Lander & Bradbury (No 2)

[2022] FedCFamC1A 194

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Lander & Bradbury (No 2) [2022] FedCFamC1A 194

Appeal from:	Bradbury & Lander [2022] FedCFamC1F 548
Appeal number:	NAA 189 of 2022
File number:	CAC 239 of 2017
Judgment of:	ALSTERGREN CJ, REES & ALTOBELLI JJ
Date of judgment:	22 November 2022
Catchwords:	FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Appeal from final parenting orders – Where appellant failed to comply with procedural orders made in the appeal – Where appellant failed to file Summary of Argument and List of Authorities – Where respondent applied for summary dismissal pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where appellant had been given several opportunities to comply with procedural orders – Where appellant was notified that the appeal may be dismissed – Where appellant indicated at the hearing that she sought to amend the Amended Notice of Appeal further – Where the Court is not properly apprised of the grounds relied upon – Where court orders must be complied with – Appeal dismissed – Appellant to pay respondent’s costs in a fixed sum.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.45
Number of paragraphs:	14
Date of hearing:	22 November 2022
Place:	Sydney
The Appellant:	Litigant in person
Counsel for the Respondent:	Mr Haddock
Solicitor for the Respondent:	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

Appellant

AND:

MR BRADBURY

Respondent

INDEPENDENT CHILDren’S LAWYER

order made by:	ALSTERGREN CJ, REES & ALTOBELLI JJ
DATE OF ORDER:	22 nOVEMBER 2022

THE COURT ORDERS THAT:

1.The Amended Notice of Appeal filed 21 October 2022 be dismissed.

2.The appellant pay the respondent’s costs of the appeal in the sum of $8,534.33 which is to be deducted from the $40,000 ordered to be paid to the appellant pursuant to Order 12 of the orders made by the Honourable Justice Gill on 2 August 2022 in proceedings CAC 239 of 2017.

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 the pseudonyms Lander & Bradbury has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

ALSTERGREN CJ, REES & ALTOBELLI JJ:

1. Ms Lander (“the appellant”) filed an appeal against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 2 August 2022. Before us today, Mr Bradbury (“the respondent”) seeks that the appeal be summarily dismissed pursuant to the provisions of r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which provide, relevantly:

   13.45 Dismissal of appeal and applications for non-compliance or delay

   (1) This rule applies if:

   (a) an appeal is not taken to have been abandoned; and

   (b) a party (the defaulting party) has not:

   (i) met a requirement under these Rules or the Family Law Regulations; or

   (ii) complied with an order in relation to the appeal (including an application for leave to appeal or any other application in relation to an appeal); or

   (iii) shown reasonable diligence in proceeding with an appeal or application.

   (2) A court having jurisdiction in the appeal or application may:

   (a) if the defaulting party is the appellant or the applicant:

   (i) dismiss the appeal or application; or

   (ii) fix a time by which the requirement is met, or an order that an appeal or application will be dismissed if the order imposing the requirement is not complied with. 

2. The appeal was filed on 30 August 2022. On 17 September 2022, the appellant was advised the appeal would be heard on 22 November 2022. On 23 September 2022, procedural orders were made, which included the following order, that:

   The appellant file and serve a Summary of Argument and List of Authorities in accordance with rule 13.23 of the Rules with the National Appeal Registry, Sydney, on or before 4.30 pm on Wednesday, 19 October 2022.

3. The appellant did not file a Summary of Argument in accordance with these orders, or at all.  On 19 October 2022, the National Appeal Registry sent an email to the appellant stating, inter alia:

   I refer to the above appeal that is listed for hearing before the Full Court of the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction at 10.00 am on Tuesday, 22 November, 2022 in Sydney, in person, as previously advised. 

   I also refer to the procedural orders made herein on 23 September 2022, and I attach a copy of the same for your ease of reference. 

   In particular, I refer you to order 7 thereof.  Pursuant to same, you are required to file and serve your Summary of Argument and List of Authorities by 4.30 pm today.  Kindly ensure that you provide these documents as ordered. 

   Please be advised that late-filed documents may not be accepted for filing or, if filed, you may not be granted permission to rely upon same at the final hearing.  It is therefore extremely important to the running of this appeal that the procedural orders be complied with strictly. 

   Please also note that Rule 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) sets out the formal requirements for a Summary of Argument and List of Authorities. In particular, please note that your Summary of Argument must not exceed 15 pages.

   I therefore look forward to receiving your Summary of Argument and List of Authorities by 4.30 pm today. 

   (Emphasis in original)

4. The appellant responded setting out some difficulties she was experiencing. On 19 October 2022, the National Appeals Registry sent out another email to the appellant stating, relevantly:

   Unfortunately, the National Appeal Registry Sydney cannot engage with you regarding the issues raised relating to your Summary of Argument and List of Authorities.  The issue you raise are entirely matters for you and the National Appeal Registry Sydney cannot provide you with legal advice. 

