Butler & Gibson
[2021] FamCAFC 8
•5 February 2021
FAMILY COURT OF AUSTRALIA
Butler & Gibson [2021] FamCAFC 8
Appeal from: Gibson & Butler [2020] FCCA 2770 Appeal number(s): EAA 134 of 2020 File number(s): CAC 48 of 2019 Judgment of: ALDRIDGE J Date of judgment: 5 February 2021 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – Appeal from interim parenting orders – Appellant failed to file Summary of Argument – Appellant failed to appear at hearing of summary dismissal application – Grounds of appeal too broad to make sense without a Summary of Argument – Any extension of time would deprive respondent of the opportunity properly to prepare for the appeal – Appeal dismissed. Legislation: Family Law Rules 2004 (Cth) r 22.45 Division: Appeal Division Number of paragraphs: 17 Date of hearing: 5 February 2021 Place: Sydney (via video link) The Applicant: Self-represented litigant The Respondent: No appearance Counsel for the Independent Children’s Lawyer: Ms Sproston Solicitor for the Independent Children’s Lawyer: Mark MacDiarmid Family Law Specialist ORDERS
EAA 134 of 2020
CAC 48 of 2019APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS GIBSON
Applicant
AND: MR BUTLER
Respondent
MARK MACDIARMID FAMILY LAW SPECIALIST
Independent Children’s Lawyer
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
5 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Butler & Gibson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
By way of an Application in an Appeal filed on 13 January 2021, Ms Gibson seeks summary dismissal of this appeal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”). This is because the appellant, Mr Butler, has failed to file a Summary of Argument as ordered by the Appeal Registrar.
The orders appealed from are interim parenting orders that were made a judge of the Federal Circuit Court of Australia on 4 September 2020. The proceedings are back before the primary judge again on 13 April 2021.
A Notice of Appeal was filed by Mr Butler on 24 September 2020. Directions preparing the appeal for hearing were made by the Appeal Registrar on 17 November 2020. Included amongst those orders, was an order that Mr Butler file a Summary of Argument and List of Authorities on or before 21 December 2020. Nothing has been filed to date.
I am satisfied that Mr Butler is aware of the proceedings today. An email was sent to the email address provided by him on 3 February 2021 advising him, as well as the other party and the Independent Children’s Lawyer, that Ms Gibson’s application would be heard today at 10.00 am.
Attempts have been made on at least two occasions to contact Mr Butler for the purpose of this hearing but he has not been able to be contacted.
I have just been handed an email from the assistant to the Appeal Registrar indicating that an email was sent at 10.13 am today by Mr Butler to the Eastern Appeals Registry that simply consists of a subject line, without any other text in the email. The two words in the subject line are “Panic attack”. I infer from that that Mr Butler is intending to indicate that he is unable to appear this morning because he has had some kind of panic attack. He therefore clearly knows that the matter is on today. I will return to that in a moment.
Rule 22.45 of the Rules provides that a Court with jurisdiction in the appeal may dismiss the appeal if the appellant has failed to comply with an order in relation to the appeal or failed to show reasonable diligence in proceedings with the appeal. That clearly is the case here.
Not only was the Summary of Argument due by 21 December 2020, but the filing and service of the Application in an Appeal seeking dismissal of the appeal for failure to file the Summary of Argument was or should have been a significant prompt and reminder of the importance of filing that document. Despite being aware of the application, still no Summary of Argument has been filed and no documents have been lodged indicating when it might be filed.
Counsel for the Independent Children’s Lawyer has suggested that the Court could consider acting under r 22.45(2)(a)(ii) which permits the Court to set a further time in which the Summary of Argument must be provided and order that the appeal will be dismissed if the document is not filed within that time.
Such a course has some force, particularly in the light of the email that has been sent this morning by Mr Butler. However, the email sent this morning does not provide any detail as to his precise state or give any prognosis.
No documents have been filed in opposition to this application.
I consider that there is significant weight in the fact that the orders the subject of the appeal were interim orders and the matter is back before the primary judge shortly, on 13 April 2021.
Finally, there is force in Ms Gibson’s submission that, as this appeal is listed for hearing on 25 February 2021, any significant extension of time would deprive her of the opportunity properly to prepare for the appeal.
I consider this to be a submission that carries real weight because of the form of the Notice of Appeal itself. There are six grounds of appeal which could not be more broadly stated. The grounds simply suggest that the primary judge failed to consider the evidence; made a decision that was plainly wrong; failed to accord procedural fairness; denied natural justice; gave inadequate reasons; and was biased.
Those grounds of appeal are so broad that no specific error of law or fact can be identified by them alone. In other words, sense can only be made of the Notice of Appeal if it is read with a Summary of Argument that elucidates what the errors are said to be.
I am satisfied that having regard to the nature of the proceedings and the appeal, Mr Butler has had more than ample time to file a Summary of Argument. I am not persuaded by his email of today that anything is likely to change in the very short time that one could properly allow him to prepare a Summary of Argument and still provide Ms Gibson with an appropriate time in which to prepare submissions in response.
I am satisfied that the appropriate order is that the appeal be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 5 February 2021
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