Kovacs and Graham and Anor
[2016] FamCAFC 172
•1 September 2016
FAMILY COURT OF AUSTRALIA
| KOVACS & GRAHAM AND ANOR | [2016] FamCAFC 172 |
| FAMILY LAW – APPEAL – PROCEDURE – Application to review Appeals Registrar’s orders – Application for Appeals Registrar to prepare appeal books – Application to reinstate abandoned appeals – Where the application was filed out of time – Where the appeals were deemed abandoned by reason of the application not able to be listed before the due date to file the appeal books – Where the appellant sought in his application to the Appeals Registrar that the Independent Children’s Lawyer prepare the appeal books – Where the appellant failed to provide adequate evidence before the Appeals Registrar – Where the Appeals Registrar’s decision was correct to refuse that application – Where on application to the Full Court the appellant was able to demonstrate exceptional hardship per Xuarez & O’Halloran & Anor [2013] FamCAFC 13 – Extension of time to file the application granted – Leave to review the Appeal Registrar’s orders allowed in part – The Appeals Registrar will prepare the appeal books on the appellant’s behalf – Where the issue of transcripts has been reserved to the Full Court – Where the issue of costs is reserved to the Full Court. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.18(2)(b), 22.40, 22.44 |
| Bele & Vaughan (No.2) [2012] FamCAFC 125 |
| APPLICANT: | Mr Kovacs |
| RESPONDENT: | Ms Graham |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 762 | of | 2010 |
| APPEAL NUMBER: | NA | 62 | of | 2015 |
| NA | 87 | of | 2015 | |
| NA | 4 | of | 2016 | |
| NA | 14 | of | 2016 | |
| NA | 15 | of | 2016 |
| DATE DELIVERED: | 1 September 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 1 September 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 October 2015, 10 December 2015, 3 February 2016, 11 February 2016 |
| LOWER COURT MNC: | [2015] FamCA 1073; [2015] FamCA 900; [2015] FamCA 1115 |
REPRESENTATION
| THE APPELLANT: | Mr Kovacs (in person) |
| THE RESPONDENT: | Ms Graham (in person) |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
The appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 are reinstated.
That paragraphs (3) and (4) of the Amended Application in an Appeal filed by the applicant on 15 August 2016 to review the Appeal Registrar’s orders of 7 July 2016 are allowed in part.
That Orders (4) – (8) of the Orders made by Registrar Kane on 7 July 2016 be discharged
The Regional Appeals Registrar shall prepare the appeal books in accordance with the settled index in appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 and deliver the same to the parties by Friday 25 November 2016.
It is further directed that:
(a)The Appellant file and serve the Summary of Argument and List of Authorities upon which he wishes to rely in respect of appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 by 4.00pm on Friday 20 January 2017.
(b)That the Respondent file and serve the Summary of Argument and List of Authorities upon which she wishes to rely in respect of appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 by 4.00pm on Friday 24 February 2017.
(c)That the Independent Children’s Lawyer file and serve the Summary of Argument and List of Authorities upon which they wish to rely in respect of appeals NA62 of 2015, NA87 of 2015, NA4 of 2016, NA14 of 2016 and NA15 of 2016 by 4.00pm on Friday 24 March 2017.
The issue of costs is reserved to the Full Court.
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 Kovacs & Graham and Anor 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number:
File Number:
| Mr Kovacs |
Applicant
And
| Ms Graham |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
Mr Kovacs (“the father”) and Ms Graham (“the mother”) have three children together, aged eleven, nine and six respectively. On 21 October 2015 after lengthy proceedings before Tree J, his Honour ordered that the mother have sole parental responsibility of all three children and that they live with her.
The Orders provide for the younger two children to spend unsupervised time with the father twice per month for a period of four hours, with changeover to occur at a contact centre. There is no order for time between the oldest child and the father, unless she expresses a wish to do so.
There are a number of appeals and applications before the Court in this matter. It is necessary to set out some background to understand the purpose of the hearing today.
