Gupta and Gupta - [2018] FamCAFC 71

FAMILY COURT OF AUSTRALIA

GUPTA & GUPTA

[2018] FamCAFC 71

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Adjournment - Application for adjournment made by appellant by email to the registry two days before the appeal hearing – Inadequate medical evidence – Where the appellant was able to attend court before the primary judge and prepare applications and affidavits during the time covered by his medical certificate – Where the appellant also sought an adjournment on the basis that he had not adequately prepared his appeal – Where the appellant had ample time to prepare his appeal – Application for adjournment dismissed.

Family Law Act 1975 (Cth) s 102QB
Family Law Rules 2004 (Cth) rr 22.13(3), 22.30

Gupta & Gupta (No. 2) [2017] FamCAFC 232

APPLICANT:

Mr Gupta

RESPONDENT:

Ms Gupta

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

PAC

5828

2008

APPEAL NUMBER:

2017

DATE DELIVERED:

12 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Pascoe CJ, Ryan & Aldridge JJ

HEARING DATE:

12 April 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 August 2017

LOWER COURT MNC:

[2017] FCCA 1843

REPRESENTATION

THE APPLICANT:

No appearance

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

The appellant’s application for an adjournment be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gupta & Gupta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 95 of 2017
File Number: PAC 5828 of 2008

