EVERETT & EVERETT
[2013] FamCAFC 143
•11 September 2013
FAMILY COURT OF AUSTRALIA
| EVERETT & EVERETT | [2013] FamCAFC 143 |
| FAMILY LAW – APPLICATION IN APPEAL – ADJOURNMENT – where appellant husband sought adjournment of appeal to be heard while he would be overseas – where in the alternative it was sought that he attend hearing by way of telephone link – where husband had retained counsel to represent him at the hearing of the appeal – application dismissed. FAMILY LAW – APPLICATION IN APPEAL – ADDUCE FURTHER EVIDENCE – where appellant husband seeks to provide further evidence – application adjourned to hearing of appeal. FAMILY LAW – COSTS – order that appellant husband pay the respondent wife’s costs of application save for costs of further evidence application. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Mr Everett |
| RESPONDENT: | Mrs Everett |
| FILE NUMBER: | BRC | 2627 | of | 2009 |
| APPEAL NUMBER: | NA | 7 | of | 2013 |
| DATE DELIVERED:: | 11 September 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 11 September 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 January 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 45 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr T Matthews |
| SOLICITOR FOR THE APPELLANT: | HopgoodGanim |
| COUNSEL FOR THE RESPONDENT: | Ms C Carew |
| SOLICITOR FOR THE RESPONDENT: | Nita Stratton-Funk & Associates |
Orders
The applications contained in paragraph 1 and 2 of the application filed on 5 September 2013 be dismissed.
The application in paragraph 3 of the application filed on 5 September 2013 be adjourned to the hearing of the appeal before the Full Court on 19 September 2013.
The appellant pay the respondent’s costs of the application filed on 5 September 2013 save for the costs of the further evidence application (paragraph 3) to be reserved to the Full Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Everett & Everett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 7 of 2013
File Number: BRC 2627 of 2009
| Mr Everett |
Appellant
And
| Ms Everett |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an application filed on 5 September 2013 on behalf of the appellant husband seeking the following orders:
1.That the hearing listed on 19 September 2013 in respect of the Notice of Appeal filed 21 February 2013 and the Notice of Cross Appeal filed on 20 March 2013 be adjourned to the next available sittings in the Appellate Jurisdiction of the Family Court of Australia.
2.Or in the alternative to Order 1, that the Appellant in respect of the Notice of Appeal filed 21 February 2013 and the Respondent to the Notice of Cross Appeal filed on 20 March 2013 have leave to attend the hearing listed on 19 September 2013 and to be cross-examined by telephone.
3.That the Appellant in the Notice of Appeal filed 21 February 2013 and the Respondent to the Notice of Cross Appeal filed on 20 March 2013 shall have leave to adduce fresh evidence in accordance with paragraphs 14 to 19 of the Affidavit of [Mr Everett] filed contemporaneously with this Application.
4.That the Respondent pay the Applicant’s costs of and incidental to this application.
5.Any further or other Order this Honourable Court deems meet.
background
The appeal is from orders made by Federal Magistrate Demack (as she then was) on 25 January 2013.
The orders were pursuant to s 66L of the Family Law Act 1975 (Cth) (“the Act”) providing that by way of adult child maintenance the appellant pay certain moneys for his daughter until she completes her tertiary education. The moneys included a weekly cash payment, the cost of private health insurance and the costs of any gap.
Paragraph 1(e) of those orders provided as follows:
e.A lump sum in the amount of ten thousand dollars ($10,000) directly to [the adult child] to enable [the adult child] to purchase a motor vehicle for transport to and from University.
The husband who is the appellant filed an appeal on 21 February 2013 and the respondent wife filed a cross appeal on 20 March 2013.
The appeal is ready to be heard as the appeal books have been filed and each party has filed their respective summary of argument. The appellant filed his summary on 28 June 2013, the respondent on 26 July 2013 and the appellant filed a summary in response to the cross appeal on 16 August 2013.
The application apparently first arose because the appellant has made plans to be overseas when the matter is due to be heard, which is next week on Thursday, 19 September 2013. The travel had apparently been booked since September 2012. The solicitor for the appellant explains in her affidavit filed 5 September 2013 that she was notified on 19 August 2013 by the Appeals Registrar that the appeal would be heard on 19 September 2013.
