Farmer and Rogers
[2012] FamCAFC 156
•11 September 2012
FAMILY COURT OF AUSTRALIA
| FARMER & ROGERS | [2012] FamCAFC 156 |
| FAMILY LAW – APPEAL – PROCEDURE – Application for dismissal – Where the appellant’s summary of argument does not comply with the requirements of Rule 22.22(2) and the respondent and the Independent Children’s Lawyer could not reasonably be expected to respond to the summary in its current state – Where the appellant is self-represented and indicated willingness and ability to amend the notice of appeal and summary of argument – Where the parties agreed to an extension of time to the procedural requirements. |
| Family Law Act 1975 (Cth) Family Law Rules 2004, rule 22.22 |
| APPELLANT: | Ms Farmer |
| RESPONDENT: | Mr Rogers |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC 2790 of 2009 |
| APPEAL NUMBER: | NA 101 of 2011 and 44 of 2012 |
DATE DELIVERED: | 11 September 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 11 September 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 29 November 2011, 17 April 2012 |
| LOWER COURT MNC: | [2011] FMCAfam1277 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The Appellant file and serve on or before 2 October 2012 an amended notice of appeal, amended summary of argument and list of authorities in each appeal
NA 101 of 2011 and NA 44 of 2012.
The appeals NA 101 of 2011 and NA 44 of 2012 be dismissed if the appellant fails to comply with Order 1.
The time for filing a summary of argument and list of authorities by the Respondent and the Independent Children’s Lawyer be extended.
The Respondent file and serve on or before 23 October 2012 the summary of argument and list of authorities upon which he wishes to rely in appeals
NA 101 of 2011 and NA 44 of 2012.
The Independent Children’s Lawyer file and serve on or before
30 October 2012 the summary of argument and list of authorities upon which they wish to rely in appeals NA 101 of 2011 and NA 44 of 2012.
The costs of the Respondent’s application be reserved to the Full Court
The Respondent be at liberty to re-list the application filed 6 August 2012 on
7 days notice to the Appellant and the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Farmer & Rogers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 101 of 2011 and 44 of 2012
File Number: BRC 2790 of 2009
| Ms Farmer |
Appellant
And
| Mr Rogers |
Respondent
REASONS FOR JUDGMENT
This is an application for dismissal of the mother’s appeals for failure to comply with Rule 22.22(2) of the Family Law Rules 2004 (“the Rules”). That Rule relevantly provides that a summary of argument must: set out each ground of appeal and for each ground a statement of the arguments setting out the points of law or fact and the authorities relied on, set out the orders sought, and not exceed 10 pages.
The procedural orders in the appeal made 25 June 2012 required the mother to file her summary of argument by 3 August 2012. The mother filed her summary of argument in time on 2 August 2012, however the summary clearly does not comply with any of the requirements above. The notices of appeal filed on 20 December 2011 and 15 May 2012 respectively are similarly unstructured and the grounds of appeal incomprehensible.
There are two summaries of argument, which have been filed together in both appeals. The first in relation to appeal NA 101/2011 is approximately 26 pages long and the second in relation to appeal NA 44/2012 is five pages long. Neither document is structured by reference to the grounds of appeal or sets out the orders sought.
Neither the respondent father or the Independent Children’s Lawyer, nor the Court could be reasonably expected to interpret and respond to the mother’s appeal based on her material in its current state.
By his application filed 6 August 2012 the father seeks the appeal be dismissed, or alternately that the mother be required to provide a summary of argument consistent with the Rules and the timeline for the filing of his and the Independent Children’s Lawyers summary of argument be adjusted.
The Independent Children’s Lawyer supports the husband’s application, and the alternative proposal of adjustments to the timeline.
The mother is self-represented and expressed in her response filed
10 September 2012 and before me the willingness and ability to amend her summary of argument if required to do so. I have explained to her at length the requirements of the Rules and she is confident she will be able to amend both the notices of appeal and the summary of argument within the time I have proposed. Each party agreed to the timeline contained in these orders.
It is of course always to be preferred that appeals be heard on their merits. In the circumstances of this case the mother should be given the opportunity to file proper materials.
Should the mother fail to comply with these orders both appeals should be dismissed. The respondent may seek to re-list his application should there be further difficulties with the preparation of the appeal.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 11 September 2012.
Associate:
Date: 11 September 2012
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