LEONARD & TIMMINS
[2012] FamCAFC 43
•14 March 2012
FAMILY COURT OF AUSTRALIA
| LEONARD & TIMMINS | [2012] FamCAFC 43 |
| FAMILY LAW ─ APPEAL ─ Application to extend time to file appeal books ─ Where the appellant has, since filing a Notice of Appeal persistently failed to comply with the rules and/or orders of the Court for preparation and prosecution of his appeal ─ Where the record reveals that the enquiry of the Appeals Registrar was instrumental in the appellant actually filing the application to extend time ─ Where it is regrettable that the orders of 9 December 2011 in relation to the preparation of the appeal books were not posted to the appellant at the time they were engrossed, or immediately thereafter ─ Where if the appellant does not now file his appeal books in accordance with the Court’s directions, the appeal should stand dismissed ─ Where on balance, the balance being the opportunity to be heard of the appellant and the entitlement of the respondent to finality of the litigation, a self executing order would be fair to both parties – Application to extend time to file appeal books allowed |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Leonard |
| RESPONDENT: | Ms Timmins |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Scally |
| FILE NUMBER: | NCC | 1121 | of | 2007 |
| APPEAL NUMBER: | EA | 123 | of | 2011 |
| DATE DELIVERED: | 14 March 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Ainslie-Wallace JJ |
| HEARING DATE: | 14 March 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 October 2011 |
| LOWER COURT MNC: | [2011] FamCA 649 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant self represented |
| SOLICITOR FOR THE RESPONDENT: | Respondent self represented |
| SOLICITOR FOR THE ICL: | Legal Aid NSW Newcastle Family Law |
Orders
That the Notice of Appeal filed 17 October 2011 BE DISMISSED UNLESS the appellant father file and serve appeal books within twenty eight (28) days of these orders which are to comprise each of the following documents:
· Notice of Appeal and any Amended Notice of Appeal;
· Orders of the trial Judge;
· Reasons for judgment of the trial Judge;
· Transcript of the proceedings if relied upon
· Application and response and any relevant affidavit material;
· Exhibits tendered before the trial Judge;
· Summary of Argument; and
· Any application for leave to adduce further evidence in the appeal together with affidavits containing such further evidence.
That the appellant father file in the Sydney registry of the Court within twenty eight (28) days of the date hereof four (4) copies of the appeal books, together with a certificate pursuant to Chapter 22 Rule 22.22(2) of the Family Law Rules, and serve two (2) copies of the appeal books on the respondent mother, and a copy upon the ICL together with a copy of the certificate.
That in the event of the appeal being reinstated the Appeals Registrar list the appeal for hearing before the Full Court at the Sydney sittings of the Full Court in 2012.
That the costs of the application in the appeal filed 18 November 2011 and the application filed 2 February 2012 and incidental to these proceedings be reserved to the Full Court.
That to the extent that these orders do not comply with any provision in the Family Law Rules, then such compliance be dispensed with.
NOTE: The appellant has been handed a copy of these orders.
IT IS NOTED that the estimated time for the hearing of the appeal is 1 day.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leonard & Timmins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 123 of 2011
File Number: NCC 1121 of 2007
| Mr Leonard |
Appellant
And
| Ms Timmins |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE
REASONS FOR JUDGMENT
coleman j
By application filed 2 February 2012, Mr Leonard (“the appellant”), sought an extension of time within which to comply with orders made by the Court on 9 December 2011. Although nothing of substance turns on it, the application is probably more correctly described as being to reinstate an appeal deemed abandoned by virtue of the appellant’s failure to comply with directions made on 9 December 2011 in accordance with their terms.
Each of Ms Timmins (“the respondent”), and the Independent Children’s Lawyer (“the ICL”), resist the appellant’s application, in essence, on the basis that the appellant has historically, since filing a Notice of Appeal on 17 October 2011 against orders made by Fowler J on 7 October 2011, persistently failed to comply with the rules and/or orders of the Court for preparation and prosecution of his appeal. The mother and the ICL make the point that the mother is entitled to finality, and to know that whatever the outcome of the appellant’s appeal, the case is, in fact, over and concluded.