   I can confirm that the Summary of Argument and List of Authorities are not documents that are required to be sworn or affirmed. The requirements for your Summary of Argument and List of Authorities are set out in Rule 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as previously advised.

   Kindly ensure that the required documents are provided to the National Appeal Registry Sydney and the procedural orders are strictly complied with.

5. The appellant filed an Amended Notice of Appeal on 21 October 2022. That notice, being the amended notice, was prepared by herself, amending the original notice prepared by her lawyers. It expanded the Notice of Appeal from nine grounds to 31 grounds. On 21 October 2022, the same day as the filing of the Amended Notice of Appeal, the National Appeal Registry again emailed the appellant stating, inter alia, that it sought compliance with the requirements of r 13.45(3) and said:

   I also refer to previous correspondence and procedural orders made.  Despite being ordered to file and serve your Summary of Argument and List of Authorities by 4.30 pm on Wednesday, 19 October 2022, no such document has yet been received for filing by the National Appeal Registry Sydney. 

   I draw your attention to Rule 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth). This rule provides, in effect, that the appeal may be listed for a consideration of dismissal due to a party failing to comply with an order is [sic] relation to an appeal (Rule 13.45(1)(b)(ii)).

   Your failure to comply with the procedural orders is highly prejudicial to the respondent and the Independent Children's Lawyer.  To avoid dismissal of your appeal pursuant to the above Rule, you must attend to filing your Summary of Argument and List of Authorities immediately. 

   (Emphasis in original)

6. There was further correspondence.

7. Some six days later on 27 October 2022 the National Appeal Registry emailed the appellant again stating, inter alia:

   The procedural orders have been made and are in place.  I cannot make it clearer that the Court expects its orders to be complied with.  Any relevant issues relating to either non-compliance or late-compliance with the procedural orders will be matters for the Full Court at the final hearing.

8. The respondent filed his Summary of Argument and List of Authorities on 4 November 2022.  On the same day, the National Appeal Registry sent another email to the appellant, stating relevantly:

   I confirm that your appeal is listed for hearing before a Full Court of the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction at 10.00 am on Tuesday, 22 November 2022 at the Sydney Registry, Full Court, Courtroom 7C in person as previously advised. 

   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 procedural orders requires 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 or 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 (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 or 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.

   In the event that the appeal is not to proceed, you are strongly urged to file a Notice of Discontinuance with the National Appeals Registry Sydney prior to the above listing date.

   (Emphasis in original)

9. On 14 November 2022, the appellant filed an Application in Appeal seeking to adjourn the hearing of the appeal.  The application was heard and dismissed on 18 November 2022, with costs.  The appellant has been on notice since 19 October 2022 that her appeal may be dismissed if she does not file her Summary of Argument and List of Authorities in accordance with the procedural orders.  The registry has contacted the appellant on a number of occasions to reinforce the need to file the Summary of Argument and List of Authorities, and warn the appellant, specifically, of the possibility of dismissal of the appeal if that does not occur.

10. The appellant has had a number of occasions with which to comply with orders, even be it late.  It was also submitted today by the respondent that even if the Summary of Argument had been presented as late as Friday, or over the weekend, the appeal may be able to be facilitated today.  However, none was forthcoming. Further, during the hearing today it was indicated by the appellant that the Amended Notice of Appeal may now have to be amended, again, which included amending the appeal, at least in grounds 20 to 29, with some grounds being merged and others abandoned. This reinforces the need for strict compliance with court orders, particularly to provide notice to each party as to the case they have to meet.

11. Clearly, here, the respondent and the Court are not properly apprised of what grounds are going to be relied upon, what grounds will be merged and what issues may arise.  This would have been specifically avoided had the appellant, at any stage between 19 October 2022 and today, complied with court orders. Further, it is obvious that the appellant had the use of and advice from lawyers at least since the appeal was first drafted and filed, and indeed up until the time it appears that the Amended Notice of Appeal was prepared by herself. It appears further that at least around 21 October 2022, or 20 October 2022, the appellant sought to engage new lawyers and had new lawyers prepare for her extensive affidavit material and representation at the hearing before her Honour seeking an adjournment last Friday.

12. The affidavit material in support of that application was some 49 paragraphs and was the result of detailed submissions being provided. It is also of note, as the appellant submitted today, that those new lawyers cared about preparing the case appropriately for the appellant and were capable. Notwithstanding that, and notwithstanding their engagement at least by 20 October 2022 or 27 October 2022, the appellant has again failed to provide any Summary of Argument, List of Authorities or provide proper notice to the respondent and to the Court as to the finalised grounds of appeal or submissions.

13. Court orders must be complied with to provide a fair and just system of justice for all litigants.  In these circumstances, we are satisfied the appellant had the opportunity to abide by court orders but failed to do so.

14. Accordingly, the appeal will be dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Chief Justice Alstegren and Justices Rees and Altobelli delivered on 22 November 2022.

Associate:

Dated: 28 November 2022