Connor & Cosgrove
[2017] FamCAFC 61
•5 April 2017
FAMILY COURT OF AUSTRALIA
| CONNOR & COSGROVE | [2017] FamCAFC 61 |
| FAMILY LAW – APPEAL – Hearing for dismissal for want of prosecution – Where the appellant has not complied with the orders made to prepare the appeal for hearing – Where the appellant has failed to file a summary of argument – Where the appellant was informed that the appeal was listed for dismissal pursuant to r 22.45 of the Family Law Rules 2004 (Cth) – Where the appellant sought an extension of time in which to file his summary of argument – Where the appellant indicated he could not file the summary of argument for at least three months – Where the appeal grounds do not reveal any arguable error – Where any extension of time would represent an injustice to the respondent – Appeal dismissed – Costs ordered. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.45 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Jackamarra v Krakouer (1998) 195 CLR 516 Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 Re W and W: abuse allegations, expert evidence (2001) FLC 93-085 |
| APPELLANT: | Mr Connor |
| RESPONDENT: | Ms Cosgrove |
| FILE NUMBER: | BRC | 3669 | of | 2014 |
| APPEAL NUMBER: | NA | 65 | of | 2015 |
| DATE DELIVERED: | 5 April 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Kent & Cronin JJ |
| HEARING DATE: | 7 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 August 2015 |
| LOWER COURT MNC: | [2015] FCCA 3255 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Dunning QC with Mr M Williams |
| SOLICITOR FOR THE RESPONDENT: | Hetherington Legal |
Orders
The appellant father’s oral application for an extension of time in which to file his summary of argument is dismissed.
The appeal NA 65 of 2015 is dismissed pursuant to the provisions of r 22.45 of the Family Law Rules 2004 (Cth).
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the sum of $5,560.62.
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 Connor & Cosgrove 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: NA 65 of 2015
File Number: BRC 3669 of 2014
| Mr Connor |
Appellant
And
| Ms Cosgrove |
Respondent
REASONS FOR JUDGMENT
Mr Connor (“the father”) appeals against parenting orders made by Judge Coates as long ago as 25 August 2015. The orders concern the five children of the father and Ms Cosgrove (“the mother”).
The father filed a Notice of Appeal on 21 September 2015 and on 14 March 2016 procedural orders were made providing the time periods in which the appeal books and summaries of argument were to be filed. Relevantly, the father was ordered to file the appeal books by 9 September 2016 and his summary of argument was to be filed by 14 October 2016. Thus the father had a full seven months from the making of those orders to file a summary of his argument for his appeal.
While the father filed the appeal books in accordance with the procedural orders, he failed to file his summary of argument. He did not, before the expiration of the seven month period referred to foreshadow or bring any application to extend time.
Attempts were made to contact the father about this issue to no avail:
·On 20 October 2016 the Appeal Registrar wrote to the father notifying him of his non-compliance, drawing his attention to the provision of r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”) and advising him that his appeal may be dismissed if he failed to comply with the order. No response was received from the father to this letter.
·On 9 December 2016 the Appeal Registrar telephoned the father and left a message for him concerning the summary of argument. No response was received.
·On 24 January 2017 the Appeal Registrar again wrote to the parties, raising the father’s failure to comply with the order and notifying them in accordance with r 22.45(3) that the matter was to be listed on 7 March 2017 to consider whether the appeal would be dismissed.
·On 1 February 2017 a telephone message regarding the summary of argument was left on the father’s phone. No response was received.
·On the same day, an email was sent to the father regarding the summary of argument. No response was received.
On 3 March 2017 the father sent an email to the Appeal Registrar in these terms:
I give notice of Withdrawal of the Application for Appeal in this Appeal NA65/2015, and not proceeding with the proposed Hearing on Tue.07Mar2017.
The father appeared on 7 March 2017 and, contrary to his indication in the email of 3 March 2017, rather than discontinuing the appeal, sought an adjournment of six months to enable him to file the summary of argument. As the matter had been listed on the Court’s motion to consider dismissal of the appeal pursuant to r 22.45, the father and counsel for the mother made submissions on that issue.