Background
The father has five appeals before this Court:
a)Appeal NA87 of 2015 from the final parentings orders made by Tree J on 21 October 2015;
b)Appeal NA62 of 2015 from interim parenting orders made by Tree J on 13 August 2015, which suspended the father’s time with the children pursuant to earlier orders and time being reinstated upon the provision of medical information. The Orders also dismissed the father’s contravention applications;
c)Appeal NA4 of 2016 from the Orders made by Tree J on 10 December 2015 which dismissed the father’s application for a stay of the final parenting orders and interim parenting orders;
d)Appeal NA14 of 2015 from the Orders made by Tree J on 3 February 2016 which adjourned his extant applications and ordered the father to file material in support of a further adjournment; and
e)Appeal NA15 of 2016 from the Orders made by Tree J on 11 February 2016 which dealt with the outstanding applications of 3 February 2016 in the father’s absence, which dismissed those applications and also the mother’s application to have the father declared a vexatious litigant.
Registrar Kane made two procedural orders relevant to the proceedings:
a)On 22 February 2016 procedural orders were made which required the father to file his appeal books in NA62 of 2015, NA87 of 2015 and NA4 of 2016 by 22 July 2016.
b)On 13 June 2016, further orders were made which required the father to file additional appeal books for NA14 of 2016 and NA15 of 2016 by 26 August 2016.
On 17 June 2016 the father filed an Application in all of the aforementioned appeals seeking an order that the Independent Children’s Lawyer prepare the appeal books. In his affidavit filed with the Application, the father said that he suffers from a disability and could not afford the costs of preparing the appeal books.
The father’s Application came before Registrar Kane on 4 July 2016.
The Independent Children’s Lawyer resisted the father’s Application on the basis that the Independent Children’s Lawyer is legally aided, does not support the appeal, and as a sole practitioner does not have the time to prepare the appeal books.
On 7 July 2016 Registrar Kane dismissed the father’s Application, but did grant him an extension of time to file his appeal books in NA62 of 2015, NA87 of 2015 and NA4 of 2016 to 26 August 2016.
On 15 August 2016 the father sought to review the decision of the Registrar in relation to the appeal books by filing an application. Pursuant to r 22.40 of the Family Law Rules 2004 (Cth) (“the Rules”) the father’s application was out of time. In any event, I will give the father leave to hear this application.
On 30 August 2016, it was necessary for the father to file an Amended Application in an Appeal as by this time, his failure to comply with the procedural orders to file appeal books in all appeals by 26 August 2016 meant the appeals were deemed abandoned. The Amended Application seeks their reinstatement.
Reasons of the Registrar
Registrar Kane set out the matters the father argued in support of his Application for the Independent Children’s Lawyer to prepare the appeal books. The father argued that he could not afford to prepare the appeal books, and his various health issues impacted his capacity to do so. He submitted the Independent Children’s Lawyer should instead bear this responsibility as “it is her responsibility in acting in the best interests of the children to take the steps necessary to ensure the appeals are heard.” There was no medical evidence before the Registrar of any real assistance.
Registrar Kane considered five matters were relevant in determining the application:
a)The history of the court proceedings: the father has previously had carriage of litigation in this Court for over six years, where he had responsibility of preparing a number of affidavits and applications. Additionally, the father was granted significant time to prepare the appeal books for these appeals;
b)Financial hardship: Registrar Kane noted that the father had failed to provide evidence of the cost of preparing the appeal books, and while he is of limited means, he did not fall within the meaning of “exceptional hardship” as set out in my earlier decision of Xuarez & O’Halloran & Anor [2013] FamCAFC 13.
c)Capacity to prepare the appeal books (health): It was found that the father’s evidence as to his capacity was inconsistent, or where provided it was insufficient. The father argued he did not have the capacity to prepare the appeal books, but did not argue the same for the preparation of the summaries of argument.
d)Responsibility of the Independent Children’s Lawyer to prepare the appeal books: Registrar Kane did not agree that the Independent Children’s Lawyer bore the responsibility of preparing the appeal books, particularly as the Independent Children’s Lawyer is funded by legal aid.
e)Another person preparing the appeal books: Registrar Kane raised the possibility of the appeal books being prepared by the registry pursuant to r 22.18(2)(b) of the Rules. The father did not agree to this course, and instead suggested the “other” person could be the Chief Justice of the Family Court. Notwithstanding, Registrar Kane inferred the father had made an application pursuant to that rule, but for the reasons given, it was not appropriate to grant the application.
