Collins and Ricardo - [2014] FamCAFC 53

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO

[2014] FamCAFC 53

FAMILY LAW – APPEAL – possible dismissal for want of prosecution – where the Full Court extended the time for filing of appeal books – where the Full Court made a self-executing order.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPELLANT:

Mr Collins

RESPONDENT:

Ms Ricardo

INDEPENDENT CHILDREN’S LAWYER:

Ms Weate

FILE NUMBER:

SYC

4959

2009

APPEAL NUMBER:

2012

DATE DELIVERED:

20 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland & Ryan JJ

HEARING DATE:

20 March 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 January 2012

LOWER COURT MNC:

[2012] FamCA 11

REPRESENTATION

COUNSEL FOR THE APPELLANT:	In person
SOLICITOR FOR THE RESPONDENT:	Mr Autore

SOLICITOR FOR THE INDEPNDENT CHILDREN’S LAWYER:

Jennifer Weate & Associates

Orders

The father file and serve his appeal books (including passages of the transcript of the trial which he considers relevant) by close of business on 30 June 2014.
In the event that the father does not file and serve his appeal books by close of business on 30 June 2014, the appeal will stand dismissed.
On the father’s compliance with Order 1 of these orders, then the provisions of Rule 22.22 of the Family Law Rules 2004 (Cth) (which concerns the filing of the summaries of argument) shall apply.
Order 4 of the procedural orders made by the Appeal Registrar on 4 April 2012 be amended to include the following affidavits in the contentious appeal book:
(a)
the affidavit of Ms Ricardo in SYF 4548 of 2003 filed


12 December 2008,
(b)       the affidavit of Mr B in SYF 4548 of 2003 filed 23 February 2007.
Otherwise the application of the father filed 13 March 2014 be dismissed.
The father pay the costs of the mother of and incidental to the proceedings today, such costs to be fixed at $380 plus GST.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 15 of 2012
File Number: SYC 4959 of 2009

Mr Collins

Appellant

And

Ms Ricardo

Respondent

And

Ms Weate
Independent children’s lawyer

REASONS FOR JUDGMENT

FINN J:

This matter was listed before us today pursuant to letters written on

5 February 2014 by the Appeal Registrar to both the appellant and respondent to the appeal, and to the Independent Children’s Lawyer. The letters from the Registrar advised the parties that the matter was to be listed before us today so we could consider whether to dismiss for want of prosecution an appeal filed by Mr Collins acting on his own behalf. (I will refer to Mr Collins either as “the father” or “the appellant”). The appeal is against parenting orders made by Watts J on 12 January 2012 after a trial of some nine days in mid to late 2011.
Watts J’s orders essentially provided that the then four year old child of

the father’s relationship with Ms Ricardo (whom I will refer to as

“the mother” or “the respondent”), should live in Western Australia with

the mother, that the mother should have sole responsibility for the child, and that the child should spend limited time at contact centres with the father who lives in New South Wales.
On 4 April 2012 the Appeal Registrar made orders expediting the hearing of the appeal, and also making what I would term “usual procedural directions”

for the preparation of the appeal for hearing.
Further orders were then made by Coleman J on 18 June 2012 which essentially gave the father permission to listen to audio recordings of the trial so that the father could include in the appeal book parts of the transcript of

the trial which he considered relevant.
Again, Coleman J made orders in relation to the parties being able to listen to recordings of the trial on 30 August 2012. Then, on 15 October 2012

his Honour made further orders of a similar content. But, importantly, on that day his Honour also made an order that discharged “any previous orders in relation to the timing of the filing by the appellant of the Appeal Books and Summary of Argument” (Order 3), together with a further order (Order 4):
That upon the appellant certifying in writing that the Appeal Books have been completed to the best of his ability in accordance with the Court’s directions, the Appeal Registrar place the appeal in the Sydney sittings of the Full Court hearing on a date to be arranged between the appellant and [the solicitor] for the respondent.
Yet again on 5 December 2012, it was necessary for Coleman J to make further orders concerning the audio recordings of the trial.
Nothing then happened after those orders were made by Coleman J on