Mr Gupta

Applicant

And

Ms Gupta

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

The appellant, Mr Gupta (“the father”), by a series of emails sent to the appeals registry, seeks an adjournment of the appeal on the grounds that he is not well. The respondent mother, Ms Gupta (“the mother”) and the Independent Children’s Lawyer (“ICL”) oppose the adjournment.
The father appeals against parenting orders made by Judge Hughes on 11 August 2017. The orders provide that the mother is to have sole parental responsibility for the parties’ two children, who were born on 8 February 2005 and 19 May 2009. The children are to live with the mother and are not to spend any time with the father unless the parties otherwise agree in writing. The father was permitted to send gifts, cards and letters to the children once every three months and on their birthday or naming day and Diwali. The father was also restrained from approaching or entering the home of the mother and the children, the workplace of the mother or her husband or the school attended by either of the children.
Also on 11 August 2017, but separately, the primary judge restrained the father pursuant to s 102QB of the Family Law Act 1975 (Cth) from commencing any further family law proceedings involving the mother or the children without first obtaining the leave of the Court (“the s 102QB order”).
The father’s Notice of Appeal filed on 6 September 2017 purports to appeal against that order, but none of the grounds of appeal is directed to it, save for, perhaps, ground 7. This merely states: “[r]equest leave to file an amended application at a later stage”.
It is not a proper ground of appeal as it does not identify or even attempt to identify a suggested error by the primary judge. In his Summary of Argument filed on 7 March 2018, the father set out different “grounds of appeal”. These “grounds” do not refer to the order restraining the father from commencing proceedings without leave. The submissions themselves bear little relation to the grounds in the Notice of Appeal or any “grounds” noted in the submissions themselves. The submissions themselves also make no reference at all to the s 102QB order.
The conduct of the appeal by the father has not been entirely without blemish. He failed to file a draft appeal index by 4 October 2017, and the appeal was deemed to be abandoned (r. 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”). On 13 November 2017, Ainslie-Wallace J reinstated the appeal (Gupta & Gupta (No. 2) [2017] FamCAFC 232).
On Tuesday 10 April 2017 at 4.32 pm, the father sent a letter to the Appeals Registrar seeking an adjournment of the hearing of the appeal. The letter was also sent to the mother and to the ICL. It stated:
Dear Sir/Mam,
Please see attached Medical Certificate. Dur to severe migraine, I am unable to represent myself on 12th April 2018 Appeal Hearing.
Thus request for an adjournment. Apologies for the inconvenience caused.
(As per the original)
The letter did not seek to explain why it was that the father expected to be still suffering from a migraine in two days’ time. The enclosed medical report is from a doctor in Strathfield and indicates that it was “completed on 10/4/2018”. The report states:
THIS IS TO CERTIFY THAT
Mr [Gupta]
IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD
Tuesday, 10 April 2018 TO Thursday, 12 April 2018 INCLUSIVE
He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION
(As per the original)
The report does not begin to identify the medical treatment or the reason for it being provided. It does not seek to explain why the condition or the treatment renders the father unfit to continue his usual occupation. The report does not state what the doctor understood the father’s usual occupation to be. I would therefore afford the certificate very little weight.
In response to the father’s letter, he, the mother and the ICL were informed by the registry that:
Please be advised that you are instructed to appear tomorrow to make the adjournment application with proper evidence. If the application is dismissed, the appeal will proceed tomorrow.
The following reply was received from the father:
I do acknowledge your email. However I should state that I am not in a position to appear for this appeal tomorrow as I am on medications and sleep deprived. This appeal is important to me and I have worked and put lot of time and effort it preparing the documents.
I also personally feel that the summary arguments prepared by me doesn't cover the entire gamut of issues that a document should be. I have faced lot of issues since June 2015 and since it a broad area and being legally ignorant it is all the more important that I prepare and present this case properly and appropriately to the full court.
In the past my appeals have not been fruitful and I do not want one more to be dropped.
Thus I am not in a position to appear and sincerely and humbly request the full court to grant me leave and adjourn the matter for 2 weeks if possible.
The father’s letter adds little to the knowledge of his medical condition. Indeed, on one view, being “on medication and sleep deprived” is not entirely compatible with suffering from a migraine. We could have been enlightened by some medical evidence as to this, but we were not.
The mother also wrote to the registry. She enclosed a judgment from the primary judge of which she said she was not previously aware. The judgment is the primary judge’s reasons for refusing the father leave to institute family law proceedings against the mother. The judgment makes it clear that the proceedings were heard and determined at the Federal Circuit Court of Australia at Parramatta on 10 April 2018. This was, of course, the first day of the period during which the doctor opined that the father was unfit to continue his usual occupation.
It is possible that some matter arose after the hearing that led to whatever disability the father was suffering from arising, but the fact that the father could prosecute a hearing on 10 April 2018 without explanation greatly weakens his case for an adjournment on medical grounds.
Part of the orders made by the primary judge on 10 April 2018 were orders noting that the father’s “application for a stay of the orders of 11 August 2017 pending appeal is withdrawn and dismissed”. Notwithstanding that, the father declined to prosecute his application for a stay.
He has provided to the ICL a draft Application in a Case which seeks a stay of the orders made on 11 August 2017. In support of that application, he has provided to the ICL an affidavit sworn by him at Strathfield on 11 April 2018; thus, not only was the father in a position to conduct a hearing in Court on 10 April 2018, the first day of the period covered by the medical certificate, he was well enough to prepare on the second day of the period covered by the medical certificate an Application in a Case. He was also then able to attend upon a Justice of the Peace to have the affidavit sworn. This greatly diminishes any suggestion that he is unable to conduct an appeal.
Finally, this morning, the father sent a further letter to the registry as follows:
Dear Registrar,
Good Morning and please excuse my response on this email. I have attached a medical certificate on 10.04.16 and also enclosed to this email for your records.
I would also like to make a request to the Honourable Judges:
Sirs,
I have attached a medical certificate and I am not in a proper medical condition to present myself today.
Being self represented it is all the more important for me to present this case in its entirety and with a balanced stature of mind. The prescribed medication are affected my presence of mind and health.
In addition to my medical condition, I have also realised that the Summary of Arguments are not prepared in the desired format and also do not cover the entire gamut of issues. Even the orders sought needs to be amended.
There are also exhibits that are also not filed at this point.
I would also like to induce further evidence, to support my grounds.
There is also an application in a different court that is being prepared, filing of ATO, Child Support matters that may perhaps influence today’s hearing and thus sincerely wish that the matter be adjourned.
My apologies for the inconvenience to you all and in the interests of justice, I plead this matter to be adjourned.
(As per the original)
Once again, the medication that is said to affect the presence of his mind and health is not identified. His medical condition is again not identified. There is no further elaboration on his medical condition. The letter also makes it quite clear that there is now a further basis for the adjournment that he seeks: namely, that he is not in a position to conduct the appeal and that it has not been prepared properly.
As to that, I note that orders of the Court providing directions for the preparation of the appeal were made on 13 December 2017. On 9 March 2018, the registry advised the parties, including the father, that the appeal would be heard today. The father was again reminded of his obligations in relation to preparation of the appeal in that letter. In other words, the father has been given every opportunity properly to prepare the appeal, and I do not consider that an adjournment of the appeal should be granted on that ground.
The father has not appeared today. At the request of the Court, the ICL telephoned the father. The father informed the ICL that he did not propose to attend today and declined a suggestion that he could attend by telephone. He told the ICL that he needed an adjournment because he was not well and because the appeal was not ready.
Rule 22.30 of the Rules makes it clear that the Court can proceed in the absence of the father. I am not satisfied that the father’s evidence discloses a genuine medical reason for an adjournment. The medical report has little weight, and the father varyingly says he has a migraine or is on medication and is sleep deprived.
His conduct in prosecuting an application in court on 10 April 2018 and preparing, apparently, on 10 April 2018 and 11 April 2018 an Application in a Case and accompanying affidavit and attending upon a Justice of the Peace suggests that he can manage court proceedings. Therefore, there is little basis, in my opinion, for granting an adjournment. However, I would also take into account the fact that any adjournment would have adverse financial consequences for the mother and the ICL and would cause the mother and, most likely, the children, who are of an age to be aware of these proceedings, further stress and anguish.
This is made graphically clear by the mother’s written submissions:
This will be my 63^rd appearance in different courts in last 11 years since 2007. I had been legally represented up until 2015 for all the court events. After 2015 I simply cannot afford to invest any more time and money in legal battle wherein the Appellant is wasting time and resources of the Court and myself. The appellant is just dragging the case for last 11 years without any basis what-so-ever. The matter has been to the court many times, diligently run the court process, and after careful considerations the orders were made by different honourable judges in different courts. But the Appellant keeps on appealing on the same things again for harassing me and my family. I have 3 children, I have my life to lead, look after the bread and butter for my family. It has been 11 years I have been dragged into different court cases across different locations by the appellant which is never perused by him as per the court guidelines and Jurisdiction. It is a sheer harassment to me and my family. I have to compromise my work, finances and children to prepare for the court cases, attend court hearings for a case which doesn’t have any reasoning nor has any future benefits for my children.
Procedural fairness is a two-way street, and I consider that it would not be in the interests of justice in these circumstances for the adjournment to be granted. I propose therefore that the adjournment application be refused.

Ryan J

I agree with the reasons given by Aldridge J and the order his Honour proposes.
I would also add that in relation to the Application in a Case and affidavit prepared by the father yesterday for filing in the Federal Circuit Court, there was nothing pressing about the subject matter of that application which would justify it being given his attention yesterday, rather than him attending to whatever final preparations he now thinks might be appropriate for the appeal. It is quite plain to me that the appeal has been given insufficient attention by the father over the last couple of days, and this weighs further against the application for an adjournment being granted.

Pascoe CJ

I agree with the reasons given by Aldridge J and the comments by Ryan J. Accordingly, the application for adjournment is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Pascoe CJ, Ryan & Aldridge JJ) delivered on 12 April 2018.

Associate:

Date: 19 April 2018