Burnett and Green - [2008] FamCAFC 160

FAMILY COURT OF AUSTRALIA

BURNETT & GREEN

[2008] FamCAFC 160

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Application by the appellant for reinstatement of an appeal – Where appeal deemed abandoned because appeal books filed did not comply with the Family Law Rules 2004 (Cth) or previous orders – appeal reinstated – Family Court of Australia Registry to prepare appeal books.

Family Law Rules 2004 (Cth), Rules 22.24, 22.56, 22.57(2)

APPLICANT:

Mr Burnett

RESPONDENT:

Ms Green

FILE NUMBER:	MLF	1980	of	2006
APPEAL NUMBER:	SA	105	of	2007

DATE DELIVERED:

8 October 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Finn, May and Boland JJ

HEARING DATE:

8 October 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 November 2007

LOWER COURT MNC:

[2007] FamCA 1343

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Devries

SOLICITOR FOR THE RESPONDENT:

Kerr and Thomas Lawyers

Orders

That the appeal be reinstated.
That on or before 30 November 2008 the Registry Manager of the Melbourne Registry arrange for production of seven (7) copies of the Appeal Book (and if the Independent Children’s Lawyer proposes to participate in the appeal, eight (8) copies) and provide the solicitor for the respondent with two of those copies, the appellant with one copy and, if required, the Independent Children’s Lawyer with one copy (and retaining four copies for the Court); such Appeal Book is to contain all documents listed in the orders made by Registrar Marrone on 30 January 2008 except for the Transcript and Exhibits, but with the exhibits to be available in the courtroom during the hearing of the appeal.
That all copies of the existing Appeal Book filed by the appellant on 26 February 2008 be retained and marked by the Registry Manager as “Contentious Appeal Book, including documents which the appellant may ask the Full Court to receive as further evidence in the Appeal”, with copies of such Book to be provided to the Judges hearing the appeal, the solicitor for the respondent mother, and, if required, the Independent Children’s Lawyer.
That the document provided by the appellant to the Court today and marked “Exhibit 1” be considered as the appellant’s summary of argument for purposes of the appeal and that there be no need for the appellant to file a further summary of argument.
That if the respondent and Independent Children’s Lawyer wish to do so, they may file and serve on all other parties summaries of argument in response to the appellant’s summary of argument by 31 January 2009.
That the Appeal Registrar list the appeal for hearing in the first available Full Court sitting in Melbourne in 2009 and, if at all possible, the listing date be early in the sitting week.
That the costs of and incidental to these proceedings be reserved to the Full Court.

IT IS NOTED that the Court has today advised the appellant that it is in his interests to obtain (and file and serve) the transcript of the trial before the Honourable Justice Murphy and that his appeal may well not succeed because of the lack of such transcript.

IT IS NOTED that at the conclusion of the proceedings today the court officer will provide a copy of the appellant’s summary of argument to counsel for the respondent.

IT IS NOTED that publication of this judgment under the pseudonym Burnett & Green is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 105 of 2007
File Number: MLC 1980 of 2006

MR BURNETT

Applicant

And

MS GREEN

Respondent

REASONS FOR JUDGMENT

FINN J:

