DUARTE & MORSE
[2018] FamCAFC 69
•13 April 2018
FAMILY COURT OF AUSTRALIA
| DUARTE & MORSE | [2018] FamCAFC 69 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time to file an application to review a registrar’s orders – Where the delay was insignificant – Application granted. FAMILY LAW – APPLICATION IN AN APPEAL – REVIEW OF A REGISTRAR’S ORDERS – Notices to the Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth) – Whether the Court and its registrars have the power to direct that the noticed be served by a particular date – Whether procedural orders provided adequate timeframes for the filing and service of documents – Whether the registrar should have made an order allowing for the issue of a Notice to Produce – Where Notices to Produce are an interlocutory process not appropriate for an appeal – Where the applicant sought clarification of the Court’s powers – Where the Court cannot give an advisory opinion – Extensions of time and of the length of the parties’ Summaries of Argument granted – Application otherwise dismissed. |
| Family Law Act 1975 (Cth) Family Court of Australia, Practice Direction No. 1 of 2017 – Conduct of Appeals, 22 December 2016 |
| Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292; [1999] FCA 1151 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 |
| FIRST APPLICANT: | Ms Duarte |
| SECOND APPLICANT: | Mr Tolman |
| RESPONDENT: | Mr Morse |
| FILE NUMBER: | SYC | 737 | of | 2014 |
| APPEAL NUMBER: | EA | 6 | of | 2018 |
| DATE DELIVERED: | 13 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 5 April 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 December 2017 |
| LOWER COURT MNC: | [2017] FamCA 1039 |
REPRESENTATION
| FOR THE FIRST AND SECOND APPLICANTS: | Ms Duarte in person |
| COUNSEL FOR THE RESPONDENT: | Ms Kennedy |
| SOLICITOR FOR THE RESPONDENT: | Slater & Gordon Lawyers |
Orders
Ms Duarte (“the first appellant”) and Mr Tolman (“the second appellant”) are granted an extension of time in which to seek a review of the registrar’s orders of 27 February 2018.
The draft Application in an Appeal seeking review of the orders made on 27 February 2018 and the affidavit of Ms Duarte dated 14 March 2018 are taken to have been filed on 5 April 2018 and heard with the application for extension of time. Any rules which impede such a course are dispensed with pursuant to Rule 1.12 of the Family Law Rules 2004 (Cth).
The orders and directions made on 27 February 2018 are vacated and in lieu the following orders and directions are made:
1.It is noted that the first appellant and the second appellant (“the appellants”) contend that this appeal involves matters arising under the Constitution or involves its interpretation and that same are genuine issues in this appeal.
2.By 27 April 2018 the appellants must give written notice of the matters referred to above to the Attorneys-General of the Commonwealth of Australia, and each State and Territory of Australia, and to the respondent.
3.The notice in writing referred to above must state the nature of the matter, the issues in the case, the constitutional issue to be raised and the facts relied upon to show that section 78B of the Judiciary Act 1903 (Cth) applies.
4.By 11 May 2018 the appellants are to file and serve an affidavit verifying compliance with the above orders and Rule 6.07 of the Family Law Rules 2004 (Cth).
5.Within 7 days of receipt by the appellants or either of them of a response to a notice provided pursuant to these directions from either the Attorney-General of the Commonwealth of Australia and/or any of the Attorneys-General for each State and Territory of Australia the appellants must file and serve an affidavit setting out the circumstances of such response and providing the Court with a copy of any such response.
