Grandhouse and Grandhouse - [2011] FamCAFC 133

FAMILY COURT OF AUSTRALIA

GRANDHOUSE & GRANDHOUSE

[2011] FamCAFC 133

FAMILY LAW - APPEAL – Application in an appeal – Adjournment of hearing of the appeal refused.

Family Law Act 1975 (Cth)

APPELLANT:

Mrs Grandhouse

RESPONDENT:

Mr Grandhouse

INDEPENDENT CHILDREN’S LAWYER:

Ms Adams

FILE NUMBER:

NCC

1096

2007

APPEAL NUMBER:

139

2010

DATE DELIVERED:

14 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

14 June 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 September 2010

LOWER COURT MNC:

[2010] FamCA 921

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Pender

SOLICITOR FOR THE APPELLANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr Hamilton

SOLICITOR FOR THE RESPONDENT:

Thomas Mitchell Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Burns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams & Associates

Orders

That the appellant mother’s application for an adjournment of the Full Court hearing of the appeal be refused.
That leave be granted to the appellant mother to issue subpoenae for the production of documents which were subpoenaed and produced at the hearing before the trial Judge, returnable before the Registrar at Sydney Registry by 12 noon on Tuesday 21 June 2011.
That the appellant mother be granted leave to inform any entity to whom a subpoena will be directed pursuant to these orders of the issue of such subpoena by fax transmission by 3 pm today.
That the appellant mother file and serve any amended Notice of Appeal on which she intends to rely and any outline of argument in support of her appeal by 10 am on Wednesday 22 June 2011.
That the respondent father file and serve any outline of argument 48 hours before the hearing of the appeal.
That the Independent Children’s Lawyer file and serve any outline of argument 48 hours before the hearing of the appeal.
That the costs of the appellant mother’s application be reserved to the Full Court hearing this appeal on 27 June 2011.

IT IS NOTED that publication of this judgment under the pseudonym Grandhouse & Grandhouse is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 139 of 2010
File Number: NCC 1096 of 2007

Mrs Grandhouse

Appellant

And

Mr Grandhouse

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

This is an application to adjourn the hearing of an appeal against orders of Le Poer Trench J made on 16 September 2010. The appellant in the proceedings is the mother who was unsuccessful before the learned trial Judge in parenting proceedings. The application to adjourn is resisted by Counsel for the father. The Independent Children’s Lawyer has, in the Court’s view, quite properly made no submissions on this issue, and said it is a matter for the Court.
By way of background to the Court’s refusal of the adjournment application, the following dates are of significance.
On 22 November 2010 the Court extended the time within which the appellant could file a Notice of Appeal against Le Poer Trench J’s orders of 16 September 2010.
On 11 March 2011, the appellant in the intervening period having failed to comply with directions made by an Appeals Registrar for the filing of appeal books, allowed the mother’s contested application to reinstate her abandoned appeal. On that occasion the Court made orders for the filing of appeal books by 8 April 2011. Appeal books were in fact filed on 8 April 2011.
Counsel for the appellant asserts that the appellant has fully complied with the Court’s directions of 11 March 2011. The Court has difficulty accepting that proposition having regard to the orders sought in the Application in an Appeal filed on 30 May 2011. As is clear, the appellant, for whatever reason, has been unable and, on her Counsel’s submissions, remains unable to present her appeal material in the way she and her Counsel wish to.
The respondent to the appeal has an entitlement to finality in relation to these proceedings. For reasons which now do not assume significance, and with respect to which the Court draws no inferences adverse to the appellant, whereas in the normal course this appeal would have been heard and determined by now, the appellant on her own Counsel’s submissions is not prepared. The recurring theme of the submissions of Counsel for the appellant is that the appellant “needs more time” to properly prepare her appeal. Curiously, notwithstanding what are said to be the shortcomings in the material upon which the appellant wishes to rely, it was not until 30 May 2011, when the appellant filed an application, that the record reveals the appellant as having done anything in relation to the asserted obstacles to the preparation of her appeal.
Balancing on the one hand the entitlement of the appellant to a reasonable opportunity to prepare her appeal, against, on the other hand the entitlement of the respondent to have an end to the litigation, the Court is not satisfied that to require the appellant to prosecute her appeal on 27 June 2011 would constitute a miscarriage of justice, a denial of procedural fairness or otherwise unreasonably prejudice the appellant’s entitlement to her day in court. That is not said in a vacuum, but in the context that the Court can and will make a series of orders which address the reasonable, if not all, of the issues raised by the appellant in the current application.
The appellant contends that through no fault of hers – and that may well be so – documentation that was subpoenaed before the trial Judge has not been able to be produced by her as part of the appeal record. That seems to be suggested on the basis either that the Court may have destroyed subpoenaed documentation – which seems an extraordinary situation if it be true – or, as is more probably the case, and consistent with the practices of all courts, the subpoenaed material has been returned to those who have produced it. The appellant is in no doubt as to what material she wishes to rely upon, whether it be in the context of the appeal, or an application for leave to adduce further evidence in the appeal pursuant to section 93A of the Family Law Act 1975 (Cth) (“the Act”).
As indicated, the Court will grant leave to the appellant to issue subpoenae for production of documentation which was produced at the trial before Le Poer Trench J and order that such subpoenae may be returnable at 12 noon next Tuesday 21 June 2011.
The Court does not accept that it is reasonable in the circumstances for more than a short time thereafter to be allowed in order for the appellant, and those advising her, to determine what amended grounds of appeal and arguments in support thereof, if any, will flow from production of the subpoenaed documentation. Unless one accepts, which the Court could not, that the appellant has no idea what the documentation which she wishes to re-subpoena may reveal, and that the issue of further subpoenae for production of documents is, to use the colloquial, a shot in the dark, the appellant and those advising her, ought be able, within a short time in the circumstances of this appeal, to identify what it is in that material which would give rise to further grounds of appeal, and a summary of argument in support of it.
It ought not be forgotten that whilst the Court will require that by 10.00 am on 22 June 2011 the appellant file and serve any amended notice of appeal and outline of argument in support thereof, it does not mean that the appellant is prohibited or in any way prevented from further study of the documentation during the balance of the week.
As suggested to Counsel for the appellant, the respondent has rights in this exercise. The respondent has, since September last year, when he was successful before the trial Judge, done nothing more or less than seek to retain the benefit of the discretionary judgment in his favour. As noted earlier, without suggesting fault on the part of the appellant, had this appeal proceeded in what might be styled the usual way, neither party would at this moment be likely to be in any doubt as to the fate of the appellant’s challenge to the trial Judge’s decision.
The time has come for the appeal to be heard and determined. The Court is not persuaded, particularly having regard to the indulgences provided by the orders which the Court will shortly make, that the interests of justice would not be served by the appeal remaining fixed for hearing on 27 June 2011. The application for adjournment is accordingly refused.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 14 June 2011.

Associate:

Date: 17.06.11