Janome & Janome

[2022] FedCFamC1A 94

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Janome & Janome [2022] FedCFamC1A 94

Appeal from:

Janome & Janome [2022] FedCFamC1F 90

Appeal number(s):

NAA 55 of 2022

File number(s):

NCC 104 of 2017

Judgment of:

ALDRIDGE J

Date of judgment:

16 June 2022

Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks that the appeal hearing be vacated and to grant an extension of time to file documents – Where the basis of the application is that the appellant has been refused legal aid and there is an appeal against that refusal which is yet to be determined – Where the grounds of appeal should properly be considered and are not futile – No suggestion that the appellant is intending to delay proceedings – No special circumstances that prevent the Court from granting the adjournment – Orders made vacating the appeal hearing and extension of time granted to file documents – Application otherwise dismissed.   

Legislation:

Family Law Act 1975 (Cth) s 68B

Judiciary Act 1903 (Cth) s 79

Legal Aid Commission Act 1979 (NSW) ss 56, 57Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22   

Cases cited:

Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139

Dacich v Director of Public Prosecutions (No 1) [2020] NSWCA 297

Rowell & Keogh (2011) 45 Fam LR 157; [2011] FamCAFC 74

Number of paragraphs:

22

Date of hearing:

16 June 2022

Place:

Sydney (via video link)

Solicitor for the Applicant:

Peter Jurd Lawyers

The Respondent:

Self-represented litigant

Solicitor for the Independent Children’s Lawyer:

Did not participate

ORDERS

NAA 55 of 2022
NCC 104 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS JANOME

Applicant

AND:

MR JANOME

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	16 JUNE 2022

THE COURT ORDERS THAT:

1.The time in which the applicant may file the digital transcript with the National Appeal Registry and serve the respondent and the Independent Children’s Lawyer with it and file her Summary of Argument and List of Authorities is extended up to 4.30 pm on 26 August 2022.

2.The time in which the respondent is to file his Summary of Argument and List of Authorities is extended up to and including 9 September 2022.

3.Pursuant to r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the appeal will be taken to be abandoned if the applicant fails to file the digital transcript by the due date. If the applicant seeks an extension of time for filing of the digital transcript, such extension should be sought with the written consent of each other party, or if such consent is not forthcoming, by filing an Application in an Appeal, with supporting affidavit, seeking such extension of time, prior to 4.30pm on the due date.

4.The hearing date of the appeal listed for 27 June 2022 is vacated.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

EX TEMPORE REASONS FOR JUDGMENT

ALDRIDGE J:

1. This is an Application in an Appeal filed on 6 June 2022 which seeks that the date for the hearing of the appeal of 27 June 2022 be vacated and that the time for filing the digital transcript, Summary of Argument and List of Authorities be extended for a further 56 days.

2. The essential basis of the application is that the applicant mother (who is the appellant in the appeal) has been refused legal aid and there is an appeal against that refusal which is yet to be determined.

3. The appeal is against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 28 February 2022 which concerned the parties’ only child who was born on 30 September 2015. Essentially the orders provided for the child to live with the father, who is the respondent in the appeal, and who was to have sole responsibility for him. The orders did not provide for the child to spend any time with the applicant and indeed she was restrained, pursuant to s 68B of the Family Law Act 1975 (Cth), from approaching within 100 metres of the child, the respondent’s residence and any school attended by the child.

4. I note that the Independent Children’s Lawyer has filed a Submitting Notice on 2 May 2022 in the appeal.

5. The gravamen of his Honour’s decision was that contrary to the contentions of the applicant, the child had not been sexually abused by the respondent and by others, but rather, as his Honour found at [95], the child requires protection against psychological harm he has already suffered and will continue to suffer by exposure to the applicant’s behaviour which is emotionally abusive. I accept therefore that the appeal is over an issue of great importance to each of the parties and to the child.

6. The grounds of appeal, which as Mr Jurd properly puts out are not likely to be ones on which the appeal ultimately runs, make challenges as to the weight given to various matters (which are always difficult challenges on which to succeed), that there was an error as to no time being provided between the child and the applicant and whether or not it was up to the respondent and the child’s therapist to determine whether in the future there should be any such time.