6.That the appeal books for the appeal comprise each of the following documents arranged in the following order:
Appeal Books:
1.Notice of Appeal filed 28 December 2017;
2.Order of the Honourable Justice Le Poer Trench made on 1 December 2017;
3.Reasons for Judgment of the Honourable Justice Le Poer Trench delivered 1 December 2017;
4.Respondent’s Fourth Amended Initiating Application filed 29 January 2016;
5.First appellant’s Response filed 17 February 2017;
6.Document entitled “Cross-Claims: Short Minute of Order” filed in Court by the first appellant on 3 July 2017 and referred to in paragraph 715 of the Reasons for Judgment (document 3 above);
7.Affidavit of Mr Morse filed 29 January 2016;
8.Affidavit of Mr Morse filed 25 May 2017;
9.Financial Statement of Mr Morse filed 25 May 2017;
10.Affidavit of Ms NP Morse filed 29 January 2016;
11.Affidavit of Ms KK filed 18 June 2014;
12.Affidavit of Mr QO filed 29 January 2016;
13.Affidavit of Mr RP filed 26 June 2017;
14.Affidavit of Mr TW filed 29 January 2016;
15.Affidavit of Detective Y filed 9 February 2016;
16.Affidavit of Ms BB filed 30 March 2017;
17.Affidavit of Ms D filed 9 September 2015;
18.Affidavit of Ms D filed 23 November 2015;
19.Family Report of Ms W filed 7 December 2015;
20.Case Outline of Respondent filed 19 June 2017;
21.Written Submissions of Applicant filed 2 August 2017;
22.List of Exhibits;
Transcript:
23.It is noted that the transcript of the proceedings before the Honourable Justice Le Poer Trench on 26 June 2017 to 30 June 2017 inclusive and 3 July 2017 to 7 July inclusive and 2 August 2017 and 3 August 2017 (hereinafter called “electronic transcript”) has been made available by Auscript to the Eastern Appeals Registry.
7.It is noted that, as the electronic transcript has already been produced to the Court and is available to the parties, it is unnecessary for the appellants to formally provide electronic copies of same to either the Court or the respondent.
8.That the appellants be responsible for the preparation of the appeal books.
9.That the appellants prepare a total of seven (7) copies of the appeal books.
10.The time in which the appeal books are to be filed is extended up to and including 12 April 2018.
11.It is noted that the appeal books have been filed within that time.
12.That the first appellant file and serve a Summary of Argument and List of Authorities, such list of authorities to comply with attachment “A” attached, with the Eastern Appeals Registry on or before 4 June 2018.
13.That the second appellant file and serve a Summary of Argument and List of Authorities, such list of authorities to comply with attachment “A” attached, with the Eastern Appeals Registry on or before 25 June 2018.
14.That the respondent file and serve a Summary of Argument and List of Authorities, such list of authorities to comply with attachment “A” attached, with the Eastern Appeals Registry on or before 16 July 2018.
15.The appellants are permitted to file Summaries of Argument that exceed 15 pages provided that the combined total of the Summaries of Argument filed by them shall not exceed 40 pages and must otherwise comply with Practice Direction No.1 of 2017.
16.The respondent is permitted to file a Summary of Argument that is up to 40 pages long, provided that it otherwise complies with Practice Direction No.1 of 2017.
17.Each party is at liberty to apply for any further directions regarding any question arising out of the appeal book index to the Appeals Registrar, and regarding any other issue, to a judicial member of the Appeal Division, upon five (5) days’ notice in writing to the other party and to the Appeals Registrar in the Sydney Registry.
18.It is noted that Practice Direction No. 1 of 2017 applies to this matter and it is ordered that, to the extent to which the Practice Direction may be inconsistent with the relevant Family Law Rules 2004 (Cth), the Practice Direction is to prevail to the extent of the inconsistency.
19.That the costs of and incidental to this hearing be reserved to the Full Court.
20.To the extent these orders do not comply with the Family Law Rules 2004 (Cth), such compliance be dispensed with.
21.The parties are granted access to the exhibits for the purposes of photocopying them.
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 Duarte & Morse 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 6 of 2018
File Number: SYC 737 of 2014
| Ms Duarte |
First Applicant
And
| Mr Tolman |
Second Applicant
And
| Mr Morse |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 22 March 2018, Ms Duarte (“the first applicant”) seeks an extension of time in which to file an application seeking a review of the orders made by the Eastern Regional Appeals Registrar (“the registrar”) on 27 February 2018. The registrar’s orders were made in an appeal between the first applicant and Mr Tolman (collectively, “the appellants”) and Mr Morse (“the respondent”).
Mr Tolman is named as a second applicant in this application but did not take any part in the hearing.
The orders the subject of the proposed application are the standard orders that are made to prepare an appeal for hearing. In this case, directions were also made providing for a timetable for the service upon the Attorneys‑General of the Commonwealth and each State and Territory of Australia of notices pursuant to s 78B of the Judiciary Act1903 (Cth) (“the Judiciary Act”) and for an affidavit of service of those notices to be filed.
In order to understand the disposition of this application some indication of the nature of the proceedings and the appeal is useful.
The appeal is from parenting and property orders made by Justice Le Poer Trench on 1 December 2017.
