Lander & Bradbury

[2022] FedCFamC1A 189

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Lander & Bradbury [2022] FedCFamC1A 189

Appeal from:	Bradbury & Lander [2022] FedCFamC1F 548
Appeal number:	NAA 189 of 2022
File number:	CAC 239 of 2017
Judgment of:	REES J
Date of judgment:	18 November 2022
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for an adjournment of the appeal – Where the applicant failed to comply with procedural orders – Where the applicant seeks an adjournment to secure legal representation – Where it is unlikely that the respondent would be any better prepared if an adjournment is granted – Application dismissed – Costs
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.45
Number of paragraphs:	20
Date of hearing:	18 November 2022
Place:	Sydney (via Videolink)
Counsel for the Applicant:	Ms Beck
Solicitor for the Applicant:	Farrar Gesini Dunn
Solicitor for the Respondent:	Ms Shavaiz, Infinity Legal
Independent Children's Lawyer:	Mary Burgess (Submitting notice filed)

ORDERS

NAA 189 of 2022
CAC 239 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS LANDER

Applicant

AND:

MR BRADBURY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	REES J
DATE OF ORDER:	18 November 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 14 November 2022 be dismissed.

2.Within 30 days of the date of this order, the applicant pay the respondent’s costs of the application in the sum of $1,000.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

REES J:

1. Before me is an application by the appellant to adjourn an appeal that is fixed for hearing on Tuesday 22 November 2022 on the basis that she has not been able to secure legal representation for the conduct of the appeal or to comply with the directions made for the preparation of the appeal.

2. The application is opposed by the respondent. The Independent Children’s Lawyer has filed a Submitting Notice on 25 October 2022 and does not seek to be heard.

3. The Notice of Appeal was filed on 30 August 2022. The applicant was not represented and she prepared the document.

4. On 17 September 2022 the applicant was advised that the appeal would be listed on 22 November 2022.

5. On 23 September 2022, procedural orders were made including orders for the filing of the appellant’s Summary of Argument by 19 October 2022.

6. The applicant did not file her Summary of Argument.

7. On 21 October 2022, the applicant filed an Amended Notice of Appeal which was prepared by her. The registrar wrote to the applicant, noting that her Summary of Argument had not been filed and drawing her attention to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) which provides for an appeal to be dismissed if a party has not complied with an order, or shown reasonable diligence in proceeding with the appeal.

8. The respondent’s Summary of Argument and List of Authorities was filed on 4 November 2022.

9. Also on 4 November 2022, the National Appeal Registry emailed the applicant in the following terms:

   I also refer to the procedural orders made herein on 23 September 2022.  A copy of the procedural orders is attached herewith for your ease of reference.

   Order 7 of the above procedural orders required you to file and serve a Summary of Argument and List of Authorities not later than 4.30 pm on Wednesday, 19 October 2022.   No such Summary of Argument and List of Authorities has been presented by you to the National Appeal Registry Sydney for consideration of filing.

   Rule 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Family Law Rules”) sets out the procedure to be followed in relation to dismissal of appeals for non-compliance or delay.

   Please be on notice that the Full Court may consider dismissing your appeal on its own initiative at the final hearing of same on Tuesday, 22 November 2022 as set out above.

   Failure to attend and participate in the above hearing at the appointed date and time will be taken to be a failure to attend a hearing for the purposes of s 32(3)(f)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). Of itself, this may provide grounds for dismissing the above appeal.

10. The application to adjourn the appeal was filed on 14 November 2022 and is supported by an affidavit of the applicant sworn on 11 November 2022, of some 49 paragraphs. The applicant deposed that she instructed solicitors on 2 August 2022 and the solicitors briefed counsel to appear on the appeal on 8 August 2022.

11. It does not appear that those solicitors ever filed an appearance or any documents on the applicant’s behalf as all subsequent communication with the registry was from and to the applicant.

12. The applicant deposed that she was provided with a draft Summary of Argument by her solicitors on 19 October 2022 (the due date) but did not file the document. She deposed:

    I received that “bare bones” Summary of Argument at 10.36 am on 19 October 2022 but as it covered Grounds 1 and 2 of my original Notice of Appeal (which contained nine grounds) and none of the additional 22 grounds in my Amended Notice of Appeal, I did not consider it worth filing.

13. The applicant instructed her present solicitors on 27 October 2022. Those solicitors delivered a brief to counsel on 31 October 2022 which was returned on 1 November 2022.

14. There is no evidence that the applicant’s solicitors have sought to brief alternate counsel since 1 November 2022 or otherwise to prepare for the hearing of the appeal.

15. I note that there were similar difficulties in the applicant’s preparation of the substantive hearing before the primary judge who noted in the reasons:

    12. The final hearing in this matter proceeded in an unorthodox manner.  The mother had been given repeated directions to file her affidavit material for the trial, with repeated, lengthy extensions to allow her to do so.  She had also been repeatedly warned that her failure to comply with the directions may leave her in the position that she would not have evidence to present to the Court at the hearing.  The mother had further been warned that consideration as to whether she could rely upon material filed outside the direction, would necessarily take into account the nature of the material, and whether to allow it would be to deprive the father of procedural fairness.

    …

    14. The mother sought an adjournment of approximately three months to allow her to prepare further material, on the basis that if she did not the trial could proceed without such.

    15. The adjournment was refused, and the mother was refused leave to rely upon the affidavit that she had filed the morning of the trial.

16. I can have no confidence that, if the hearing of the appeal were adjourned as the applicant seeks, she would be any better prepared on the next occasion.

17. The applicant has had ample time to prepare her Summary of Argument and has not done so. Arrangements have been made for the appeal to be heard by a bench of three judges on 22 November 2022, a matter of which the applicant has been aware since 17 September 2022. It is unfortunate that the applicant’s time and effort was not directed to preparing for the hearing of the appeal rather than to preparation of the application for adjournment.

18. The application will be dismissed.

19. The respondent seeks an order that the applicant pay the costs of this application. The applicant has been wholly unsuccessful. The respondent estimates his costs to be $1,000. No issue was taken on behalf of the applicant with the reasonableness of that estimate which seems appropriate.

20. The applicant will pay the respondent’s costs of $1,000.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       18 November 2022.