Notwithstanding repeated attempts by us at the hearing to receive it, the father provided no intelligible explanation for the fact that he had as recently as 3 March 2017 resolved to communicate that he was withdrawing his appeal, yet at the hearing on 7 March 2017 he completely resiled from that position.
We note that the affidavit of the mother’s solicitor filed in support of an application for costs discloses that the father also on 3 March 2017 emailed the mother’s solicitor in these relevant terms:
For noting – I have Withdrawn the Application for Appeal in this Appeal NA65/2015, and not proceeding with the proposed Hearing on Tue.07Mar2017.
That drew the response that the father was put on notice by the mother’s solicitor that the mother would at this hearing be seeking an order that the father pay the mother’s costs of the appeal and of this hearing.
The absence of any meaningful explanation by the father for the about face in his position in this context, allied with his contention that his own appeal ought not be progressed until a further six months have elapsed for him to file a summary of argument, does not permit of the ready conclusion that the father is entirely bona fide in seeking to pursue his appeal.
Rule 22.45 is as follows:
(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
(b) if the defaulting party is the respondent:
(i) fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii) proceed to hear the appeal or application.
(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.
The delay in complying with the order
The father, as we have said, sought a further six months in which to file his summary of argument. In essence he said that he did not have the capacity to distil his legal argument into the requisite document, and wished to have legal assistance in preparing the summary. He told the Court that he was in discussions with a “financial sponsor” whom he did not identify who he hoped would provide him with the funds necessary to pay for the preparation of the document. It was never made clear whether the six month delay was to enable the financier to provide the money or whether it would take six months to have the document prepared. The details of the funding were also not clear.
No explanation was provided to reconcile the fact that the father had been apparently unable to secure this financial sponsorship in the period since the 14 March 2016 orders were made, on the one hand, with the father’s contention that funding would become available in the future, on the other. Nor was there any explanation to reconcile between, on the one hand, the father allegedly being “in discussions with a financial sponsor”, yet on the other hand his stated position as at 3 March 2017 that he was withdrawing his appeal.
It was put to the father during his submissions that even if we were ultimately persuaded to grant the father the indulgence of yet further time to file his summary of argument, it could only be a period in the order of 14 days from the outcome of this hearing that could reasonably be contemplated as the period to be fixed. In response, the father confirmed that fixing a period of 14 days would be “futile” as he would certainly not file the summary of argument in that time. The father submitted that three months from the hearing was the minimum period with which he might be able to comply.
By the time of this hearing the father had failed to file his summary of argument within the seven month period originally ordered or within the further approximately four months that had elapsed since his default commenced on 14 October 2016.
The thrust of the father’s submission on delay devolved to this: he could not afford to pay for a lawyer to prepare the document, not least because he was financially responsible for the costs of facilitating the children spending time with him as ordered, and he saw no reason why the appeal should not be delayed further for such time as might be involved to enable him to get around to filing the summary of argument.
Lest it be thought that delay in bringing the appeal to hearing is some technical or minor matter, it is apposite to recall what was said in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. That case, although concerned with time limits for the commencing of proceedings, nonetheless resonates on the question of delay and justice. McHugh J said 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.
Moreover, s 97(3) of the Family Law Act 1975 (Cth) (“the Act”) contains the statutory prescription that in proceedings under the Act the Court “shall endeavour to ensure that the proceedings are not protracted.” This prescription is fortified by the Rules of Court made pursuant to s 123 of the Act (the Family Law Rules 2004). For example, r 1.04 expresses 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. Rule 1.08 imposes responsibilities upon parties to proceedings including – (c) ensuring readiness for court events – (e) complying with time limits – (g) assisting the just, timely and cost effective disposal of cases – (l) complying with these Rules and any orders. The subject rule here, r 22.45 has application in the context of s 97(3) and the Rules, including by reference to the expressed main purpose of those Rules.