Conclusion in relation to the Reasons of the Registrar’s decision
Registrar Kane was correct in her decision and for the reasons she gave. The father did not apply for the registry to prepare the appeal books, and did not provide adequate evidence in relation to why he was unable to comply with previous directions.
Reinstatement of the Appeals
The father filed his Application on 15 August 2016, but a consequence of busy court delays meant the hearing of that Application could not occur until today. In the meantime, the father’s failure to comply with Order 5 of the Procedural Orders made on 7 July 2016 meant the five appeals were deemed abandoned.
Pursuant to r 22.44, a party may apply to have an abandoned appeal reinstated. The father included this in his Amended Application on 30 August 2016.
For the reasons that will be given shortly, I intend to grant the father an extension of time to review the registrar’s decision, and allow the father’s application in part. I will allow the appeals to be reinstated and intend to order that the Appeals Registrar prepare the appeal books pursuant to r 22.18(2)(b), as I am now satisfied that it would impose exceptional hardship on the father.
Application regarding the Appeal Books
The father’s Amended Application seeks the following:
1.That all appeals: NA62/2015; NA87/2015; NA4/2016; NA14/2016; NA15/2016 are reinstated.
2.The Review/Appeal a [sic] Registrar’s decision made on 7th of July 2016 as per Rule 20.44 to be set for hearing by a Judge of the Appeal Division.
3.An order in the Application for an extension of time to file a review as per Rule 1.14. ss 1 and 2
4.All appeal books shall be prepared by ICL or by person appointed by the Court other than applicant.
6.An order made to dismiss any costs directed to Application and related with this application as per Rule 1.14 ss. 3.
The father filed an affidavit on 20 August 2016 in support of the application. In this affidavit, the father provides proper evidence to support the granting of the application.
The father explains he is on a disability pension, after suffering an acute brain injury in 2007. As a result of the extensive litigation, the father has been further diagnosed with “severe PTSD”. Annexed to his affidavit is a medical report from his doctor, dated 9 August 2016. This report confirms the father’s incapacity. The father explains he now really struggles to prepare affidavits.
The father also provided information about the expected costs of preparing the appeal books. The father deposes that he obtained a quote from Auscript for the transcripts, which are expected to cost $19,789.32. It must be accepted that he has no financial means to prepare the appeal books and provide the transcripts. Registrar Kane has ordered that the issue of transcripts would be decided by the Full court hearing the appeal.
Nature of an appeal from a Registrar’s order – r 22.40
As previously noted, r 22.40 empowers a party to appeal a decision of a registrar to a judge of the appeal division. It is now well-established that a review of an appeal registrar’s order is conducted on the basis of a hearing de novo (Bele & Vaughan (No.2) [2012] FamCAFC 125 and Wellington & Child Support Registrar [2012] FamCAFC 34). The rationale is set out in the reasons of Harris v Caladine (1991) 172 CLR 84, which is set out in detail in my earlier decision of Xuarez & O’Halloran & Vitela [2013] FamCAFC 13.
At [33] of those Reasons, I considered the meaning of “exceptional hardship”:
33.It is a rare occasion that this Court will exercise the power to relieve an appellant of the obligation to prepare their own appeal books. It should be noted that the Rule confers a power, not an obligation, to make an order. Furthermore this power can only be exercised if the Court is first satisfied of exceptional hardship to the appellant.
34.Indeed many litigants in this Court could demonstrate hardship, by virtue of their financial or other circumstances. However the financial and human resources cost to the Court or a respondent of preparing appeal books, in the place of an appellant, can be very significant. For good reasons therefore, the threshold required by the Rule is exceptional, not hardship generally.
Conclusion
It is apparent in this case that the father has diminished capacity. While it is true he has been able to appear in court during several years of litigation largely on his own, it would appear that his health has worsened over the years. In these most unusual circumstances, and considering these appeals challenge significant parenting orders, it is appropriate to order that the Appeals Registrar prepare the appeal books.
It should be appreciated that this places a significant burden on an already overworked registry and staff.
The Appeals Registrar will prepare the appeal books on the appellant’s behalf, and they will be distributed to the parties. Further directions will be made in relation to the timing of the filing of summaries of argument.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 1 September 2016.
Associate:
Date: 1 September 2016
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