JACOB & BARKER - [2010] FamCAFC 128

FAMILY COURT OF AUSTRALIA

JACOB & BARKER

[2010] FamCAFC 128

FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO APPEAL – where the father seeks leave to appeal an order for the delivery up of the child – where the father failed to comply with the order and the child was subsequently returned to the mother after execution of a recovery order – where the father has failed to comply with orders preparing the matter for hearing – where the father has been granted a number of adjournments and seeks a further adjournment – where the father wishes to pursue his appeal as a matter of “principle” – where the father has failed to provide a satisfactory answer as to the basis on which the appeal should be allowed to proceed – appeal dismissed.

FAMILY LAW - COSTS – application for costs by the mother – where the father’s non-compliance justifies an order for costs – father to pay the mother’s costs.

Family Law Act 1975 (Cth)s 11F & s 117

APPLICANT:

Mr Jacob

RESPONDENT:

Ms Barker

APPEAL NUMBER:

2010

FILE NUMBER:

ADC

2344

2009

DATE DELIVERED:

24 May 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

24 May 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

10 February 2010

LOWER COURT MNC:

[2010] FMCAfam 181

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wabnitz

SOLICITOR FOR THE APPLICANT:

Townsends Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Hurley

SOLICITOR FOR THE RESPONDENT:

Holding Redlich

Orders

That the Notice of Appeal filed on 19 February 2010 be dismissed.
That the appellant pay the costs of the respondent of and incidental to the Notice of Appeal filed on 19 February 2010 such costs to be taxed or as agreed.

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 10 of 2010
FILE NUMBER: ADC 2344 of 2009

