provided by the father today for the hearing of his appeal to be adjourned, and I would dismiss that oral application.
I understand that the father has now left the hearing. I will continue.
The appeal arises from procedural orders made by Forrest J on 24 June 2019 in relation to the father’s application to review a Registrar’s decision as follows:
1.That paragraph 3 of the Orders of Registrar Coutts of 13 June 2019 be stayed until further Order of this Court [This order permitted the father and the mother’s solicitor to inspect subpoenaed documents from the Queensland Police Service and the Office of the Director of Public Prosecutions].
2.That the decision on the disposition of the application being considered today be reserved for further consideration after receipt of the written submissions posted by [the father] to the Court on Friday, 21 June 2019.
3.That should such written submissions posted by [the father] to the Court on Friday, 21 June 2019 not be received by the Court by close of business on Wednesday, 3 July 2019, the Judge shall proceed to disposition of the application heard today in any event.
(Emphasis in original)
These orders are the subject of this appeal, namely Appeal No. NOA 69 of 2019.
On 3 July 2019, the primary judge made further orders in relation to the review application, as follows:
1.That the Order made by his Honour Justice Forrest on 24 June 2019 staying paragraph 3 of the Orders of Registrar Coutts made 13 June 2019, is discharged.
2.That the applications of the father contained in the Application in a Case filed by him on 19 June 2019, are dismissed.
3.That the father… shall pay the mother’s costs of and incidental to the dismissed Application in a Case fixed in the sum of $583.48.
4.That a Gaol Order issue requiring the Keeper of the W Correctional Centre in the State of Queensland, all members of the Police Forces of all the States and Territories of the Commonwealth of Australia and all members of the Australian Federal Police to be authorised to bring [the father], a person now in custody of the said Gaol, before the Family Court of Australia at Brisbane, Commonwealth Law Courts, Cnr North Quay and Tank Streets at a time and on a date to be fixed by arrangement between the Court, the Keeper of the W Correctional Centre and the said [father] for the purposes of the said [father] being able to inspect the Court’s file and documents produced under subpoena in this matter and the said [father] remain in the custody of the Officers Local Keepers and members of the Police Forces acting under this Order until the said [father] is in due course returned to the said Gaol.
5.That this order shall be deemed to be “a Notice from a Court” within the meaning of s 69(4)(d) of the Corrective Services Act 2006 (Qld) (“CSA”).
…
Those orders were also appealed from, and were the subject of Appeal No. NOA 68 of 2019, however that appeal was deemed abandoned on 19 December 2019, after the father failed to file the transcript. No application for reinstatement has been made of that appeal.
The mother opposes the appeal and seeks its dismissal. The ICL has not filed any material, but we are told today that the ICL also opposes the appeal and seeks its dismissal. I should indicate that those submissions are not only based on the failure of the father to comply with the order for the filing of a Summary of Argument, but also on the basis that the appeal has no merit. I hasten to add that although I too hold the view that the appeal is devoid of merit, the issue today is whether the appeal should be dismissed for non-compliance with the relevant order pursuant to r 22.45 of the Rules.
Background
This matter involves longstanding parenting proceedings between the parties.
In January 2019, the ICL issued subpoenae in those proceedings to the Queensland Police Service and the Director of Public Prosecutions in relation to the father, and those subpoenae were duly answered.
On 11 February 2019, the father filed Notices of Objections to releasing the subpoenaed material. The father believed that the mother’s solicitor had previously released privileged court documents and given them to the media (see Bligh & Trott [2019] FamCA 414 at [23]–[24]).
On 13 June 2019, Registrar Coutts made procedural orders in relation to the subpoenae, relevantly:
…
3.That no earlier than 24 June 2019, the legal representative for the Mother and the Father have leave to inspect only:
i. the documents produced under subpoena directed to Queensland Police Service (Serial #...) and Director of Public Prosecutions (Serial #...) and
ii. the Federal Circuit Court record, … .
4.The Notices of Objections to Subpoena to produce documents filed by the Father are otherwise dismissed.
…
(Emphasis in original)
On 19 June 2019, the father filed an Application in a Case seeking to review the Registrar’s orders made on 13 June 2019, and that they be stayed pending further hearing before a judge. It seems that the father made his intention to review the Registrar’s orders known at the hearing and thus, the Registrar specified a not before date in paragraph 3 to give the father time to make an application to review the orders.
At this time, the father was incarcerated in a Queensland prison awaiting trial on various charges which included stalking the mother, breach of family violence orders, and breach of bail.
In December 2019, the father advised the Appeal Registry that he was being held in an Immigration Detention Centre pending deportation to Country Y. In recent correspondence from the father, he advised the Appeal Registrar that he was no longer being detained and indeed that was confirmed today by the father.