A similar approach can be seen in the rules of most courts. That was the case in r 21 of the Court Procedures Rules 2006 (ACT). Specifically, r 21(2)(b) referred to the timely disposal of proceedings at a cost affordable by parties. That rule was considered by the High Court of Australia in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 where the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:
92The 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".
93Rule 21(2)(b) indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants. In Sali v SPC Ltd Toohey and Gaudron JJ explained that case management reflected: “[t]he view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard ...”.
(Citations omitted)
To further delay the hearing of the appeal by six or even three months would in our view represent a prejudice to the mother who, while ever the appeal is undetermined, has the undoubted anxiety and uncertainty of parenting orders that are under challenge. It was accepted that because of the father’s delay in complying with the procedural orders necessary to ready the appeal, the appeal would be unlikely to be heard before late 2017. This would mean it would be some two years or more since the orders were made to the appeal being heard.
The excuse for the failure to file the document is entirely unsatisfactory and even had the Court been of a mind to indulge the father by providing a short extension of time in which to file the summary of argument, the father said he would be unable to meet any time frame less than three months. There is reason to doubt that, given the delay so far, it would ever be filed. As we have identified, there are reasons to question the father’s bona fides.
Thus, the father’s oral application for an extension of time in which to file the summary of argument will be dismissed.
Turning then to the dismissal of the appeal; that the father has been unable to comply with directions given nearly one year before this hearing, and that he is unable to comply with the direction to file a summary of argument for any lesser period than three months, is a matter which of itself should lead to the appeal being dismissed for want of prosecution.
It is important to refer to what was said by Gummow and Hayne JJ in Jackamarra v Krakouer (1998) 195 CLR 516, 528 at [33]:
...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.
In our view this is such a case. 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, (and possibly not even then) and the appeal not be heard for some time thereafter.
However, as to dismiss the appeal would extinguish the father’s right to appeal and is akin to summary dismissal, we propose to consider the merits of the appeal before following such a course.
Merits of the appeal
In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, Warren CJ and Nettle JA said at [35]:
d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
Counsel for the mother contended that the appeal should be dismissed because it was without merit. With the agreement of the father, and given the technicality of the argument, we heard the arguments of counsel for the mother first so as to give the father a framework by which to mount his arguments against the dismissal of the appeal.
The Notice of Appeal filed 21 September 2015 contains 52 purported grounds of appeal which are not proper grounds of appeal but are discursive and argumentative. In reality, however, the issues raised can be distilled to the following complaints:
· The trial judge failed to admit evidence on which the father sought to rely;
· The trial judge permitted the mother to rely on evidence contained in an affidavit which was filed late;
· The trial judge denied the father the assistance of a McKenzie friend during the hearing; and
· The trial judge did not provide the father the transcript so he could properly formulate his Notice of Appeal.
Failure to admit evidence and allowing the mother to rely on evidence filed late
To prepare the matter for hearing, the trial judge made directions for the filing of affidavits and also ordered the preparation of a report from a single expert, Mr H.
The father, without consulting the mother and without seeking a direction or order permitting it, arranged for a psychologist, Dr B, to interview the children at a cafe and observe them, and one supposes their interaction with the father, at a park. Dr B also conducted interviews with the father and prepared a report in relation to his observations and his opinion. Despite Dr B wishing to contact the mother for the purposes of his report, the father denied this request and the mother was not interviewed or seen for the report.
At the commencement of the hearing, counsel for the mother objected to the admission of the report of Dr B. The father said that Dr B’s report was in answer to the report of Mr H. The trial judge rejected the admission of the report noting that it was “merely adversarial”, was produced without an order of the court or application of the father, and that there was already a Family Report in the proceedings, the author of which had seen both of the parties (transcript 24 August 2015, page 10 line 44-47).
Clearly then, the trial judge was of the view that where the Court had ordered a Family Report prepared after interviews with both parties and the children, he would not be assisted by a report which “just contradicts” the Family Report and did not include any assessment of one of the parties. It was entirely open to the trial judge to regard the report of Dr B as being unhelpful to the determination of the issues and to exclude it.