Mr Jacob

Applicant

And

Mr Barker

Respondent

EX TEMPORE REASONS

This is an application for leave to appeal filed on 19 February 2010 by the father in these proceedings. And in the way that is now provided in the Rules, the application took the form of a Notice of Appeal which contained the application for leave and, in the event that leave was granted set out the grounds of appeal and the orders sought.
Now, it is not readily apparent from the document on what basis leave to appeal is being sought. In an annexure there are “facts relied on” identified but there is no attempt to comply with the requirement that there be an error of principle or a substantial injustice established.
In any event leave to appeal was sought against one of the orders made by Lindsay FM on 10 February 2010. That order provided that:
1. The father deliver up the child [B] born […] April 1998 to the mother at 3pm this day at the Adelaide Police Station, Wakefield Street, Adelaide.
The orders went on and provided that in the event that that order for delivery up was not complied with, then the mother was given liberty to request the urgent re-listing of the matter for the purposes of the making of a recovery order and pursuant to s 11F of the Family Law Act 1975 (Cth) the parties and the child were to attend an appointment with a Family Consultant.
Now, as I understand it, what happened is that the father did not comply with that order for delivery up. The matter was duly re-listed before the Federal Magistrate and a recovery order was made. And, as I further understand it, that recovery order was executed and, ultimately, the child the subject of these proceedings was returned to the mother. Since then the child has remained living with the mother and any orders providing for the father to spend time with the child have been suspended. Separate to that there are contempt proceedings before the Federal Magistrate which have been adjourned as, indeed, all matters before the Federal Magistrate have been adjourned, at the request of the father.
As is the procedure in relation to applications for leave to appeal, the Chief Justice issued a certificate that it was appropriate for the jurisdiction of the Family Court to be exercised by a single judge. That was a certificate issued on 24 March 2010, and I was the single judge allocated to hear this matter. I waited some time, though, before listing the matter for directions given that proceedings were still on foot before the Federal Magistrate and, particularly, in relation to the recovery of the child. Once I was informed that the child had been recovered I then listed this matter for directions on 22 April 2010.
Now, on that date, Mr Townsend appeared for the father, but the father did not appear. Mr Townsend advised me that he had only just been instructed but he did not have instructions in relation to the appeal and he sought a short adjournment to obtain those instructions. The father was unrepresented before the Federal Magistrate when his Honour made the orders on 10 February 2010 and also, as I understand it, when the father prepared and filed his Notice of Appeal, but he certainly had the benefit of legal advice thereafter and indeed Mr Townsend informed me on 22 April 2010 he was the father’s third solicitor since the orders were made.
The application to adjourn was opposed, but I indicated that I was prepared to adjourn the matter. I did raise with Mr Townsend at that time though my concerns as to the merits of the application and also the merits of the proposed appeal given that, as is obvious from what I have said so far, the state of play at that time was that matters had moved on significantly since the order for delivery up. Indeed, as I say, the father had not complied with that order and a recovery order was issued and the child had been recovered pursuant to that order. To not put too fine a point on it, it seemed to me that with the subsequent events the father’s appeal was no longer of any utility.
Mr Townsend appeared to appreciate the point and said in effect that he would clarify this with his client with he sought instructions. Thus, I adjourned it to enable Mr Townsend to obtain his instructions.
I also recall that Mr Townsend informed me that one of the reasons for the adjournment that he sought was that senior counsel had been briefed, and he mentioned Mr Slattery QC, and there was an appointment that the father and Mr Townsend had with Mr Slattery in the coming days for the purposes of obtaining his opinion, not, as I understand it, specifically in relation to the appeal, but in relation to the proceedings generally. Mr Townsend indicated to me though that he would have senior counsel turn his mind to the issue of the appeal in any event. Thus, I adjourned the matter to Friday 30 April 2010 and I did that because that would allow senior counsel’s opinion to be obtained according to the advice given to me by Mr Townsend.
I also note that one of the orders I made on 22 April 2010 was that in the event that the Notice of Appeal is to proceed a copy of the same be served on the solicitors for the respondent by close of business on 28 April 2010. At that point the Notice of Appeal had not been served.
Now the matter came back before me on 30 April 2010. Ms Riley appeared as counsel instructed by Mr Townsend, and my memory is that Mr Townsend was present as well, but again the father failed to attend.
I was told by Ms Riley that senior counsel had not yet been able to provide the advice that was sought and the father sought an adjournment to 21 May 2010. That application was opposed. I explored with Ms Riley what her instructions were in relation to whether the appeal was still proceeding, and raised with her – or reminded her – of the issues that had been raised with Mr Townsend as to the merits of the application for leave to appeal and whether the appeal was pointless in the circumstances that had occurred subsequent to the orders made by the Federal Magistrate. Ms Riley, when asked by me as to why the appeal should be allowed to proceed, indicated that it was “a matter of principle” for her client, and also that her client was keen to have the appeal heard so that litigants who find themselves in a similar position to the father could have some guidance from an Appeal Court as to what should be done and how the matter should be progressed.
Given that the application to adjourn was opposed and given that I was being told by Ms Riley that the appeal was proceeding at that point, I determined that the appropriate course was to set the matter down for hearing and make orders in preparation for that hearing. Thus I made orders providing for the filing of documents and I indicated that the hearing would be listed in the week commencing 21 June 2010.