The review application was listed before Forrest J urgently on 24 June 2019, with the parties appearing by telephone (the father, of course, appearing from prison). The father did not file any affidavit in support of his Application in a Case, but at the hearing, the father told the Court that he had lodged a written outline of submissions with prison authorities on 21 June 2019, to be posted to the Court, and that was the “evidence” he was relying upon in support of his application.
The primary judge explained to the father that he would hear each party’s submissions on the application orally at the hearing, then wait to receive the father’s written submissions by no later than 3 July 2019, after which his Honour’s judgment would be reserved for determination.
The father was opposed to this course, but the primary judge proceeded on this basis.
The primary judge heard the father’s submissions for about an hour in total on 24 June 2019. The primary judge then requested that the solicitor for the mother read out her written submissions orally for the benefit of the father, who said he had not received the mother’s written submissions provided to the Court.
It is apparent that the father was still not happy with this course, and he maintained the submission that he was not being provided with a fair hearing in those circumstances.
The primary judge proceeded to make the orders on 24 June 2019, which are the subject of this appeal. The reasons for those orders are contained in the transcript of the hearing on 24 June 2019.
The father’s written submissions were received by the Court on 28 June 2019 and brought to the attention of the primary judge. The primary judge found in his reasons for judgment delivered on 3 July 2019, that the written submissions reflect many, if not all, of the matters raised by the father at the hearing on 24 June 2019 (at [17]–[18]).
On 2 July 2019, the Court received a further document sent by the father titled “Outline of Further Submissions by the Applicant”. The primary judge noted that that document contained many of the same submissions as the first outline, however it also included submissions about the hearing on 24 June 2019, and the father’s assertions of where the primary judge failed to ensure the father was provided with a fair hearing (at [19]).
On 3 July 2019, the primary judge proceeded to determine the father’s application and delivered reasons and made orders on that day (see above at [10]).
The appeal
The father filed his Notice of Appeal on 22 July 2019, seeking leave to appeal, and in the event that leave was granted, to appeal the orders made on 24 June 2019.
The sole basis for the application for leave to appeal is “[t]he hearing did not meet the fair hearing provisions of the International Convention on Civil and Political Rights, article 14, and therefore the orders are unlawful” (As per the original).
The two grounds of appeal are as follows:
1.The [father] has not received a fair hearing. On reading case authorities such as Tomasevic v Travaglini & Anor [2007] VSC 337, and reading Human Rights Committee, Ninetieth session, Geneva, 9 to 27 July 2007, CCPR/C/GC/32 21 August 2007, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial; the [father] discovered that the reason his treatment by the court has been so disparate is because he has not been provided the fundamental requirements of a fair hearing.
2.Given these unfair hearings have placed his children's safety in peril danger. The [father] requests relief from the [appellate] court. That will enable him to report the abduction of his child… and the years of neglect that [the child] has suffered, and restore contact with his son.
(As per the original)
The orders sought in the appeal are as follows:
1.Orders equivalent to the writ of Certiorari.
And an “[u]rgent [i]nterlocutory” order as follows:
1.The orders of the 24th of June, 2019, in the Judgement [sic] of Justice Forrest, be stayed, until further hearing.
(As per the original)
Dismissal for non-compliance
Pursuant to the Appeal Registrar’s procedural orders made on 30 September 2019, the father was to file a Summary of Argument by no later than 29 November 2019. The father has failed to comply with that order, and I will return shortly to the submissions the father has made today as to why that is the case.
On 18 December 2019, the mother filed her Summary of Argument in accordance with the procedural orders.
On 19 December 2019, the Appeal Registrar wrote to the father by post to the correctional centre he was in at the time, advising of his non-compliance with the order to file a Summary of Argument, and giving notice pursuant to r 22.45 of the Rules that his appeal may be listed for dismissal.
On 25 June 2020, the Appeal Registrar wrote to the parties by email advising that the father had not rectified his non-compliance, and as such, the appeal was listed for dismissal before this Court on 28 July 2020 at 9.30 am.
On 26 June 2020, and again on 7 July 2020, the father advised the Appeal Registrar by email that he would not be able to attend the appeal hearing on 28 July 2020, due to him having to appear in his criminal trial at that time, and requested an adjournment. By this time, the father was no longer being detained and had been communicating with the Court by his personal email.
Without opposition from the mother or the ICL, the Full Court acceded to the father’s request, and an order was made by the Appeal Registrar in chambers adjourning the matter to today’s date, 22 September 2020. In that order, a notation was included indicating that the appeal was listed to 22 September 2020 for consideration of its dismissal pursuant to r 22.45 of the Rules.
Apparently, for reasons unknown, the father’s criminal trial which was said to be listed in July 2020, then did not proceed.
