Lucke and Lucke
[2017] FamCAFC 70
•16 March 2017
FAMILY COURT OF AUSTRALIA
| LUCKE & LUCKE | [2017] FamCAFC 70 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant seeks to reinstate an appeal deemed abandoned by operation of r 22.13(3) of the Family Law Rules 2004 (Cth) – Where the appeal is against interlocutory orders and leave to appeal is required – Where the grounds of appeal are so devoid of merit that a grant of leave to appeal would be futile – Application dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) ss 4, 94AAA, 94AA |
Family Law (Fees) Regulation 2012 (Cth)
Family Law Rules 2004 (Cth) r 22.13
Commonwealth v Mullane (1961) 106 CLR 166
Gallo v Dawson (1990) 93 ALR 479
Hart & Sellwood (2016) FLC 93-753
Jackamarra (an infant) v Krakouer (1998) 195 CLR 516
Lenova & Lenova (Costs) [2011] FamCAFC 141
Tallant & Kelsey (2016) FLC 93-742
| APPLICANT: | Mr Lucke |
| RESPONDENT: | Ms Lucke |
| INDEPENDENT CHILDREN’S LAWYER: | Kelly Hardie |
| FILE NUMBER: | DUC | 409 | of | 2015 |
| APPEAL NUMBER: | EA | 10 | of | 2017 |
| DATE DELIVERED: | 16 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 16 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS MADE: | 14 December 2016 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Lees solicitor by telephone |
| SOLICITOR FOR THE RESPONDENT: | North and Badgery |
| COUNSEL FOR THE ICL: | Mr Berry |
| SOLICITOR FOR THE ICL: | Kelly Hardie Solicitors |
Orders
The husband’s oral application seeking an adjournment of today’s proceedings is refused.
The husband’s Application in an Appeal filed on 2 March 2017 is dismissed.
There be no order as to costs.
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 Lucke & Lucke 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 SYDNEY |
Appeal Number: EA 10 of 2017
File Number: DUC 409 of 2015
| Mr Lucke |
Applicant
and
| Ms Lucke |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Mr Lucke (“the applicant”) seeks to reinstate his appeal from orders made by Judge Dunkley on 14 December 2016. A Notice of Appeal was filed on 11 January 2017, but no Draft Appeal Index was filed in accordance with r 22.13(2) of the Family Law Rules 2004 (Cth). The appeal was deemed to be abandoned on 8 February 2017 for that reason (r 22.13(3)).
The orders appealed from were made in contested parenting proceedings between the applicant and Ms Lucke (“the respondent”). On 14 December 2016 the primary judge fixed the proceedings for a final hearing on 13 November 2017. A suite of orders was made to ensure that the matter was ready for that hearing, including directions for the filing of affidavits.
The applicant appealed against the following six orders:
5.The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
6.No party shall be entitled to rely on any Affidavit material not filed and served in accordance with these directions without leave of the Court first had and obtained.
7.The Independent Children’s Lawyer is to within 42 days of the date hereof notify the Family Report writer of the dates for Final Hearing and advise them that they are required for the purposes of cross examination at a date and at a time to be further advised.
8.In the event that no such notice is given to the Family Report writer or the Family Report writer is unavailable, the Family Report will be admitted into evidence without cross examination, subject to any objection.
9.Grant leave to each party to issue more than 5 subpoena.
10.The Application in a Case filed 8 December 2016 is dismissed.
At the conclusion of his submissions today, the applicant sought an adjournment. He said that he has consulted Mr B, who is a solicitor who he wishes to have appear for him on the application. Mr B apparently cannot be here today because he is elderly, being 80 years old, and ill. An adjournment of some four to six weeks was sought for that purpose.
Ordinarily, there would be some force in such an application, particularly given that the applicant is acting for himself. But given the nature of the orders appealed from and the nature of the appeal, as I shall explain shortly, I am of the view that there is nothing to be gained by such an adjournment, and that the applicant has in fact said everything he could say in support of his application.
I also take into account the fact that costs will be incurred by both the independent children’s lawyer and the respondent, who is legally represented. There is no offer to pay the costs of those persons thrown away by any adjournment, and they will be out of pocket to that extent if an adjournment is granted. Accordingly, the application for an adjournment is refused.
The principles that apply in a case such as this have been conveniently set out in Gallo v Dawson (1990) 93 ALR 479 at 480. The discretion to grant an extension of time or reinstate an appeal will only be exercised in favour of an applicant if strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
However, as the High Court pointed out in Jackamarra (an infant) v Krakouer (1998) 195 CLR 516, the considerations are slightly different once an appeal has been regularly commenced. Generally speaking, an appellant should not be lightly deprived of his or her right to appeal through a failure to meet a procedural requirement. This, of course, otherwise if the grounds of appeal are so devoid of merit that any appeal would be futile. The aim overall is to do justice between the parties.