There is longstanding authority of this Court as to the lack of utility in a “one-sided” report meaning one prepared in the context that one of the parents is not involved (see, for example, ReW and W: abuse allegations; expert evidence (2001) FLC 93-085).
In his reasons for judgment his Honour said:
61. … As I say, the father does not accept any of this evidence [from the family consultant]. It was a pity in this sense, because the father, although legally represented earlier, made decisions when he became self-represented as to how he would run his case.
62. Instead of understanding how and why the family consultant is appointed, he set out to obtain, and filed, his own alleged expert evidence to counter that of Mr [H].
63. There were no directions for that type of case to be presented.
64. There was no application for that type of case to be presented, and in my assessment of the evidence, I could not see that such – that type of case where the court is to decide between experts was warranted in this case.
65. Self-represented litigants are in a peculiar position in proceedings, because while procedural fairness is quite often extended over and above that given to a represented party, at the end of the day they are still expected to run their case effectively, putting forward persuasive, admissible, and cogent evidence to support the propositions which they say will go to the making of the best interests decision.
66. That is why I deliberately raised with the father the manner in which he was addressing issues and giving him time to try and think about what was occurring here. It is the only thing I could do in the circumstances, although I still have the view that he knew what he had to challenge, and he knew he had to challenge the mother’s evidence.
67. He did not, for whatever reasons, put Mr [H] on notice, and, really, that is a major tactical mistake, because it is simply not allowable that a litigant can state to the court that the evidence of a professional witness is not acceptable to them without putting that professional witness into the witness box and testing the evidence.
The father also commissioned a report of Professor Y which commented on an affidavit sworn by the wife’s brother-in-law, Mr T, the uncle of the children. Counsel for the mother said that the evidence of Mr T was “of his observations with the family over the last two decades” (transcript 24 August 2015, page 13 line 15).
The trial judge was unpersuaded that the evidence of Mr T was of assistance in deciding the case, and it was conceded by the mother that the affidavit of Mr T was filed somewhat late. His Honour said that he was “tending probably not to let it in because it just doesn’t help me” but that he would “see how it goes” (transcript 24 August 2015, page 13 line 31). The father argued that if Mr T’s affidavit was admitted he wished to rely on the report of Professor Y. In the result, his Honour refused to admit the report of Professor Y which he said “is all about people’s memory” (transcript 24 August 2015, page 14 line 10).
Though the father contends that the trial judge erred in allowing the mother to rely on the evidence filed in Mr T’s affidavit, it was not relied on in the mother’s case (transcript 24 August 2015, page 69 line 20). In these circumstances, given that the father’s reliance on the report of Professor Y rested on the receipt of Mr T’s evidence, the challenge to the rejection of Professor Y’s evidence cannot be sustained.
The father further contends that his Honour wrongly excluded affidavits he filed in compliance with the directions.
The trial judge rejected some of the affidavits filed by the father because they were “oppressive”, his Honour noting that “some of these affidavits are 500 paragraphs long” to which the father replied “it’s evidence”. The trial judge in rejecting those documents further commented that they contained “miles of evidence which is irrelevant and just lots of it” (transcript 24 August 2015, page 8 line 36 et seq.). His Honour however took into account other affidavits filed by the father, including those considered by the author of the Family Report.
His Honour said:
55. I am not going to address all of the evidence of either party.
56. The father has filed so many affidavits, some of them 500 paragraphs long, that his material has simply become oppressive.
57. It cannot be dealt with logically or rationally in a trial situation. That does not mean that I have not examined at least two affidavits, one of 24 April 2014, which Mr [H] read, and his trial affidavit of 3 February 2015, as long as those affidavits are.
Finally, the trial judge rejected the father’s application to call evidence of witnesses to whom he had issued subpoenas and where none had provided a proof of evidence or statement.
The following exchange is informative:
HIS HONOUR: …where’s their affidavit evidence?