The first applicant and the respondent have three children who were born between 2006 and 2012. The effect of the orders is that the respondent is to have sole parental responsibility for the children and the first applicant is to have supervised time with them commencing with time supervised by a commercial agency.
As to property, the primary judge made a declaration that the appellants hold a property at Suburb C on trust for the first applicant and the respondent. The first applicant was ordered to pay the respondent the sum of $523,455 on or before 5.00 pm on Monday 26 February 2018. Pursuant to the orders that payment would extinguish the respondent’s interest in the property and he would be obliged to sign documents to that effect. If the first applicant failed to pay the respondent the sum by that date, the property was to be sold and the funds divided so that the respondent received 49.8 per cent of the net proceeds of sale.
On 14 February 2018 the primary judge stayed order 31 of the orders which provided for the property to be sold in the event that the first applicant had not paid the requisite sum by 26 February 2018.
Application to extend time
The Court has power to extend the time in which the first applicant may file an application for review of the registrar’s orders (r 1.14(2) of the Family Law Rules 2004 (Cth) (“the Rules”)) and will do so where it is in the interests of justice to grant the application (Gallo v Dawson (1990) 93 ALR 479 at 480).
The first applicant’s evidence was that she attempted to file the Application in an Appeal seeking review on 14 March 2018. This was not within the 14 day period provided by r 22.40 of the Rules. The application was not received for filing. The present application was filed shortly thereafter on 22 March 2018.
The first applicant’s explanation of the delay was somewhat cursory and simply referred to her time being taken up with “urgent medical needs and property maintenance needs after some heavy winds”. Despite that, given the short time period involved and given the procedural nature of the registrar’s orders, I considered that the merits of the proposed application would carry considerable weight. That effectively meant consideration of the proposed application itself.
Therefore the parties agreed that in the event that I propose to grant the application for an extension of time, I should immediately move to deal with the substantive application for review without the need for the lodging of a formal application or the need to receive further submissions. The parties made all of the submissions that they wished to make in support of their respective positions in respect of the application for review. In order properly to deal with the application I indicated that I would have regard to the Application in an Appeal for the review of the registrar’s decision and the supporting affidavit of the first applicant dated 14 March 2018, although strictly speaking they are yet to be filed.
I propose to follow this course. There will be an extension of time in which to file the application.
Application for review
The first applicant’s challenges to the orders made by the registrar fell, generally speaking, into four groups. The first was that she asserted that the Court did not have jurisdiction to make directions as to the service of notices under s 78B of the Judiciary Act. The second group was generally that she wished the timetable to be significantly more generous in respect of times provided to take particular steps. She also sought that the maximum allowable length of her Summary of Argument be extended. The third was the registrar’s refusal to make orders for the issue of Notices to Produce. Finally, the first applicant sought interim orders “clarifying” the Court’s jurisdiction.
I note that this is a review of the registrar’s decision and therefore a hearing de novo.
Section 78B notices
The grounds of appeal are extensive. The appellants’ Notice of Appeal enumerates 59 grounds; however, when sub-grounds and alternatives are taken into account there are in fact 81 grounds of appeal. The first applicant says that she has raised at least seven constitutional issues in her grounds of appeal which bear upon the validity of a number of sections of the Family Law Act 1975 (Cth).
Consequent to the filing of the appellants’ Notice of Appeal, the registrar directed the appellants to give written notice of the matters arising under the Constitution or involving its interpretation by 27 March 2018 and to file an affidavit verifying compliance with that order by 10 April 2018. The first applicant’s contention is that the Court does not have jurisdiction to make such directions.
Section 78B of the Judiciary Act provides:
78B Notice to Attorneys‑General
(1)Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2)For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a)may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b)may direct a party to give notice in accordance with that subsection; and
(c)may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
Section 78B(2)(b) clearly empowers a court in which a cause is pending to direct a party to give notice in accordance with subsection (1).
The purpose of that subsection is obvious. Under s 78B(1) a court has a duty “not to proceed in the cause unless and until the court is satisfied” the requisite notice has been given to the Attorneys-General.
As the Court has power to direct the service of notices it follows by clear and obvious implication that it can direct that the notices be given by a certain date. If it was otherwise, the party raising the constitutional issue could delay the hearing of a cause until a time of their choosing. This is because the Court cannot proceed until the requisite notice is given (see, for example, Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (1999) 95 FCR 292 (“Berbatis”) at [12]).
