Jacob and Barker - [2011] FamCAFC 37

FAMILY COURT OF AUSTRALIA

JACOB & BARKER

[2011] FamCAFC 37

FAMILY LAW – APPEAL - APPLICATIONS IN AN APPEAL – where the father failed to comply with orders preparing the appeal for hearing – application by the mother seeking that the appeal be dismissed – application by the father seeking various orders including that the “program” preparing the matter for hearing be revised – father given time to comply with orders – self executing order made – hearing date vacated.

APPELLANT:

Mr Jacob

RESPONDENT:

Ms Barker

FILE NUMBER:

ADC

2344

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

11 February 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

11 February 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

25 August 2010

LOWER COURT MNC:

[2010] FMCAfam 1134

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Hurley

SOLICITOR FOR THE RESPONDENT:

Holding Redlich

Orders

The father obtain the transcript of the hearings on 10 February 2010, 26 March 2010, 31 March 2010 and 25 August 2010 and provide copies thereof to the Court and to the respondent by close of business on Friday 4 March 2011.
The father file and serve a written summary of argument and list of authorities (if any) by close of business on Friday 4 March 2011.
The father file and serve any application to lead further evidence, together with any affidavit in support thereof, by close of business on Friday 4 March 2011.
The mother file and serve a written summary of argument and list of authorities (if any) by close of business on Monday 28 March 2011.
The mother file and serve any application to lead further evidence, together with any affidavit in support thereof, by close of business on Monday 28 March 2011.
The hearing on 25 February 2011 be vacated.
The Notice of Appeal be listed for hearing before the Honourable Justice Strickland commencing at 10:00am on 8 April 2011 with a time estimate of half a day.
In the event that the father fails to comply with either paragraphs 1 or 2 hereof the Notice of Appeal filed by the father on 22 September 2010 be dismissed and the hearing date be vacated.
The mother’s Application in an Appeal filed on 3 February 2011 be dismissed.
The father’s Application in an Appeal filed on 9 February 2011 be dismissed.
The mother’s costs of and incidental to the hearing today and the applications referred to be reserved to the adjourned hearing date.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 69 of 2010
File Number: ADC 2344 of 2009

Mr Jacob

Appellant

And

Ms Barker

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have before me two Applications in an Appeal, one filed on 3 February 2011 by the respondent mother and one filed on 9 February 2011 by the appellant father.
I made orders on 22 December 2010 setting the father’s appeal down for hearing on 25 February 2011, and I further made orders to prepare the matter for that hearing, including for the father to obtain certain transcript, and for the father to file and serve a written summary of argument and a list of authorities. He was to do that by 28 January 2011.
He failed to comply with those orders and that then led to the Application in an Appeal filed by the respondent mother in which the mother sought – appropriately in the circumstances – dismissal of the father’s appeal for failure to comply with the orders of 22 December 2010. As I say, the father had failed to comply with my orders and it is also worth noting that he made no application whatsoever to extend the time or to vary the regime. Prima facie, he simply let the date of 28 January 2011 pass without doing anything. It is understandable in those circumstances that the mother would make the application that she has.
In any event that application has obviously prompted the father into finally making an application to this Court about this issue.
However, the orders that the father seeks in his application unfortunately go further than just addressing the issue which is relevant today. The relevant orders that he seeks for today are – and using his terminology – firstly, that the program set on 22 December be revised, and secondly, that the wife’s application be refused or deferred.
There are another three orders sought though, which I propose to immediately dismiss. They are firstly, that the Registry be directed to provide the parties with the complete orders of 22 December 2010. I confirm that the orders that Mr Jacob has and which he, himself, annexed a copy of to his affidavit, are the complete orders of 22 December 2010. Therefore, I dismiss that application specifically.
It seems, reading Mr Jacob’s material, that what he is complaining about is not knowing what parts of an affidavit that he filed on 22 December 2008 were not accepted as being inadmissible. The problem with that complaint is that Mr Jacob was present on 22 December when I painstakingly took him through his affidavit and identified in my reasons for judgment given orally on that day the paragraphs that I was not prepared to receive. I note also that in an attempt to assist the father the registry provided him with a copy of the original affidavit containing my markings as to those paragraphs that I was not prepared to receive on the ground they were inadmissible.
Mr Jacob– both in his affidavit and initially today – complained long and loud about that suggesting that the Registry staff were “morons” and alleging he could not follow the “graffiti” on the document. He has now apologised for those remarks and I accept that apology.
In any event, that is the position and Mr Jacob will be further assisted by me now being in a position to provide both him and Ms Hurley with my settled reasons for judgment delivered on 22 December 2010. As I explained to Mr Jacob, the process is I deliver my reasons orally, then the transcript of those reasons comes back to me. That part of the transcript is not made available to the parties, because it contains my reasons which need to be settled. Once we receive the transcript of my reasons they are settled, typed and distributed to the parties. Thus, when Mr Jacob reads those reasons that will remind him of what he actually heard in person on 22 December 2010. In any event, I repeat, I simply do not accept Mr Jacob complaints that he did not know the outcome of those issues in relation to his affidavit. And I stress, as I have already in discussions between bar and bench today, that that affidavit, in any event, is irrelevant now to the appeal.
I return to the orders sought by Mr Jacob. He also sought orders that his appeal number SA 10 of 2010 be reopened and that it be consolidated with the current appeal. However, the appeal number SA 10 of 2010, was finalised by orders made on 24 May 2010 and it is not open to Mr Jacob to make an application to re-open that appeal for hearing. Thus I would dismiss that application.
That said, Mr Jacob has also filed an affidavit in support of his application. As unfortunately has occurred in this matter to date, that affidavit is less than helpful in terms of addressing the issue at hand. I have read it carefully though and I take it into account to the extent that I can.
Mr Jacob is making a number of complaints about the Registry and the treatment of his affidavit. He also says that he still needs to consider various issues, and I imply from all that that he is putting these things forward as his reasons for not complying with the orders.
Now, it is a long bow to draw, but I will give him the benefit of the doubt. I say that though with much scepticism and suspicion about Mr Jacob and his motives, and whether he is indeed intending to pursue this appeal, given that he filed it on 22 September 2010, that it has been before the Court now on a number of occasions when Mr Jacob has not attended to matters that have been requested of him, and we are still, in February 2011, at a stage where he has not complied with the most recent orders made to get the appeal heard, and further bearing in mind it is his own appeal.
Mr Jacob, from the bar table, assures me that he wants his appeal heard and that he will now comply with the orders that I make, and I indeed hope that that is what will happen, because I propose to make orders that are self-executing. Reluctantly – and bearing in mind the prejudice that this outcome will visit upon the mother – I propose to give Mr Jacob another opportunity to do what he says he intends to do, and that is to comply with the orders.
However, and as I said, I propose to make orders that are self-executing. In other words, I propose to give Mr Jacob a period of time to file and serve the necessary documents, but if he does not do so then his appeal will be dismissed without any further hearing.
Given all that, I have addressed with Ms Hurley and Mr Jacob when this matter can now be heard, and on the basis that I propose to adjourn the matter, the listing for 25 February 2011 needs to be vacated. A date has been fixed upon in April 2011 and I have determined a regime for the filing of documents which I will now set out in an order.
Finally, I confirm that the other orders made on 22 December 2010 continue and I am particularly referring to paragraph (2) wherein I set out in detail the documents to be before the Court for the purposes of the appeal.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 11 February 2011.

Legal Associate:

Date: 1 March 2011