7. Despite the perhaps less than compelling nature of the current grounds, there is very little before the Court on which the Court can properly assess them. I will proceed on the basis that there are grounds that should properly be considered and that the appeal is not futile.

8. The applicant’s evidence is that she is impecunious, she cannot afford the costs of engaging lawyers for the appeal or for obtaining the transcript and her evidence in that respect was not challenged. Accordingly, she made an application for a grant of legal aid. That application was refused in writing on 6 June 2022, the day this application was filed.

9. The grounds noted in the letter were that the applicant failed both the means test for legal aid and the merits test. The applicant has appealed against that decision pursuant to s 56 of the Legal Aid Commission Act 1979 (NSW) and accordingly she now relies upon s 57 of that Act in support of her adjournment.

10. Section 57 of the Legal Aid Commission Act 1979 (NSW) states:

    Adjournment of certain proceedings

    Where it appears to a court or tribunal, on any information before it--

    (a)       that a party to any proceedings before the court or tribunal--

    (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

    (ii)intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

    (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

    (c)       that there are no special circumstances that prevent it from doing so,

    the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

11. Notwithstanding the section appears in a New South Wales Act, it has been taken to apply federally pursuant to the provisions of s 79 of the Judiciary Act 1903 (Cth), see for example Rowell & Keogh (2011) 45 Fam LR 157. In that decision, the Full Court held that unless the Court was satisfied unless there were special circumstances that prevented it from doing so, where the section applied, the adjournment should be granted.

12. This is no occasion to consider whether or not that section properly construed permits or requires the Court to go further in the terms that were discussed by the Court of Appeal of the Supreme Court of New South Wales in Bobolas v Waverley Council (2016) 92 NSWLR 406 at [186]–[188] and Dacich v Director of Public Prosecutions (No 1) [2020] NSWCA 297.

13. There is no suggestion that the appeal against the refusal of legal aid is frivolous or vexatious or otherwise intended to delay the proceedings.

14. The respondent very properly pointed out that, of course, any such appeal involves further expense for him and indeed further uncertainty notwithstanding that the child is currently living with him pursuant to the orders. He did, however, point out that if the appeal is to proceed with the applicant having received a grant of legal aid, he would himself seek legal assistance. That seems to me to lend some support to the application.

15. The application was filed prior to the time for filing the transcript and the appeal therefore has not yet been taken to be abandoned pursuant to r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) because an application for the extension of time provided was made within the time for its provision.

16. There would be little point vacating the hearing date of the appeal and not making an extension of time in which to provide the transcript because that would simply otherwise trigger the deemed abandonment of the appeal and would mean otherwise the rights of appeal are lost or an application for reinstatement would need to be made.

17. I am informed without opposition by the solicitor for the applicant that he has been told that the expected date for resolution of the appeal is late July.

18. Given that no steps have been taken yet to prepare the appeal in the sense that although the registrar has prepared the Appeal Book, the transcript has not been filed, the Summaries of Argument which were due on 6 June 2022 and on the applicant’s part have not been filed, there is no way that the appeal could be readied for hearing on 27 June 2022.

19. Taking into account the findings I have made about the nature of the application for review and the nature of the appeal, I am not satisfied that there are any special circumstances that prevent the Court from granting an adjournment. Accordingly, I will propose to vacate the hearing date and the appeal can be relisted in the ordinary course, if it is to proceed.

20. Conformably with the above, I will also make an order for extension of time for the parties to comply their obligations under the procedural orders made by the appeal registrar.

21. Importantly there will be an order replicating that of the appeal registrar noting that if the digital transcript is not filed by the due date, the appeal will still remain deemed to be abandoned.

22. Accordingly, I will also make the following orders:

    (1)The time in which the applicant/appellant is to file the digital transcript with the national appeal registry and serve the respondent and the Independent Children’s Lawyer with it, and to file her Summary of Argument and List of Authorities is extended to 4.30pm on 26 August 2022.

    (2)The time in which the respondent is to file his Summary of Argument is extended up to and including 9 September 2022.

    (3)The hearing date of the appeal of the 27 June 2022 is vacated.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       21 June 2022