As the travel arrangements were made a year ago, one can only observe that it is a great pity this was not conveyed to the Appeals Registrar at an earlier time who, no doubt, would have done her best to accommodate the parties. It may have been possible to have the appeal in the next sittings.
Not surprisingly, at the directions hearing on 15 April 2013 the Appeals Registrar was unable to say when the appeal would be heard other than to indicate to the parties when the next appeal sittings were which was August, September and November 2013 or even possibly next year.
On 27 August 2013 the solicitors for the appellant asked the respondent, who is the cross appellant if she would agree to an adjournment to the next sittings. The respondent did not agree. In my view the refusal was entirely reasonable. It was for a number of reasons including that counsel engaged on behalf of the respondent may not be available on the next occasion.
It is not apparent to me why it was thought necessary for the appellant to be present in court personally for the hearing of the appeal. Counsel had been engaged to appear for him. The obvious solution would have been for him to participate by telephone. There is no reason for this court to make special orders in that respect. It is unlikely, this being an appeal, that his solicitors would need to take instructions from him, but should that be necessary no doubt that could also have been done by telephone.
As mentioned earlier an application has also been made to file and adduce further evidence on the appeal. This relates to the question about a motor vehicle the parties’ daughter has been seen to be driving. For reasons which are impossible to understand it was thought that the appellant may need to be present for cross-examination in relation to this issue. If the further evidence is admitted by the Full Court and if it becomes clear that it is controversial, then should the appeal be allowed, that is, the grounds or cross-appeal be made out most likely the effect of that would be that the matter would be remitted for rehearing. This court does not deal with controversial evidence.
Understandably the response filed 10 September 2013 on behalf of the wife asks that the application be dismissed and she also asks for costs. Unfortunately, that seems to now be the major issue between the parties. The wife in her affidavit explained that she was anxious to see an end to this litigation, it having commenced in July 2008. Her position is entirely understandable.
As to the application for further evidence, the respondent does not dispute that she purchased the motor vehicle to which the appellant apparently refers. She contends that it was purchased with her money entirely and explains how the parties’ adult daughter used the money given to her by the appellant and by the child’s paternal grandmother as birthday presents.
The factual matters contained in the respondent’s affidavit were conveyed to HopgoodGanim the appellant’s lawyers on 6 September 2013. It is contended that in some way it was necessary to pursue the application for further evidence today because a week had expired from the time an admission was sought in the letter from HopgoodGanim to the solicitors for the wife in relation to these facts about the motor vehicle. I must say it seems wrongly it was thought that this application might in some way be dealt with today. If that was the case it was entirely misconceived.
A single judge of the appeal division is most unlikely to ever deal with an application to adduce further evidence. The reason being for that is that a cursory glance at CDJ v VAJ (1998) 197 CLR 172 makes it entirely obvious that an application for further evidence must be considered with the entirety of the appeal. I should add that the letter from the wife’s solicitors also made it clear that the appellant would not be required for cross-examination at the appeal hearing.
conclusions
So in conclusion apart from the application to adduce further evidence the application filed on behalf of the appellant is entirely without merit and should be dismissed.
There is no apparent disadvantage to the appellant in the appeal being heard in his absence. There is significant disadvantage to the respondent and considerable disruption to the conduct of appeal listings if, so close to the hearing of appeals, matters are adjourned. As mentioned, the appellant can make arrangements to listen to the proceedings by telephone at his expense. It seems that it was only yesterday that it was appreciated by the solicitors for the respondent that the application for the adjournment would not be pursued. Unfortunately counsel, no doubt, had been briefed by then and appeared on this application.
As I hope I have made it clear the application to adduce further evidence will be dealt with as part of the appeal.
costs
The only matter with which I really need to deal with now is the question of costs. An application for costs was made on behalf of the wife. In this case there are circumstances justifying an order for costs in relation to paragraphs 1 and 2 of the application. The question of the costs of the application to adduce further evidence can be considered by the Full Court when the merits of the appeal are considered in their entirety.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 11 September 2013
Associate:
Date: 18 September 2013
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