A brief chronology of events subsequent to the orders of 9 December 2011 provides the context of this application. The reasons which I advance for the orders which I would make are supplementary to the reasons for judgment of 9 December 2011. Those reasons can be regarded as incorporated in these reasons without repeating or reading from the settled judgment of 9 December 2011.
On 23 December 2011, some 14 days after the orders of 9 December 2011 were made in Court and engrossed, they were sent by the appeal registry to the parties. As the record of 9 December 2011 reveals, the parties all participated, by telephone, in the proceedings on that day. The appellant denies ever having received the orders.
On 1 February 2012 the appeal case co-ordinator telephoned the appellant and left a message on his answering service advising that the appeal books were due to be filed. On 1 February 2012 the appellant telephoned the appeal registry. He was advised that his appeal books were due to be filed by 3 February 2012 and was advised of the procedure for obtaining an extension of time, either by consent of the other parties to the appeal, or by an application in an appeal, if he sought, as clearly as events have transpired he needed to, an extension of time in which to file appeal books in accordance with the directions of 9 December 2011.
On 2 February 2012 the appellant filed the application which comes before the Court this day, together with an affidavit in support of it. The affidavit purports to explain why the appellant has not complied with the previous orders. It is clear from the affidavit that the only matter raised by the appellant which could potentially adequately explain part of his failure to comply with the directions, relates to the registry not forwarding the orders of 9 December 2011 until 23 December 2011.
The appellant asserts that he did not ever receive the engrossed orders in the post or, it seems, otherwise. Whether that is correct or not, the reality is that no-one is in a position to refute the appellant’s allegation that he has not received the engrossed orders. The appellant participated in the proceedings on 9 December 2011. The Court made the orders orally at that time which were subsequently engrossed, and made clear to the appellant that the directions were to be complied with, failing which the appellant’s ability to prosecute his appeal would become problematic.
In view of what transpired on 9 December 2011, it is surprising, particularly as the appellant asserts in his affidavit in a number of places that he was told, as he probably was, on 9 December 2011 that the orders would be posted to him within a few days, that the record reveals that the enquiry of the Appeals Registrar was instrumental in the appellant actually filing an application.
The appellant’s affidavit with respect to him reveals that, rather than approaching the Court seeking the documentation during December 2011 or January 2012, when time was clearly running, the appellant did nothing.
It is regrettable that the orders of 9 December 2011 were not posted to the appellant at the time they were engrossed, or immediately thereafter. Although the appellant’s explanation for his failure to comply with the directions of 9 December 2011 taxes credibility, it cannot be rejected. The appellant’s assertion that he did not receive the orders, or become aware of them, until well after 23 December 2011, or until 1 February 2012, and his assertion that the receipt of them, or implied assertion that receipt of them was in effect the trigger for him needing to prepare his appeal books, are all explanations which are difficult to accept.
But for the fact that the appellant cannot be shown to have received the orders of 9 December 2011, and that they were not posted to him until 23 December 2011 in any event, for my part, I would not contemplate reinstating the appeal. However, being mindful of what the authorities say in relation to the opportunity to be heard, I am inclined, notwithstanding the prejudice to the respondent mother particularly, to give the appellant one last chance. It should however, in my view, be precisely that: a last opportunity. If the appellant does not now file his appeal books in accordance with the Court’s directions, the appeal should stand dismissed.
If the appellant is to have his appeal revived that clearly involves prejudice to the respondent mother, in that there will be a further delay until the fate of the appeal is known. On the other hand, at least there would be finality and it is not irrelevant in this regard that the orders of the trial Judge have not been stayed, and that there is no cross-appeal by the respondent mother in relation to them.
On balance, the balance being the opportunity to be heard of the appellant and the entitlement of the respondent to finality of the litigation, in my opinion, a self executing order of the kind I have indicated would be fair to both parties.
may j
I agree with the reasons of the learned presiding Judge and have nothing to add.
ainslie-wallace j
I agree with the reasons of the presiding Judge and Justice May, and the proposed orders and note that, in the course of the discussion this morning with Mr Leonard, it was made perfectly clear to him that whether or not he includes the transcript in the appeal books is a matter for him but it will impact on the grounds of appeal that he would be permitted to argue before us. Otherwise, I have nothing further to add.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Ainslie-Wallace JJ) delivered on 14 March 2012.
Associate:
Date: 19.03.2012
0
0
1