On 28 November 2007 the appellant filed a Notice of Appeal against orders made by Murphy J on 16 November 2007. Subsequently on 30 January 2008 Appeal Registrar Marrone made what could be termed the standard directions for the preparation and the contents of the appeal book. Included in those directions was a direction that the appellant be responsible for the preparation of the appeal book.
On or about 26 February 2008 the appellant forwarded to the Registry seven volumes of an appeal book.
On 26 March 2008 the Appeal Registrar wrote to the appellant (with a copy to the solicitors for the respondent and also the independent children's lawyer) explaining that there were difficulties with the books in that they did not comply with the Family Law Rules 2004 (Cth) (“the Rules”) or with the orders made on 30 January 2008.
The Registrar also advised in that letter that unless the books were either amended or new books filed which complied with the Rules and the previous orders made, the appeal would be deemed abandoned on 17 April 2008.
From what we have been told this morning by the appellant, it would seem at some point there were communications between himself and the Registry Manager concerning the alleged defects in the books.
But however that may be, on 24 April 2008 the Appeal Registrar wrote again to the appellant (with copies to the solicitors for the respondent and the independent children's lawyer) referring to her letter of 26 March and also to the orders made on 30 January and saying that the books delivered on 26 February had not been amended to comply with the orders and that the appeal accordingly was deemed abandoned pursuant to rule 22.56 of the Rules.
Subsequently on 19 May 2008, the appellant filed an application seeking reinstatement of the appeal. That application was accompanied by an affidavit.
It is that application by the appellant for the reinstatement of his appeal that has come before this Full Court this morning.
As indicated earlier, the appellant informed us this morning that there had been some correspondence between himself and the Registry Manager and his understanding was that the books which he had endeavoured to file at the end of February were in order save for a failure to number documents rather than identify them by colour code.
We have before us copies of the books which were filed at the end of February. It seems to us that the books do not comply in a number of respects with the orders made for their contents on 30 January this year, and also that they contain some material which was not provided for in those orders.
When this matter commenced this morning, I raised, as presiding judge, with both the appellant, who appears today on his own behalf, and counsel appearing for the respondent, the possibility of this court making an order under rule 22.24 of the Rules, which permits the court to order that the Registry be responsible for the preparation of the appeal books.
It seemed to me, and I understand my colleagues to agree with me on this point, that given the complications that have arisen because of the advice which the appellant understands he received from the Registry Manager, that it would be certainly appropriate in these circumstances to require the Registry to prepare appeal books in the form ordered on 30 January this year.
It does seem to me in proposing this course that it is within the spirit of the matters mentioned in sub-rule 22.57(2), being the matters to which the court should have regard in determining whether an appeal taken to be abandoned should be reinstated.
However, I have stressed (during this morning’s proceedings) and I reiterate now, that it is not possible for this court, at least at this stage, to require that the Registry obtain copies of the transcript of the trial before Murphy J, which led to the making of the orders which are the subject of the appellant's appeal.
As I have said in discussion this morning with both the appellant and with Mr Devries of counsel who appears on behalf of the respondent, the provision of transcript is unfortunately becoming an increasing problem for appellants because of the costs associated with it. As a consequence we are seeing more and more appeals in which appellants are not able to provide transcript and the appeal has to go forward to be heard by the Full Court, at least in the first instance, without transcript.
The court can do no more (in advance of an appeal being heard) than warn an appellant that in the absence of transcript his or her appeal may have little chance of success. That would be particularly so in this case given the complaints, as I understand them at this stage, of the appellant regarding the course of the trial before Murphy J.
Mr Devries, appearing on behalf of the respondent has opposed, with some vigour, the reinstatement of the appeal. He has relied on the expense and the stress caused to the respondent and, he says, indirectly to the children (who are the subject of the orders). Again, as I have said to him, the court appreciates the stress that any respondent to an appeal, particularly one involving parenting orders, must feel – both the emotional stress and the stress in terms of time and cost. But be that as it may, the Family Law Act1975 (Cth) provides that an appellant may bring an appeal as of right against parenting orders and the court cannot prevent that being done.
The Rules provide a course which in this instance could be adopted by us in an endeavour to bring this appeal to a hearing on its merits, which is the most satisfactory course for all concerned – although such an appeal is likely to have some limitations because of the appellant’s claim that he cannot afford to provide the transcript, but that is as it is.
The Full Court before which the appeal is listed for hearing will have to do its best on the basis of such written material as was before the trial judge and also on the basis of his judgment. As I have said in the course of this morning, in extraordinary circumstances a Full Court can (at the hearing of the appeal) order the preparation of some or all of the transcript if the Full Court decides it should do so in light of what emerges at the hearing of the appeal; but that is a matter for that Full Court. No doubt the Full Court would endeavour to make such directions as would be necessary to try to limit the further expense and inconvenience which would be caused to the other side by the delay (required to obtain the transcript).
Again, as I have said, in the course of discussion this morning, it is, in my view, to the benefit of both parties that this appeal be re-instated and permitted to proceed and be determined on its merits as quickly as possible.
I add in connection with the orders that I propose, which I will announce shortly, that it seems clear that the appellant would want to put before the court material that either was not before Murphy J, or which the appellant may have tried to have put before Murphy J unsuccessfully. I am here referring to some material in the appeal books (which were filed at the end of February) being material that is not immediately identifiable as material listed in the orders made on 30 January this year for the contents of the appeal book.
The convenient course would seem, in these circumstances, to be that the Registry retain all copies of that original appeal book and that that appeal book also then be before the Full Court so that at the hearing of the appeal the appellant can draw to the Full Court's attention any material in that book to which he would wish the court to have regard. We find from time to time that when making directions for preparation of an appeal, there is what we call contentious material and therefore we provide for what we call a contentious appeal book. It seems again the most efficient course that those books which have already been filed, be kept by the Registry (with a copy being provided by the Registry to the respondent’s side) and then be provided to the Full Court to form what we call a contentious appeal book.
I appreciate that the contentious appeal book may have within it some things (such as the Notice of Appeal) which will also be in the new book (to be prepared by the Registry), but I think it is simplest to keep the contentious appeal book in its existing form so that the appellant at the hearing of the appeal will be able to say to the Bench, “I want you to look at what appears under tab blue”.
The other matter which we will provide for in our orders is a summary of argument. That is usual under the Rules. We will provide a time limit for the appellant to do a written argument. It does not have to be very long, I think the limit is about 10 pages. We will also provide that the respondent, if they so elect, may also provide a written response. It will be a matter for you, Mr Devries, or those instructing you, as to whether you consider it necessary, or you may consider that you will be able to respond on your feet, depending what appears in the appellant’s outline of argument.
Knowing what I know about further sittings for the Full Court in Melbourne and the number of matters already listed, it would seem that this appeal would be unlikely to be listed until probably April or May next year. It may be earlier. But against that timeframe and bearing in mind we have the Christmas period and the Registry has other work to do in addition to preparing appeal books, I propose that the registry have until 30 November, that is, a little under two months, to prepare the books and serve them. The Registry can send the books to the respondent’s solicitors. With the Christmas period intervening, it seems sensible to give the appellant until 31 January to put a written argument together, then to give Mr Devries, or those instructing him, until the end of February to do any outline they may wish to. The appeal then, hopefully, would be ready to be listed at the next available sittings.