5 December 2012, at least as I understand it, until 9 December 2013 – that is

12 months later – when the Appeal Registrar emailed the appellant father and pointed out that the matter had not progressed for a year and advising that unless the appeal books were filed by 31 January 2014, the appeal would be listed before a Full Court to consider its dismissal for want of prosecution.
When no action resulted from that email a formal letter was sent by

the Registrar on 5 February 2014 to all parties listing the matter today so that we might consider dismissal of the appeal for want of prosecution. That is

the letter I mentioned at the outset of these reasons. Following that letter from the Registrar dated 5 February 2014, the father on 13 March 2014 filed an application in which, in brief terms, he sought orders which would add four affidavits, none of which were apparently before the trial judge, to the

appeal book, and which would also require the Court to bear the cost of the provision of transcript of the trial for purposes of the appeal.
When the matter came before us today, we explained to the father that the orders which were sought in his application filed 13 March 2014 (being the orders about adding affidavits to the appeal book and the Court providing transcript) were not orders that this Full Court sitting today could make, but rather would be orders that the Full Court which hears the appeal could make. We also explained that it seemed to us that we could take from the fact that the father was seeking those particular orders, that he wanted his appeal to remain on foot, and the father has confirmed that that was so to us today.
The father has explained to us that the reasons for the 12 month delay from

the last time Coleman J made orders until the Registrar revived this matter a couple of months ago, related to issues about the transcript, including the costs involved for him, and also that he has been involved in proceedings in other courts, and has had some financial difficulties in relation to his farming business.
We have canvassed with the father whether if we were to give him time to have his appeal books (including those parts of the transcript that he considered relevant) filed and served, he might be able to meet a deadline of the end of June 2014. He confirmed that he could do that.
We have also discussed with the father the issue of the affidavits that he wants to add to the appeal books. I will return to that matter shortly.
Mr Autore, a solicitor, has appeared today by phone for the mother. He has opposed our granting the father another limited period of time in which to file his appeal books; essentially Mr Autore has relied on the delay that has already occurred and the costs and inconvenience to his client.
However, having regard to the history and also having regard to Coleman J’s orders, particularly the one which I have set out above and which permitted

the father to effectively relist the appeal for hearing at his convenience, I consider that overall the interests of justice do require that the father be given an opportunity on what would be a very clear timeframe, to file his appeal books. Those books should contain the passages of the transcript which

the father considers relevant and which he is able to obtain in the time period that we will give him.
As to the matter of the four affidavits that were the subject of the father’s application of 13 March 2014, two of those affidavits seem clearly to be affidavits that would have been in existence, or have been filed, at the time of the trial, although it appears they were not before the trial judge. Those affidavits could be included, and I propose that we make an order accordingly, in the contentious appeal book, which the Appeal Registrar in her original procedural directions provided for the father to file.
Affidavits which were filed or sworn or affirmed after the time of the trial would have to be the subject of an application to adduce further evidence. Such an application would have to be filed and served in advance of the hearing of the appeal and would then be the subject of determination by

the Court that hears the appeal.
In his submissions on behalf of the respondent today, Mr Autore finally raised the issue of costs. We explained to him that in the event that the appeal ultimately did not proceed – in other words, was dismissed because the father had failed to file his appeal book by the time required – there is provision in the rules for an application to be made for costs thrown away by the respondent in relation to the appeal (Rule 22.45(4) of the Family Law Rules 2004 (Cth)).
As to today’s proceedings, Mr Autore sought costs in the sum of $380 plus GST. In my view, and notwithstanding that the father has told us of his financial difficulties, he should have to pay those costs and I would propose

to so order.
I also make it clear that the order that I propose extending the father’s time for filing his appeal books, would also provide that if he did not file his appeal books by the stated date, being 30 June 2014, then his appeal would stand dismissed, and there would be no need for further court appearances, save for any application made in relation to costs by the respondent.
The orders that I therefore propose would be, and I will not read them in their full form now because I will wait to hear whether my colleagues concur with my reasons and proposed orders; but, in outline my orders would be that the father would be permitted to file and serve his appeal books up until

30 June 2014. In the event that he did not file the books by that date, the appeal would stand dismissed. If he did comply with the order for the filing of the appeal books, then the provisions of the Family Law Rules 2004 (Cth) concerning the timeframe for the filing of summaries of arguments would apply.
I would also amend Order 4 of the Registrar’s original procedural orders of

4 April 2012 to include two affidavits which would be specified in the orders, and I would provide that otherwise the application that the father filed on

13 March 2014 would be dismissed. I would make an order in favour of the respondent mother for costs.

STRICKLAND J:

Yes, I agree with the reasons delivered by the presiding judge and with the orders proposed by her Honour and have nothing further to add.

RYAN J:

I agree with the reasons given by the presiding judge and the orders she proposes and have nothing further to add.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Ryan JJ) delivered on 20 March 2014.

Associate:

Date: 20 March 2014