The present application was filed on 2 March 2017, which was reasonably promptly after the appeal was deemed to be abandoned. The applicant does not give any explanation for not filing the Draft Appeal Index in time, other than to say he did not receive any instructions on how to prosecute an appeal at the time he filed his Notice of Appeal. He says although he is studying for a law related qualification, he is a layperson when it comes to family law. That may be so, but the rules of Court apply equally for litigants acting for themselves as well as lawyers. There is no obligation on the registry to instruct litigants as to how to prepare or prosecute their appeals. I consider that the reason for delay in filing the index has not been satisfactorily explained. No indication has been given when it will be ready.
Turning now to the merits of the appeal, orders 5 to 9 made by the primary judge are clearly procedural orders made prior to the final hearing. Under s 94AAA(1) of the Family Law Act 1975 (Cth) (“the Act”), an appeal lies to the Family Court from a decree of the Federal Circuit Court of Australia. A decree is defined by section 4(1) of the Act as:
“decree” means decree, judgment or order and includes:
(a)an order dismissing an application; or
(b)a refusal to make a decree or order.
I have grave doubts as to whether orders 5 to 9 appealed from constitute such a decree. The orders did not determine any part of the proceedings. The orders could have been varied by the primary judge at any time: see Commonwealth v Mullane (1961) 106 CLR 166; Tallant & Kelsey (2016) FLC 93-742 at [18] to [22]; and Hart & Sellwood (2016) FLC 93-753.
In any event, it is clear that these orders are procedural orders, notwithstanding that they are made in parenting proceedings which concern a child welfare matter. Accordingly, leave to appeal is required under s 94AA(1) of the Act. The orders do not involve any aspect of parental responsibility (as contrasted to, for example, an order that a child attend upon a family consultant: see Tallant & Kelsey at [7]; Hart & Sellwood at [26] to [30]).
Whilst the discretion to grant leave under section 94AA(1) is entirely unfettered, generally speaking a useful guideline is to consider whether there is sufficient doubt to warrant the orders being reconsidered on an appeal, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. It is instructive at this point to look at the grounds of appeal relevant to orders 5 to 9 (as best as they can be read from the Notice of Appeal, which has been filled in by hand):
5. Judgs saying if I go to full hearing I will be responsible to full costs of Kelly Hardi children’s lawyer.
6. If I file documents sent to Attorney Generals Canberra I have to see leave first.
7. The family report writer [Mr C] is in miss conduct false statements officer of the commonwealth section 75v Australian Constuition Chapter III Courts Australian Constuin.
8.The judge is in error saying what he said in paragrapt 8, family report into evidence with out cross examination, [Mr C] is curupt making false reports, CCTV footage from [D] Regional Council will prove me innonence of the ellagations made by [Mr C], see report to Attorney Generals Canberra. No explanation from the judge.
9. Grant leave to each partey to issue moore then 5 subpoena did not explain this.
10. The Application in a Case filled 8 December 2016 was dismissed. CCTV footage evidence from [D] Regional Council dismissed with out no explanaition in eror because he said I can no allow this with out any reason.
Ground 5 is a misconception. There is no order that the applicant pay the cost of the Independent Children’s Lawyer. There was only an order that the “party responsible” pay the fees imposed by the Family Law (Fees) Regulation 2012 (Cth) for the setting down and hearing of the matter.
None of the other grounds bespeak any error. The applicant was particularly critical of Order 8, which creates the default position that the family report was to be admitted in certain circumstances. Of course, the critical words subject to objection appear at the end of that order. If, indeed, there is cogent evidence – for example, in the CCTV footage relied upon by the applicant – to suggest that there are significant factual errors in the family report, it is difficult to see in what circumstances that report would be admitted without giving the applicant at least the entitlement to cross-examine upon it.
In any event, that is a matter that can be dealt with at the final hearing. The applicant’s rights in relation to the family report and the cross-examination of the writer have not yet been finally determined. That will occur at the final hearing. Accordingly, I’m not satisfied that any injustice at all, let alone any substantial injustice, would flow if orders 5 to 9 remained in place. They are perfectly ordinary orders designed to prepare a matter for hearing. Finally, as I have already said, the orders are capable of variation at any time.
I turn now to ground 10, which is an appeal against the dismissal of an application in a case. The transcript relevant to that aspect of the matter is:
HIS HONOUR: Yes. That’s all right. Thank you. Now, you want an application in a case. Let me find that. So the application in a case was filed 8 December and says:
Copy of USB drive subpoena CCTV footage 28 September 2016 [D] Regional Council.
Is that it?
MR [LUCKE]: That’s correct, your Honour.
HIS HONOUR: All right. Then you don’t do that by an application in a case. You serve a subpoena on the [D] Council.
MR [LUCKE]: No, I already have a copy in the registry here. I wanted to get another copy for my own – preparing the case, your Honour.