On 27 August 2020, the Appeal Registrar again wrote to the parties confirming that the appeal was listed on 22 September 2020, for consideration of its dismissal due to non-compliance by the father with the order providing for the filing of his Summary of Argument. It is evident that the father received that correspondence, because he replied to the Appeal Registrar’s email asking for the Registrar to seek an adjournment, and indicating that he had a “criminal trial directions” hearing on 22 September 2020. The Appeal Registrar responded to the father’s request by advising him to file an Application in an Appeal and an Affidavit, if he sought an adjournment. The father’s response to that was that his criminal charges take precedence, and that this Court should have checked the criminal court calendar. The father, of course, knew since 8 July 2020 when the matter was initially adjourned, that it was listed on 22 September 2020.
In any event, the Appeal Registrar then forwarded to the father the forms required to seek an adjournment, and on 11 September 2020, the father filed the Application and supporting Affidavit. That was despite him, on 8 September 2020, sending an email to the Appeal Registry, indicating that he was “currently preparing for a serious criminal trial”, and he would “not be reading any correspondence until Monday the 12th of October”.
That Application was heard and determined on 17 September 2020, in the absence of the father, and was dismissed. I refer to the reasons for judgment delivered ex tempore by this Court on that day (see Bligh & Trott [2020] FamCAFC 234), which explain the father’s absence and the lead-up to the hearing of his own application.
Turning to the issue before this Court today, the relevant rule under consideration is r 22.45, and that rule specifically provides as follows:
22.45 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
…
(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.
As I have outlined earlier in these reasons, the father has failed to comply with the orders made on 30 September 2019, which required him to file and serve a Summary of Argument by 29 November 2019. As of today’s date, the father has not complied with that order, nor the Notice of non-compliance dated 19 December 2019, and I am satisfied that r 22.45(1)(b)(ii) and (iii) are engaged.
In submissions made today by the father, he claimed that he has not been able to comply with the order for the filing of a Summary of Argument because of him initially being detained in prison, and then in an Immigration Detention Centre. Since being released however, he says he has remained in Australia pursuant to a visa, which he claims does not permit him to work or study. Indeed, he says that under the terms of that visa he cannot, for example, even look at a law book in order to prepare his Summary of Argument. He says to do so would be a breach of his visa. He also says that he does not have the practical ability to prepare a Summary of Argument. For example, he claims he does not have access to a computer.
In relation to those submissions, the first point to be made is that there is no evidence whatsoever provided by the father as to the terms of his visa, for example, or any other evidence which would enable this Court to seriously consider whether his ability to prepare a Summary of Argument is prevented by either the terms of his visa, or his particular circumstances.
In relation to his claim that he does not have and has not had the practical ability to prepare a Summary of Argument, I note of course that he has engaged in a plethora of correspondence primarily by email with the Appeal Registrar, and with, certainly the mother’s solicitor, over recent times. To me, that indicates quite clearly that the father does in fact have the ability to prepare a Summary of Argument. And, with respect, I do not accept that a condition of the father’s visa would prevent him from looking at a law book, if that was necessary, for him to complete his Summary of Argument.
Thus, in short, I do not accept any of the reasons that the father has proffered as to why he has been unable to comply with the order made on 30 September 2019. As is noted, that is almost 12 months ago, and in that time there has been absolutely no attempt by the father to comply with that order.
In my view, the father has had ample opportunity to rectify the non-compliance, but he has simply failed to do so.
I am satisfied that the father has been provided with the requisite notice of the listing of his appeal today to consider its dismissal pursuant to r 22.45 of the Rules. The father has known since 8 July 2020, of this listing, and of course, he appeared today although, to repeat, he has now left the hearing.
In the circumstances, I would make an order dismissing the Notice of Appeal filed on 22 July 2019, pursuant to r 22.45 of the Rules.
Costs
The mother seeks an order that the father pay her costs of the appeal on a party/party basis fixed in the sum of $1,790.34, together with an amount of $500 being the costs in relation to the father’s application for an adjournment which was heard and determined on 17 September 2020.
I note that the ICL does not seek any costs.
In my view, there are ample circumstances demonstrated here that justify an order for costs being made. Thus, in addition to dismissing the Notice of Appeal, I would make an order for costs in the terms sought by the mother.
Ainslie-Wallace J
I agree with the orders proposed by Strickland J and the reasons for doing so.
Watts J
I also agree with the orders proposed by the presiding judge and his reasons.
Strickland J
The orders of the Court will be:
(1)The father’s oral application for adjournment be dismissed.
(2)The Notice of Appeal filed on 22 July 2019 be dismissed.
(3)The father pay the mother’s costs of and incidental to the appeal, and of and incidental to the father’s application for an adjournment of this hearing heard and determined on 17 September 2020, fixed in the total sum of TWO THOUSAND TWO HUNDRED AND NINETY DOLLARS AND THIRTY FOUR CENTS [$2,290.34].
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Watts JJ) delivered on 22 September 2020.
Associate:
Date: 24 September 2020
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