It is also evident from [25] and [26] of Berbatis that the issue of s 78B notices should ideally be dealt with at a directions hearing or case management hearing with the obvious intent of making directions for their service.
Further, all courts have an inherent or implied power to make directions for the orderly conduct of proceedings before them. That, in my opinion, clearly includes directions that permit a proceeding to be heard promptly where matters arising under the Constitution or involving its interpretation are raised. This too would permit the Court to give directions about the timely service of notices under s 78B.
I am satisfied that the Court and therefore the registrar had the jurisdiction to make the directions for the service of s 78B notices that were made.
Procedural steps in the appeal
Are the times provided by the registrar’s orders for taking procedural steps adequate?
The first applicant submits that because she has the care of three young children (one of whom is still being breastfed), is a university student, regular church member and a self-represented litigant, the orders made by the registrar do not give her a reasonable and appropriate amount of time in which to prepare the appeal for hearing. Her proposal is that as she will have a term break from her university studies in July this year, she will use that time to prepare the appeal. She therefore sought orders that the appeal books and her Summary of Argument be filed at some date in August as opposed to 10 April 2018 for the appeal books and 2 May 2018 for her Summary of Argument.
The first applicant also said that the second applicant was unable to assist her in this task because he has dyslexia. Finally, she said that she recognised the importance of bringing the matter on for hearing but that the course proposed by her would enable the appeal to be heard this year.
Procedural fairness is a two-way street. The respondent has received the benefit of property orders which are presumed to be correct unless and until set aside on appeal. The stay granted by the primary judge on 14 February 2018 prevents him from enjoying the fruits of the proceedings. He is living in rented accommodation with the three children and therefore has a real and genuine interest in the appeal coming on for hearing sooner rather than later.
It is also in the best interests of the children that this appeal be determined promptly. Whilst it is true that the children are presently living with the respondent and spending limited time with the first applicant, the existence of an appeal with its attendant prospect of a rehearing is likely to be unsettling. This favours the appeal being heard sooner rather than later.
The respondent also submits that the first applicant has a history of not complying with court orders and relies upon material in an affidavit filed before the primary judge on 22 December 2017. I am inclined to give less weight to this submission because if the first applicant does not comply with the timetable, whatever it may be, there is a real risk that the appeal will be deemed to be abandoned. It was a condition of the stay granted by the primary judge that the stay order would lapse upon the appeal being taken to be abandoned; thus, a failure to comply with the timetable may result in the stay being lifted.
The essential question is whether I am prepared to make orders that would delay the preparation of this appeal by some four months. I am not prepared to do so. Such a delay would operate unfairly against the respondent and would not be in the best interests of the children. I appreciate that this may cause some inconvenience to the first applicant but that is a burden she took on when she decided to appeal and to raise, effectively, 81 grounds of appeal.
I will grant a short, appropriate extension of time in which to serve s 78B notices because of the time that has been taken up by this application. I note that the first applicant informed me that the notices have been prepared but not yet served because she wishes to obtain legal advice on them.
I will also extend the other times set out in the registrar’s orders accordingly.
Extension of the page limit for the first applicant’s Summary of Argument
The first applicant sought an extension of the page limit for her Summary of Argument from the 15 pages prescribed by Practice Direction No. 1 of 2017: Conduct of Appeals to 240 pages. She said this was necessary due to her 81 grounds of appeal.
The grounds raise issues of differing complexity. The summary of submissions in support of them should therefore be quite short.
I note that a Summary of Argument is precisely that – a summary. It should be a concise and focussed document designed to foreshadow the submissions that are to be made. I do not see why anything of the order of 240 pages is required.
I also note that many of the proposed grounds of appeal are repetitive or are not proper grounds of appeal and should be reconsidered. Further, many of the grounds are of such a nature that the submissions in support of them should be very brief.
I will however extend the page limit to 40 pages which ought to be more than sufficient.
The two appellants have filed just one Notice of Appeal, although it is clear from that Notice that the second applicant relies upon just a few grounds. Their interests appear to be aligned.
Therefore I consider that the appropriate order is that between them, their Summaries of Argument are not to exceed 40 pages.
