Fortnum & Fortnum

[2008] FamCAFC 3

FAMILY COURT OF AUSTRALIA

FORTNUM & FORTNUM [2008] FamCAFC 3

FAMILY LAW – APPEAL – Application for extension – Application dismissed

APPELLANT: MR FORTNUM

RESPONDENT: MS FORTNUM

INDEPENDENT CHILDREN’S LAWYER: LAURIE ROBERTSON

FILE NUMBER: SYF 631 of 2002

APPEAL NUMBERS:	EA	66	of	2006
EA	18	of	2007

DATE DELIVERED: 14 January 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: BRYANT CJ, KAY AND WARNICK JJ

HEARING DATE: 21 August 2007

LOWER COURT JURISDICTION: Family Court

LOWER COURT JUDGMENT DATE: 16 June 2006

LOWER COURT MNC: [2006] FamCA524

REPRESENTATION

APPELLANT: Appellant in person

COUNSEL FOR THE RESPONDENT: Mr Moss

SOLICITOR FOR THE RESPONDENT: DGB Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Anderson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Roberston Solicitors

Orders

1. That the application of the father filed 5 October 2007 be dismissed.

2. That the appeals EA66 of 2006 and EA18 of 2007 be set for hearing at the first available Sydney sittings.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Fortnum & Fortnum.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 66 of 2006, EA18 of 2007

File Number: SYF 631 of 2002

MR FORTNUM

Appellant

And

MS FORTNUM

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 16 June 2006 Cohen J ordered that [Mr Fortnum] have no contact with his son, [X Fortnum], born in December 1996.

2. The father filed an appeal against that order on 14 July 2006.

3. There have been a number of procedural hearings in respect of the appeal, directed to getting the appeal books filed.  Notwithstanding non-compliance with some of the directions made at those hearings, the appeal was listed for hearing on 21 August 2007 when however, it did not proceed and the following orders (among others) were made:

   1.At the Court’s expense each of the parties and the Court be provided with a CD-ROM copy of the evidence and submissions of the hearing before the Honourable Justice Cohen and if requested, the appellant father be provided with the facilities to listen to the CD-ROM.

   2.If the appellant father wishes the Court to meet the cost of any relevant transcript he must, within 28 days of the provision to him of the CD-ROM, file and serve upon the legal representatives for the respondent mother and the Independent Children’s Lawyer an application supported by an affidavit setting out:-

   i)the passages of the transcript he wishes to have transcribed by reference to the date and time of the evidence;

   ii)explain the relevant of the passage of evidence to the grounds of appeal; and

   iii)set out the reasons why he seeks to have the Court provide the transcript.

   3.This matter be listed before the Honourable Justice Boland on 22 October 2007 at 10:00am for determination of any application filed pursuant to Order 2 above and for re-listing before the Full Court for the hearing of the appeal.

   …

4. On 5 October 2007 the father filed an application for an “extension of time to prepare transcript requirements”.  In an affidavit in support the father deposed:

   At this time I am finding it extremely difficult to listen to the sound files supplied by the Family Court because it is not just a case of listen and note, but also to remember what is a series of very painful lies and events, a most unpleasant task.

   In the past I have suffered deep depression because of the Family Court actions and findings along with my efforts to meet the Family Courts procedural requirements.  I must be careful of my health, I am no use to my children when I am dead.

   Unfortunately I do not have the staff that I can hand this task to, or do I have the money to hand it to a secretarial service which might make it easier for me and quicker for the Court.

5. Attached to the father’s affidavit were a series of medical reports, essentially establishing a history of atrial fibrillation and (possibly) an association of onset with stress.  The most recent report, from [a] Hospital, dated 6 October 2006, recorded that on that day the father had presented to the emergency department and was diagnosed with atrial fibrillation.  After some treatment he reverted to normal sinus rhythm.

6. On 22 October 2007, the Full Court directed that the father’s application be dealt with by way of written submissions in accordance with the timetable set out.  Submissions have been received from the mother and the independent children’s lawyer.  No submissions have been received from the father.

7. We consider the father’s application should be dismissed and the appeal set for hearing for these reasons:

   (i)The absence of submissions by the father;

   (ii)The passage of time since the filing of his application and that further time will pass between now and the hearing of the appeal, during all of which the father has had, and will have, further opportunity to examine the recording of proceedings at trial;

   (iii)The evidence put forward by the father in support of his application carries little weight.  The medical evidence is outdated and not necessarily linked to the father’s present state of health;

   (iv)The father does not say what progress he has made so far in listening to the recordings;

   (v)The father does not indicate any timetable for further prosecution of the appeal;

   (vi)It is in the interests of the other party and the children concerned that these proceedings be resolved promptly; and

   (vii)The lengthy delays that have already occurred in the prosecution of this appeal.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  14 January 2008