Brathwell & Brathwell
[2022] FedCFamC1A 166
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Brathwell & Brathwell [2022] FedCFamC1A 166
Appeal from: Brathwell & Brathwell [2022] FedCFamC2F 707;
Brathwell & Brathwell(No 2) [2022] FedCFamC2F 481
Appeal number(s): NAA 102 of 2022;
NAA 107 of 2022File number(s): BRC 7200 of 2015 Judgment of: TREE J Date of judgment: 10 October 2022 Catchwords: FAMILY LAW – APPEAL – DISMISSAL – Non-compliance – Where the appeal is listed for consideration of dismissal pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the appellant has not complied with orders to file appeal documents – Where the appellant has not sufficiently justified his delay – Where the appellant’s conduct to date has not facilitated the quick, inexpensive and efficient resolution of the appeals – Prejudice to the respondent – Appeals dismissed. Legislation: Disability Discrimination Act 1992 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 67, 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.45, 13.53
Cases cited: Bethke & Bethke (2019) FLC 93-906; [2019] FamCAFC 106 Number of paragraphs: 28 Date of hearing: 5 October 2022 Place: Cairns The First and Second Appellants: Self-represented litigant Counsel for the Respondent: Mr Balzamo Solicitor for the Respondent: Browns Lawyers Counsel for the Independent Children's Lawyer: Ms Murphy Solicitor for the Independent Children's Lawyer: Stewart Family Law ORDERS
NAA 102 of 2022;
NAA 107 of 2022
BRC 7200 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BRATHWELL
First Appellant
COMPANY C
Second Appellant
AND: MS BRATHWELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
TREE J
DATE OF ORDER:
10 october 2022
THE COURT ORDERED ON 5 OCTOBER 2022 THAT:
1.Appeal NAA 102 of 2022 is dismissed.
2.Appeal NAA 107 of 2022 is dismissed.
3.The respondent's oral application to extend time to file her schedule of costs is refused.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brathwell & Brathwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction
By Notices of Appeal filed 9 and 12 May 2022, the first appellant (“the appellant”) appeals against both final parenting and property settlement orders made following an undefended hearing which ensued because the appellant failed to file his trial material as ordered.
The appellant has now failed to comply with court orders to file some important appeal documents, namely Amended Notices of Appeal and Summaries of Argument. Consequently on the date the appeal was set for hearing, it was also listed to consider whether it should be dismissed because of those failures.
On 5 October 2022 I made orders dismissing both appeals, but reserved my reasons for doing so. These are those reasons.
background
It is useful to recite the primary judge’s reasons as to the history of the proceedings, and particularly why the trial proceeded before his Honour on an undefended basis:
2.The proceedings were commenced by the [appellant] on 27 July 2015. The matter progressed in the usual way until 15 February 2018 and on that occasion the [appellant] did not attend. On that occasion Her Honour Judge Cassidy stated that she would put a notation on the orders that if the [appellant] failed to attend on the next occasion, either in person or through a solicitor, or make an application for a litigation guardian the court may make orders in default of his appearance.
3.On 22 February 2018 the [appellant] once again failed to appear and Judge Cassidy once again listed the matter for default hearing noting that orders might be made in default if the [appellant] father failed to appear.
4.On 19 April 2018 the [appellant] appeared in person, however, the matter was adjourned as the [appellant] was unprepared to advance the matter and costs were reserved.
5.On 25 September 2019 the [appellant] was ordered to attend the [respondent’s] solicitor’s offices at a specific time to confer about disclosure and admitted facts and he failed to attend.
6.On 14 November 2019 trial directions were made providing that a consolidated trial affidavit be filed by 14 February 2020 and a case outline document filed by 10 March 2020. The [appellant] has not filed any document since that time that could be considered a trial affidavit or an outline of case.
7.The trial was set for 17 March 2020 and on that occasion the [appellant] did not attend although he was represented by Counsel who sought an adjournment on the basis that the [appellant] was unwell. The trial was relisted to commence on 3 August 2021, however, that trial did not proceed.
8.On 11 April 2022, the first day of trial, the [appellant] once again sought an adjournment as a result of his inability to file documents in accordance with orders of the court. Both the respondent and the independent children’s lawyer submitted that the matter should proceed by way of undefended hearing.
9.The [appellant] filed an affidavit on 13 November 2019 and on page 81 of that affidavit the [appellant] annexes a letter dated 7 November 2019 from [a doctor] setting out that the [appellant] suffers from, at that time, the following medical conditions:
…
10.That letter is the last time the [appellant] filed any material setting out his health conditions. He opposed the matter being dealt with by way of undefended hearing due to his medical conditions. He informed me from the bar table that his medical conditions had exacerbated, however, there is no evidence before the court that could satisfy me to make such a finding.