[FURTHER SUBMISSIONS]

So Order 1 would be that the appeal filed by the appellant on 28 November 2007 be reinstated. Order 2, that by 30 November 2008 the Registry Manager of the Melbourne Registry arrange for the production of seven copies of the appeal book, and provide two copies to the respondent’s solicitor, one copy to the appellant, and one additional copy if required to the independent children’s lawyer; such appeal book to contain all documents listed in the orders made by the appeals registrar on 30 January 2007, except for the transcript and the exhibits, with the exhibits to be available in the courtroom at the hearing of the appeal.
Order 3, that the existing appeal book filed by the appellant on 26 February 2008, be retained, and be marked as the contentious appeal book, copies of such books to be provided to the Full Court hearing the appeal and also to the solicitors for the respondent and to the independent children’s lawyer.
Further order, that the document provided by the appellant to the court today and marked Exhibit 1 be regarded as the appellant's summary of argument for purposes of the appeal, with there being no necessity for the appellant to file any further summary of argument. I note in connection with that order, that at the conclusion of this morning’s proceedings the court officer will provide a copy of that document to counsel for the respondent.
That by 31 January 2009, the respondent and the independent children’s lawyer if they so wish file and serve responding summaries of argument. That the Appeal Registrar list the appeal for hearing at the first available sittings of the Full Court in Melbourne in 2009. I say “first available”. We have not set the calendar for next year yet.

[FURTHER SUBMISSIONS]

I will amend that order I previously made, where I referred to that book I called the contentious appeal book, and I will add a notation, “Including documents that the appellant may wish to ask the Full Court to receive by way of further evidence.” It is not unusual for appellants to come with other material, and ask the Full Court to receive it. Sometimes the Full Court will say that it can receive such material because it is something that was before the trial judge. Other times the Full Court will say that the material is in the category of further evidence. They will explain what the rules basically are about further evidence, and they will decide one way or another whether they will accept it.

[FURTHER SUBMISSIONS]

But this reminds me, I need to add a notation to my orders, to expand on something I said in the reasons, being that the court has today advised the appellant that it is in his interests to obtain transcript, and his appeal may well not succeed on account of lack of transcript. That is not a threat, it is just the reality.

[FURTHER SUBMISSIONS]

Thank you. Yes, and my colleagues have reminded me that they have not on the transcript agreed with my reasons and the orders I propose.

MAY J:

I also would allow the appeal to be reinstated for the reasons given by the presiding judge, Finn J. I would make the same orders as described by Finn J.

BOLAND J:

I also agree that the appeal should be reinstated, and I agree with both the reasons and orders of the presiding judge, Finn J.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 24 October 2008