I was also told at that time by Ms Taleski who appeared for the respondent that the Notice of Appeal had still not been served and accordingly I made a further order requiring service by 10 May 2010. I also adjourned the matter to 21 May 2010, given that I was told by Ms Riley that by that time senior counsel would be able to provide advice and I would be told on 21 May 2010 whether the matter was to proceed or not given the issues that had been raised.
Now, the matter came before me on 21 May 2010. Mr Wabnitz appeared for the father, and Ms Hurley appeared as counsel instructed by Ms Taleski for the mother, and again I note that the father did not appear.
As at 21 May 2010 there had been no compliance with my orders of 30 April 2010 that were relevant and by that I mean the Notice of Appeal had still not been served and an order that I made providing for a copy of the transcript to be provided to the Court by the appellant on 10 May 2010 had also not been complied with. The other orders which were designed to prepare the matter for the hearing had not reached the time by which compliance was required, albeit it was only by close of business on 21 May 2010.
I was told by Mr Wabnitz that the advice from senior counsel had still not been obtained, and he sought a further adjournment and an extension of time to comply with the orders that had not been complied with at that time; namely, the orders for service and the provision of the copy of the transcript. Mr Wabnitz, I should also add, had very few instructions. He had only just returned from overseas and he had been asked by Mr Townsend to attend and conduct the hearing before me. I will not repeat what I said about that but in my view that was totally inappropriate and I asked Mr Wabnitz to take that back to Mr Townsend. I had specifically adjourned the matter to 21 May 2010 at the request of Ms Riley and I was to be told whether the appeal was to proceed and if it was to proceed, on what basis. However, Mr Wabnitz did not have those instructions.
The adjournment application was opposed and indeed Ms Hurley made an application that the Notice of Appeal be dismissed on the ground of non-compliance with the orders for the service of the Notice and the provision of the transcript. In the end result I determined to adjourn the matter to today to await the outcome of compliance or otherwise with the further orders made on 30 April 2010, those orders being quite important in relation to the preparation of this matter for the hearing.
Thus the matter has been called on again before me today. Mr Wabnitz has appeared and Ms Hurley has appeared, but once more the father is not present. Mr Wabnitz tells me that senior counsel, namely Mr Slattery QC is no longer briefed and will not be providing any advice to the father in relation to the appeal, or the matter generally. Mr Wabnitz said that he could not tell me when any advice would be obtained from either alternative senior counsel or other counsel. He also confirmed that there was no compliance with paragraphs 4 and 5 of the orders made on 30 April 2010. In relation to paragraph 5 though, he told me that his instructions are that there is no application to lead further evidence and thus non-compliance with that order is not an issue.
Mr Wabnitz also told me that he now has a sealed copy of the Notice of Appeal to be served upon the respondent, and he has the transcript to hand up. Now, that is all very well but there has still not been compliance with my orders.
In the end result, Mr Wabnitz sought an adjournment for seven days to be able to comply with all of the orders made on 30 April 2010. Mr Wabnitz could not take any further the issue of the merits of the leave application or the appeal itself, or take any further the reasons why that leave application should be allowed to proceed. He could not say anything more as to the futility of the appeal in the circumstances that now exist.
Ms Hurley opposes the application to adjourn and has renewed her application to dismiss the Notice of Appeal given that there is a further non-compliance with my orders.
In my view, the Notice of Appeal should be dismissed. The father has had ample opportunity to comply with orders made by me to prepare this matter for hearing. He has had ample opportunity to obtain advice from senior counsel. Further, he has not deigned to appear in this matter, a matter which appears to be so important to him that he has continually instructed his solicitor and counsel to indicate that the appeal is to be proceeded with.
I have still not received a satisfactory answer to my challenge to the father’s legal representatives as to on what possible basis the appeal should be allowed to proceed given the circumstances that have arisen. All I know is it is a matter of “principle” and Mr Jacob, very helpfully and very generously, wants to assist other litigants who might find themselves in the position that he does. However, I am not prepared to allow this court to be used by Mr Jacob for such purposes. If he were serious about wanting to proceed with this appeal, he would be here, he would have sorted out his legal advice, and he would have complied with the orders.
The Notice of Appeal was filed on 19 February 2010. Mr Townsend commenced to act just prior to 22 April 2010. However, nothing has been done, nothing has happened and there is no basis to allow this application to proceed. There has been non-compliance with the orders that I have made initially on 22 April 2010 and then 30 April 2010. The father has had his opportunity and he has now run out of time and this Court is not prepared to pander to him any longer.
Ms Hurley then seeks an order for costs. The amount sought is $3964 which comprises $2600 for solicitor’s fees and $1364 for counsel. I am told that the amount, certainly for the solicitor is calculated on the basis of a costs agreement, and thus that amount does not help me one bit because there is no application for indemnity costs. Therefore, unless Ms Hurley can put to me a figure based on the Family Court scale, I have no alternative but to send this matter to taxation, if I grant the order.
As with any application for costs, I have to have regard to s 117 of the Family Law Act 1975 (Cth) and in my view, there are ample circumstances here that justify an order for costs. Primarily, the father has not complied with orders that have been made by this Court and that is a sufficient circumstance to justify an order for costs. Thus, there will be an order for costs.
Ms Hurley has been unable to put an amount to me based on the scale and thus I will have to send the matter off to taxation if the costs cannot be agreed.

I certify that the preceding 29 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 26 May 2010.

Associate