11.The [appellant] also submitted that the [respondent] had failed to comply with orders although he could not specify which orders on what date she had failed to comply with. The [appellant] blamed his previous lawyers for his inability to file documents as ordered by the court.
12.Furthermore, the [appellant] submitted that the orders made on 3 August 2021 and 25 September 2019 were made without his submissions or his consent. The orders reflect that the [appellant] was self-representing on 25 September 2019 and appeared by telephone and that he was represented by a [solicitor] on 3 August 2021.
The trial was heard by the primary judge on 11 April 2022 on an undefended basis, with final parenting orders being pronounced that day, and final property settlement orders on 13 April 2022.
The appellant filed a Notice of Appeal in relation to the parenting orders on 9 May 2022, and a Notice of Appeal in relation to the property orders on 12 May 2022. On 6 July 2022, the matter came before an appeals registrar, on which occasion procedural orders were made readying the appeal for hearing, which was listed for 5 October 2022. Under those orders, the appellant was to file Amended Notices of Appeal (as his original Notices of Appeal did not contain succinct, proper grounds) and Summaries of Argument, both by 5 August 2022. The appellant has failed to comply with those orders and no further documents have been filed by him since the original Notices of Appeal.
On 22 August 2022, the Court wrote to the appellant notifying him of his non-compliance, and alerted him to the prospect that on 5 October 2022, his appeals may be dismissed because of it. Notwithstanding the lapse of another six weeks, still nothing was filed by the appellant.
At the 5 October 2022 hearing, the appellant proposed that the time limited for the filing of his material be extended to 2 November 2022, with further consequential orders extending the time for subsequent steps in the appeal. He did not oppose an order that the appeals be dismissed if he failed to file his material within the specified time. The course the appellant proposed was opposed by both the respondent and the Independent Children's Lawyer, who sought that the appeals be dismissed instead.
discussion
The relevant rule pertaining to the dismissal of appeals is r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which provides:
(1) This rule applies if:
(a) an 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 Family Law Regulations; or
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or any other 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 the court will consider whether to make the order.
…
The principles pertaining to the relevant predecessor of that rule were discussed by the Full Court in Bethke & Bethke (2019) FLC 93-906 at [25]–[32] as follows:
25.In Jackamarra v Krakouer (1998) 195 CLR 516 at 528, Gummow & Hayne JJ said:
…when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. …
26.Applying the above principle, the Full Court in Connor & Cosgrove (2017) FLC 93‑769 (“Connor”) found at [25] that:
…All other things are not equal and it would represent an injustice to the mother to permit the appeal to continue in circumstances where the father would, in all likelihood, not file a summary of argument for at least a further three months…
27.In Connor, the Full Court cited (at [17]), with approval, McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
28.Though that case was concerned with time limits for commencing proceedings, the Full Court in Connor stated at [17] that it “nonetheless resonates on the question of delay and justice”.
29. Similarly, s 97(3) of the Act states:
In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.
30.Rule 1.04 expresses that the main purpose of the 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”. Further, r 1.08 imposes a responsibility on all parties to “promote and achieve the main purpose” of the Rules by inter alia “ensuring readiness for court events” (r 1.08(c)), “complying with time limits” and “assisting the just, timely and cost-effective disposal of cases” (r 1.08 (e) and (g)).
31.As discussed by the Full Court in Connor at [19], r 22.45 of the Rules is mirrored in r 21(2)(b) of the Court Procedure Rules 2006 (ACT), considered by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 where it was said, at [92], per Gummow, Hayne, Crennan, Kiefel & Bell JJ:
The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: “Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation”.
(Footnotes omitted)
32.Even allowing for the incarceration of the appellant, he has been given multiple opportunities to prosecute his appeal but has not. He has not filed an Amended Notice of Appeal joining his Trustees as directed by the Registrar since April 2018 (over ten months). Given the procedural history of this matter, the appellant has offered no adequate explanation for his failure to prosecute his appeal.
The explanation proffered by the appellant for his non-compliance with pertinent aspects of the 6 July 2022 orders wavered between him not having received a response to his application for legal aid funding, and that his health issues precluded him from being able to attend to the necessary tasks.