[THE FATHER]: I’m asking them to testify and not produce documents.
HIS HONOUR: No. No. No, no. I don’t know what they will say. More than that, the mother’s legal team does not know what they will say.
[THE FATHER]: I don’t know – I don’t know what they will say either, your Honour.
(Transcript 24 August 2015, page 15 lines 19-27)
In each case, it was for the trial judge to determine what evidence would or would not assist in the assessment of the issues and his Honour, it seems, was clearly aware of the potential unfairness in the father’s production of an adversarial expert.
It bears emphasis that as these were child-related proceedings within the meaning of Division 12A of Part VII of the Act, the principles for conducting those proceedings expressed in s 69ZN, the general duties expressed in s 69ZQ and the Court’s general duties and powers relating to evidence expressed in s 69ZX applied. Those provisions mandate that the trial judge actively manage and control the proceedings by the exercise of those general duties and powers relating to evidence.
Subsection 69ZQ(1) provides that in giving effect to the principles in Division 12A, the Court must “decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily” and “in deciding whether a particular step is to be taken – consider whether the likely benefits of taking the step justify the costs of taking it”. Furthermore, s 69ZX(1)(b) provides that in giving effect to the Division 12A principles, “the court may ... give directions or make orders about who is to give evidence in relation to each remaining issue” and s 69ZX(2)(j) makes clear that the court may give directions or make orders “limiting the number of witnesses who are to give evidence in the proceedings”.
The transcript shows the trial judge fulfilled those responsibilities and gave reasons. In our view, the complaints of the father about the management of the trial have no merit.
Failure to allow the father the assistance of a McKenzie friend and the issue of transcript
At the commencement of the hearing, the father’s sister, Ms K, told his Honour that she wished to remain in the courtroom during the hearing because she was “representing both parties as … a – McKenzie’s [sic] friend…”. Once told that she could not act in that capacity for both parties, she opted to assist the father but said that she would be a witness in the case as well. His Honour refused to allow her to remain in court to assist the father.
It is relevant to understand that the father took no part in this discussion, aside from informing his Honour that he would be relying on Ms K as a witness. The issue was raised by Ms K and when the trial judge refused to allow her, a witness, to also provide assistance to the father, he made no objection.
How his Honour could be said in those circumstances to have erred is not apparent.
Finally, the father contended that the trial judge erred in not providing him with a copy of the transcript of the proceedings for the preparation of the appeal. This complaint is not a challenge to his Honour’s orders and, in any event, the father acquired the transcript of the proceedings because it was included in the appeal books. This challenge is incompetent.
Conclusion
Thus counsel for the mother argued that to permit the appeal to proceed would be futile as the grounds, if not hopeless, do not reveal any arguable error. We agree.
The matters of which the father complains were all matters quintessentially within the trial judge’s discretion in managing the trial and the evidence and we fail to see what error the grounds reveal.
We are satisfied that the conditions of r 22.45 are met and that it is not appropriate to grant an extension of time to the appellant to file his summary of argument. The appeal will thus be dismissed for want of prosecution pursuant to the provisions of r 22.45 of the Rules.
Costs
Counsel for the mother sought costs of the appeal in the event that the appeal was dismissed. The father resisted an order for costs, noting his own impecuniosity and arguing that it would not advance the interests of the children because it would divert funds from paying the costs of travel in order for the children to spend time with him.
The father initiated the appeal and has failed to comply with orders made to ready it for hearing. This failure, together with the father’s persistent failure to respond to the approaches of the Appeal Registrar, necessitated the listing of the matter, and ultimately the dismissal of the appeal. In those circumstances he should bear the mother’s costs of meeting the appeal so far.
Counsel for the mother provided documents supporting the costs (assessed on a party/party basis) contended for by the mother in the sum of $5,560.62. It is reasonable for a costs order to be made in that sum and we will make that order.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Kent & Cronin JJ) delivered on 5 April 2017.
Associate:
Date: 5 April 2017
0
4
2