LORRECK & WATTS
[2016] FamCAFC 5
•20 January 2016
FAMILY COURT OF AUSTRALIA
| LORRECK & WATTS | [2016] FamCAFC 5 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to extend period to file appeal books – Where extension would not jeopardise hearing dates – Extension granted. FAMILY LAW – APPLICATION TO ATTEND BY VIDEO LINK – Where appeal hearing should be short – Where appellant lives interstate – Application granted. |
| APPLICANT: | Ms Lorreck |
| RESPONDENT: | Mr Watts |
| FILE NUMBER: | CAC | 23 | of | 2009 |
| APPEAL NUMBER: | EA | 114 | of | 2015 |
| DATE DELIVERED:: | 20 January 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 20 January 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 June 2015 |
| LOWER COURT MNC: | [2015] FCCA 1653 |
REPRESENTATION
| FOR THE APPLICANT: | Ms Lorreck in Person |
| FOR THE RESPONDENT: | Mr Watts in Person |
Orders
That Order 3 dated 21 October 2015 is varied such that the appeal books are to be filed and served no later than 28 January 2016.
That Order 5 dated 21 October 2015 is varied by deleting “22 January 2016” and inserting “28 January 2016”.
That Order 6 dated 21 October 2015 is varied by deleting “12 February 2016” and inserting “26 February 2016”.
The parties have leave to appear at the hearing on 8 March 2016 by video link. In the case of the appellant from Cairns and in the case of the respondent from Canberra.
If a party proposes to appear in person they are to give written notice to the Appeal Registrar no later than 1 March 2016 that they will appear in person.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lorreck & Watts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 114 of 2015
File Number: CAC 23 of 2009
| Ms Lorreck |
Applicant
And
| Mr Watts |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the Court is an application in an appeal filed by the appellant, Ms Lorreck, on 9 December 2015 for an extension of time within which to file appeal books. The appeal is listed for hearing on 8 March 2016, in relation to which orders were made on 21 October 2015. By Order 3, the appellant was required to file and serve the appeal books on or before 15 December 2015. Self-evidently, the appellant failed to do so.
She provides two reasons for her omission. First, difficulties with Telstra meant that she did not have internet access at home. Given that the appellant resides in Cairns, it would seem that this occasioned some difficulty in preparation of the appeal books, as access to the appeals registry was not readily available. The other reason relates to her travel overseas for a holiday in Sicily. That the appellant was to travel to Sicily was known on 21 October 2015 and taken into account when the orders were made for the steps required to prosecute the appeal.
The explanation provided for the failure to comply with the directions for the preparation of the appeal book is, with respect to the appellant, somewhat thin. I am inclined to agree with Mr Watts (“the respondent”) that the Court would ordinarily expect a more compelling explanation for a failure to comply with important procedural steps in relation to an appeal.
In arguing against an extension of time, the respondent, in effect, said that the appeal was not based on strong grounds, he ought not to be inconvenienced by the appellant’s failure to comply with directions, and the Court ought to dismiss the application, the effect of which would be that the appeal would be deemed abandoned.
Whilst there is some force to the submissions made by the respondent, the Court is in the situation where the appeal books have not yet been filed, and it is not possible to be as supremely confident as the respondent is that the appeal, in effect, is doomed to fail. In those circumstances, I consider it is more consistent with the interests of justice to give the appellant an extension of time to file the appeal books and her summary of argument, but on the condition that the timeframe is tight and does not jeopardise the appeal date, nor compromise the respondent’s ability to do what is required of him.
In my view, it is appropriate to provide an extension of time to 28 January 2016 (the date nominated by the appellant) for the filing of the appeal books, the summary of argument and list of authorities by the appellant. As a consequence, the respondent’s timetable should be extended from 12 February 2016 to 26 February 2016.
The next question concerns the application by the appellant to appear at the appeal by video link from Cairns. This application is also opposed by the respondent. In essence, his argument is that, in the ordinary course, parties are expected to appear in person on an appeal. Of grave importance to him is a concern about whether or not the appellant will conduct herself appropriately if permitted to appear by video link. I agree with the respondent that ordinarily parties are expected to appear in person. However, the volume of material in this appeal, as I have already indicated in exchanges, is relatively modest, and so is the number of issues raised in the appeal. It would not be expected that this appeal would take more than about one hour.
I share the respondent’s concern about whether the appellant will conduct herself appropriately, because it is common ground that when the matter was last before the Court on 21 October 2015, she conducted herself in a most inappropriate fashion, and were it to be replicated for the appeal, it would make the hearing of the appeal impossible. The appellant is clear that she understands conduct of the type that she indulged in on 21 October 2015 cannot be tolerated. It will not be tolerated on 8 March 2016, whether she appears in person or by video.
One of the advantages of the video link from the Court’s perspective is that if the appellant does behave on 8 March 2016 as she did on 21 October 2015, then there are steps available to the Court which would limit the impact of poor behaviour that would not be available were she to appear in person.
So, in short, the combined effect of the advantages to the Court of a video link hearing, the limited time it is expected the appeal would involve, and the modest amount of material involved in the appeal, in combination with the vast distance between Cairns and Sydney, persuades me that the appellant should be given the opportunity to appear by video from Cairns on the hearing. That opportunity having been extended to the appellant, it is fair to the respondent that he not be expected to come from Canberra for the appeal, and he too may appear by video from the nearest registry to him. He does not have to, and, of course, is entitled to appear in person.
I would ask each of the parties that if they do decide to appear in person, they let the Appeal Registrar know no later than a week beforehand. There is quite some effort from the Court’s point of view in arranging courtrooms in a number of locations, and I do not want to put the registry to that additional effort if parties intend to appear in person.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 January 2016.
Associate:
Date: 1 February 2016
0
0
0