As to the former, although the judgments were delivered in April 2022, and Notices of Appeal filed in May, the appellant told me he had not applied for legal aid until July. He proffered no explanation for that delay. More, there was no explanation of the ensuing apparent delay in processing that application, although in submissions the appellant told me he had only that day received notification that his application had been referred to a senior person at Legal Aid for consideration. Significantly the likely fate of his application was not disclosed.
As to the latter, whatever health issues may beset the appellant, they did not preclude him from drafting the two Notices of Appeal, the first running to 18 prolix grounds spanning three closely typed pages, and the second containing no less than 27 different, but equally prolix grounds, extending to five closely typed pages. Moreover both documents were able to be prepared and filed within the relevant time limits.
I am not satisfied that the appellant has adequately explained, or perhaps more properly, sufficiently justified, his delay.
Although initially the appellant appeared to be pressing for an open-ended extension of time to file the relevant material, when the unlikelihood of that was pointed out to him, he pressed for a period of four weeks being afforded to him. I could discern no logical basis for the selection of that period, other than the prospect that it may have found favour with me. However given that the appellant has not yet received a grant of legal aid, even if it were forthcoming, the chances of solicitors being appointed, and drafting two Amended Notices of Appeal and two Summaries of Argument in that time seems utterly remote. If legal aid were refused, the prospect of the appellant doing so is even less, and even if he did, the material is very likely to be deficient and only prompt further debate.
Rather, as I explored with the parties, it seems most likely that some further application to extend time would inevitably be forthcoming, something which a self-executing order, as contemplated by r 13.45(2)(a)(ii), could not preclude. In other words, I assess the appellant’s date of 2 November 2022 for the further filing as very unlikely – if not impossible – to be complied with, and almost inevitably would lead to more applications and further delay.
It is not as though either appeal patently enjoys merit. As but examples, Ground 3 of the 9 May 2022 Notice of Appeal, and Ground 2 of the 12 May 2022 Notice of Appeal, both challenge the primary judge’s refusal of an adjournment of respectively the parenting and property trials, however such challenges are expressly prohibited by s 26(2)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”). Some grounds assert breaches of the Disability Discrimination Act 1992 (Cth), which obviously will fail, and others contain insufficient specificity to enable any proper understanding of them, and hence any assessment of their prospects of success.
Rule 13.45 is a family law practice and procedure provision as that term is defined in s 67(4) of the Act. It follows that ss 67(1)-(3) of the Act are engaged here. They provide:
67 Overarching purpose of family law practice and procedure provisions
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
…
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(Emphasis added)
Further, s 68(1) of the Act provides:
68 Parties to act consistently with the overarching purpose
(1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
Plainly the appellant’s conduct to date has not facilitated the quick, inexpensive and efficient resolution of the appeals. In my view, his unrealistic proposal to extend the time for filing of his further material to 2 November 2022 is unlikely to do so either, as it is likely to only lead to further expense and delay. I am fortified in that conclusion by the inordinate delay which attended the proceedings between 2015 and 2022, as I have referred to earlier. Whilst I cannot conclude that the appellant’s conduct has been, or now is, deliberately intended to cause delay, I am suspicious of that, and even if it not be so intended, what he now proposes will nigh inevitably see that result ensue in any event.
Moreover there is prejudice to the respondent by virtue of delay. Particularly the property orders have, it seems, not yet resulted in the sale of the former matrimonial home, much less any division of the proceeds to the respondent, which I was told will likely see enforcement proceedings shortly commenced.
Additionally, uncertainty around the finality of the parenting orders is likely to be of no assistance to the children or the respondent.
In my view, the appropriate response to the particular facts raised in these cases was to dismiss the appeals, and hence I made the orders which I did on 5 October 2022.
costs
Rule 13.53(2) requires any party who intends to seek costs at the conclusion of the hearing of an appeal to, no later than seven days before (in this case) the hearing of the appeal, file and serve a schedule of the costs to be sought, at the scale prescribed by the Rules.
Order 20 of the orders made by an appeals registrar on 6 July 2022 required that schedule to be prepared on a party/party basis.
On 4 October 2022 the respondent unsuccessfully sought to file a schedule of costs, and before me orally sought on extension of time in which to do so. However as I pointed out to counsel for the respondent, the schedule contained patently insufficient itemisation of costs, and such detail as it did contain suggested that at least some of the costs claimed were not properly party/party costs.
No explanation for the delay in the preparation of the schedule was advanced, nor is one apparent. The appellant claimed not to have received the schedule. If true, that only aggravates the respondent’s delay; even if untrue, it is unlikely he would have had sufficient time to properly consider it.
In all the circumstances, I was of the view that time should not be extended for the filing of the schedule.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 10 October 2022
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