HIS HONOUR: Correct. So you serve a subpoena on the [D] Regional Council, that’s what you do.
MS HARDIE: I - - -
MR [LUCKE]: No, I’ve already received the – they’ve already viewed it in the office here, the registry office.
HIS HONOUR: Right.
MR [LUCKE]: And I wanted to get another copy so I can prepare my own case.
HIS HONOUR: No, you don’t get that. You deal with it here. You don’t get a copy of it.
MR [LUCKE]: Is it possible to have it played here today?
HIS HONOUR: No. Don’t need to. Why do I need to play it here today?
MR [LUCKE]: Well, there are certain allegations with the CCTV footage, your Honour, that has been raised against [Mr C].
HIS HONOUR: Sure. We will play at the final hearing. That’s what’s going to happen on the eighteenth of – on 13 November.
MR [LUCKE]: But I still require a copy so I can prepare my time – telephone records and everything – what happened with the people in the copy of that - - -
HIS HONOUR: Sure. You don’t need a copy. You can view it here. So I’m not providing a copy to you.
MR [LUCKE]: But I would view it with my partner - - -
HIS HONOUR: Why would she - - -
MR [LUCKE]: - - - or another person?
HIS HONOUR: No. Why do they need to view it? They weren’t involved, were they?
MR [LUCKE]: Sort – partly involved, yes.
HIS HONOUR: No. The application in a case filed 8 December 2016 is dismissed. So you can view it here by arrangement, make notes, whatever you like.
The significant aspect of the applicant’s complaint is that his Application in a Case was dismissed without reasons. As the transcript makes clear, the primary judge said that the footage would be played at the final hearing. His Honour declined to have the court prepare a copy of the footage, which was obtained by way of a subpoena from D Regional Council. His Honour declined to have the Court provide a copy because the applicant had already viewed it at court and could do so again whenever he chose to. None of the other parties was granted leave to obtain a copy.
Whilst different judges may have made a different direction, I am unable to distil any error in the making of this order. The mere fact that a different order might be made by a different judge does not establish error.
The real nub of the applicant’s complaint is that he believes that the factual statements made in the family report will be shown to be incorrect once the CCTV footage is shown. This, the applicant asserts, will lead to the family report being excluded.
These are very much matters for a final hearing. The primary judge recognised this, as I have already indicated. It would be a most unusual course for a hearing to be heard in stages, and for there to be a pre-emptive strike against the family report on matters of credit to be taken in advance of the final hearing.
Finally, it is useful to refer to the orders that the applicant seeks in lieu of the orders made by the primary judge:
1. I be allowed to have a copy subpoena of [D] Regional Council.
2. [Mr C] dissaplained under section 75v of the Australian Constuation, officer of the Commonwealth for making false statments in his report 28th September 16.
3. Be allowed to cross examine [Mr C] of his miss conduct.
4. That Order 8 be dissimissed.
5. Independent Childerns Lawyer Kelly Hardie be made to follow the role of Australian Institute of Family Studies October 2014 and meet the requirements of Kaspien et/al/report 2013.
As to order 1, the applicant has already served a subpoena on D Council. Presumably that refers to obtaining a copy of what has already been produced, and I have already said enough about that issue.
Orders 2 and 5 do not flow from the orders appealed from at all and would not be made even if the appeal were otherwise allowed.
Order 3, again, does not flow from the orders appealed from, but in any event there is no suggestion anywhere in the orders that the applicant will not be allowed to cross-examine Mr C in due course.
Proposed order 4 does flow from the orders appealed from, but as I have said there is no basis to that ground of the appeal.
It is difficult, again, to see what substantial injustice will flow from the dismissal of the Application in a Case. The applicant will still be able to view the CCTV footage whenever he chooses by arrangement with the registry. Whilst it may be difficult for Mr B to view the footage, due to his age and the fact that he lives in Sydney, that was not something that was put to Judge Dunkley.
In my opinion, the prospects of granting leave to appeal are remote. Even if leave was to be granted, I consider that the grounds of appeal are so devoid of merit that any appeal would be futile.
These matters and the less than satisfactory explanation for not filing a Draft Appeal Index in time indicate that this appeal should not be reinstated.
The Application in an Appeal is dismissed.
Costs of the ICL
As is required, no doubt, of the grant of legal aid, the counsel for the independent children’s lawyer seeks an order for the costs of this application, pointing out that it has been wholly unsuccessful. That is true.
The applicant indicates that he is on a disability pension, and will not have the means to pay any costs order. Whilst it is true that impecuniosity of itself is not necessarily a bar to a costs order (see Lenova & Lenova (Costs) [2011] FamCAFC 141), in this case, taking into account the lack of success and taking into account the applicant’s financial position, I am not satisfied that the circumstances justify a costs order.
There will be accordingly no order as to costs.
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 16 March 2017.
Associate:
Date: 26 April 2017
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