Fryer & Fryer

[2007] FamCA 820

FAMILY COURT OF AUSTRALIA

FRYER & FRYER [2007] FamCA 820

FAMILY LAW – APPEAL FROM FAMILY COURT OF AUSTRALIA – ADJOURNMENT – Application for adjournment granted. Possibility of the husband otherwise not having access to legal counsel, his material on appeal and prejudice to the wife discussed.

APPELLANT: MR FRYER

RESPONDENT: MS  FRYER

FILE NUMBER: MLF 1388 of 2005

FILE NUMBER: SA 5 of 2007

DATE DELIVERED: 29 May 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Coleman, May and Thackray JJ

HEARING DATE: 29 May 2007

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr R.J. Spicer

SOLICITOR FOR THE APPELLANT: Harwood Andrews Lawyers

COUNSEL FOR THE RESPONDENT: Ms S.L. Johns

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie & Associates

Orders

1. That upon the appellant who is present in Court and represented by Counsel and his attorney giving undertakings in the terms of Exhibit “A”, the Court makes orders in accordance with Exhibit “B”.

1. That the hearing of the appellant husband’s appeal be adjourned to the September 2007 sittings of the Full Court in Melbourne with such priority as the Appeals Registrar is able to facilitate.

1. That the appellant husband pay the respondent wife’s costs of today, assessed in the sum of $3000.

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 Fryer & Fryer

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF1388 of 2005
APPEAL NUMBER: SA 5 of 2007

MR FRYER

Appellant

And

MS FRYER

Respondent

REASONS FOR JUDGMENT

1. This is an application by the appellant husband to adjourn the hearing of his appeal against orders made by the learned trial Judge on 15 December 2006. The application is resisted by the respondent wife.

2. For reasons which I will briefly give, not without considerable reservations, and on strict terms and conditions to which reference will shortly be made, I would allow the adjournment.

3. As learned counsel for the appellant husband, with his customary candour, has made clear, in large measure the appellant husband is the author of the misfortune which would confront him were his application for adjournment to be refused today, and he be obliged to endeavour to present his appeal unrepresented, as counsel has informed us would be the consequence of the application being refused.  

4. As a reading of the transcript of discussion with counsel would confirm, the application is not without complexity. I do not propose to restate the great bulk of the matters which have been agitated before us. In my view it is sufficient to refer to what emerged from the discussion earlier today as the critical issues in terms of the exercise of discretion to grant or refuse an adjournment.

5. On behalf of the appellant husband, in my view, there are two factors of abiding significance. The first is that if the application is refused the appellant husband would be obliged to present his appeal without the benefit of legal counsel. That task would never be easy, having regard to the authorities which govern an appeal to this court, but in this case that task would be even more difficult for the reasons which learned counsel for the appellant husband frankly conceded in the course of submissions. In his conduct before the trial Judge when unrepresented, the appellant husband adopted a course which, to put it neutrally, cannot assist his already difficult task in this court.

6. It is trite to observe that litigants appear in person in courts throughout this land, including the High Court, with increasing frequency, and the fact that the litigant is unrepresented or may be unrepresented is not of itself decisive of this application, but it is a factor and one of concern that realistically it is difficult to see how, if this appeal were to be forced on, it would be other than an appeal in name and not in substance.

7. With respect to the appellant husband, it is inconceivable on the material emerging from the appeal books that he would be able to articulate anything resembling grounds of appeal.

8. The second issue in my thinking arises out of the consequences of the refusal of the adjournment of the hearing of the appeal and what would appear on the material currently put forward by the appellant husband to be with the almost inevitable outcome of this court hearing and determining the appellant husband's appeal on that material. That being that the appeal would appear, if presented by the appellant husband on the material he has currently put forward, certain to fail.

9. That would place the appellant husband in the position where if, as is likely, he wanted to further challenge the learned trial Judge's judgment, he would have only one course to pursue, that being to apply to the High Court for special leave. Assuming that he did so, as it is likely to assume he would, and was ultimately unsuccessful about which I would not dare to speculate, that would be highly likely to delay proceedings for far longer than would the granting of an adjournment on strict terms today, it having been indicated by the Appeals Registrar that this appeal could and would be heard by a Full Court in Melbourne in the month of September this year.