Time allocated for the hearing of the appeal
On this issue the registrar recorded a notation that the appeal will take an estimated one to two days. The first applicant seeks a notation that the appeal will be allocated 10 days of hearing time. The actual allocation of hearing time will take place after the Summaries of Argument have been filed and having regard to what is contained in them. It is, however, extraordinarily unlikely that anything like the time period sought by the first applicant would be allocated. I will maintain the estimate at one to two days.
Should there be electronic appeal books?
The first applicant was concerned to ensure that the transcript and the appeal books be in a consistent format – that is, that they both either be all electronic or all paper in form. At present, the orders require the preparation of paper appeal books but note that an electronic copy of the transcript has been provided to the Court. The first applicant was required to lodge four paper appeal books at the registry.
On 10 April 2018 the first applicant attended the appeal registry to file three copies of the appeal books. The registrar refused to accept them for filing because they contained documents not included in the Draft Appeal Index filed by the appellants on 17 January 2018. The first applicant ultimately removed the additional documents from the appeal books and the appeal books were received by the registry.
A fourth appeal book was received by the registry on 12 April 2018.
This indicates that the first applicant did not in fact need until August to prepare the appeal books.
As the required number of copies of the appeal books have now been filed, there is no point in considering the first applicant’s request for electronic appeal books.
Order granting the parties photocopy access to the exhibits
The first applicant sought an express order that the parties be granted photocopy access to the exhibits. The respondent did not oppose such an order being made.
An order will be made to that effect.
Notice to Produce
The first applicant wishes to issue a Notice to Produce to the respondent requiring him to produce 14 categories of documents which, for example, include all his and the children’s medical records, all photographs of the children, his employment records, counselling and psychologist records and diagnostic records for the period 24 June 2014 to the present.
The proposed notice therefore seeks documents from a period of three years prior to the commencement of the hearing. Obviously, the purpose of the notice is to obtain these records so as to adduce them as further evidence in the appeal. The first applicant said that the records will demonstrate that the respondent lied to the primary judge and will show whether the children are being properly cared for and whether there is any risk to the children.
Courts are generally reluctant, at the hearing of an appeal, to receive evidence that was reasonably available to be called at the hearing or evidence intended to show the effect on the children of orders that effect a change in residence (CDJ v VAJ (1998) 197 CLR 172 at [116]–[118]).
It follows that interlocutory processes designed to gather such evidence, such as Notices to Produce and subpoenae, are not appropriate for an appeal. Rule 15.76 of the Rules permits a Notice to Produce to be served “no later than 7 days before a hearing or 28 days before a trial”. A hearing, as defined in the Dictionary in the Rules, refers to particular types of applications. A trial is defined as the “process of determining a case started by an Initiating Application”. Neither is a reference to an appeal.
For these reasons there is no basis for the issue of a Notice to Produce or a subpoena as proposed by the first applicant.
Clarification of powers
The first applicant sought the following orders:
4.Under Order 15 of Registrar Cameron’s orders of 27 February 2018 (which grants liberty to each party to apply for directions regarding any issue concerning the appeal to a judicial member of the Appeal Division upon five days’ notice), the appellants request:
(a)Clarification as to whether the Full Court of the Family Court of Australia has jurisdiction (within the appeal process for case EEA 6/2018) to judicially review the administrative actions of [Ms W] in producing the Family Report filed 7 December 2015 (‘the report’) in repect of whether her actions were ultra vires;
and if so,
(b)Clarification of the source of power said to underpin the asserted jurisdiction to judicially review the administrative actions of [Ms W] (who is not a party to the case);
and
(c)Clarification of whether the Full Court of the Family Court of Australia has jurisdiction (within the appeal process for case EEA 6/2018) to remedy the ultra vires administrative actions of [Ms W] by means of (i) Writ of Certiorari to quash the report, (ii) Injunction to demand the rescission or revokation of the report, (iii) Writ of Prohibition to prevent the Full Court from having any access and/or regard to the report, or (iv) any other remedy;
and
(d)Clarification of the source/s of power said to underpin the asserted jurisdiciton/s to remedy the ultra vires administrative actions of [Ms W].
(As per the original)
This is an invitation to the Court to give an advisory opinion, which it cannot and will not do. If these issues are raised by the grounds of appeal, they will be determined at that stage.
Conclusion
I will therefore reaffirm the registrar’s orders but with the amendments identified above. The application for review will otherwise be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 13 April 2018.
Legal associate:
Date: 13 April 2018
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