10. The perhaps ironic consequence of the second factor which influences my thinking is that ultimately, although a factor in favour of an adjournment as sought by the appellant husband, it is really out of a concern to protect the respondent wife as far as possible from adverse consequences of allowing an adjournment today that it assumes significance. It may well be that in the fullness of time, although for reasons which are well understandable the respondent wife has vigorously resisted the appeal being adjourned today, her best interest may, with hindsight, be seen to have been furthered by our granting the adjournment application than refusing it.

11. The other matter of significance arises on the other side of the record, and that is the question of prejudice to the respondent wife if the adjournment is granted. In the course of a closely reasoned and comprehensive document titled Summary of Argument Prepared on Behalf of the Respondent Wife in Relation to Appellant Husband's Adjournment Application, the respondent wife's learned counsel advanced a number of cogent reasons why the adjournment application should be refused. As noted at the outset, the appellant husband is in large measure the author of his own potential misfortune and although he has some explanation for the position in which he finds himself today, for my part I find that explanation far from overwhelming.

12. Focusing, as we have tended to in the course of discussion with counsel, on the question of prejudice to the respondent, the following matters seem to emerge as significant:  for all practical purposes there are no current orders impeding the respondent wife's ongoing endeavours to enforce the trial Judge’s orders and nothing which this court granting the adjournment application would have that effect. Indeed, on balance, if the undertakings proffered by the appellant husband were accepted, and orders made in the terms and with the amendments the court indicated to be required were made, it may even be that, albeit receiving nothing to which the wife has not for a significance time been entitled, she would be leaving the court today with some measure of success on enforcement beyond that which to date has been possible.

13. The distinction between this court in effect in the context of an adjournment application becoming a forum in which to seek enforcement of orders which are themselves challenged on the one hand, and applying appropriate conditions, if an adjournment is granted on the other, is not necessarily easily drawn or maintained in this particular case, for reasons which a reading of the transcript would suggest.

14. On balance, to the extent that the respondent wife is prejudiced by the adjournment application being granted, provided that the undertakings proffered are accepted by the court and orders in the terms of the draft minutes as amended are made, for my part I do not perceive the respondent wife to be prejudiced in ways that she is not already, or has not already been for quite some time.

15. Balancing the question of prejudice to the respondent wife in granting the adjournment and the two countervailing factors which, in my mind, are supportive of granting an adjournment, and not without very considerable reservations, I would grant the adjournment. That would be on the basis that the appeal is listed for hearing with priority in the September sittings of the court, that the court notes the undertaking given by the appellant husband, who is in court and represented by counsel and an attorney, which is marked as exhibit A, and that orders are made in accordance with the draft minutes as amended, which is exhibit B.

16. For those brief reasons, on those terms, I would allow the adjournment application.   

17. MAY J:   I agree with the reasons of the learned presiding Judge. I would also grant the adjournment, but on the terms and conditions that have been discussed.

18. THACKRAY J:   I also agree with the presiding Judge’s reasons. I would make the same orders. I would only make one brief observation and that is, I believe the presiding Judge indicated that the appeal, as presently before the Court, is bound to fail. I understand that was said on the basis that there are no submissions in support of the appeal and there is accordingly no material upon which the court could in fact deal with the appeal. Of course, it will remain for counsel, in due course, to advance those submissions when the matter will be more fully considered.

19. COLEMAN J:   I am indebted to Thackray J for that clarification. With hindsight I perhaps didn't make that as clear as I should. Clearly any prediction of the outcome today can only be based upon what has been presented, and with competent counsel one would expect a totally different picture in terms of what is presented, and the outcome would be determined on its merits at that time.

20. On the undertaking of the appellant husband, who is present in court and represented by counsel and an attorney, such undertaking being marked as exhibit A, and on the basis of the court making orders in terms of exhibit B as amended, the hearing of the appellant husband's appeal is adjourned to the September sittings of the Full Court in Melbourne with priority. The appellant husband is to pay the respondent wife's costs of today assessed and agreed in the sum of $3000.

21. We note that by 10 am on 30 May 2007 counsel for the appellant husband's instructing attorney will produce to the Appeals Registrar a typed transcript of exhibits A and B.       

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  14 August 2007