MALCHER & MALCHER - [2018] FamCAFC 23

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER

[2018] FamCAFC 23

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application to attend by telephone from overseas – Where the appellant has attended by telephone previously – Proceedings conducted in open court – Efficient use of court resources – Failure to comply with directions – Prior conduct demonstrates an inability to manage the complex matter from abroad – Application dismissed.

Family Law Act (1975) (Cth) ss 97, 102D, 102E
Family Law Rules (Cth) 2004 rr 16.05, 22.30, 22.31

Collins v R (1975) 133 CLR 120
Coulter v R (1988) 164 CLR 350
Malcher & Malcher (Security For Costs) [2017] FamCAFC 202

APPLICANT:

Mr Malcher

RESPONDENT:

Ms Malcher

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3808

2012

APPEAL NUMBER:

2017

DATE DELIVERED:

14 February 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

12 February 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 December 2016

LOWER COURT MNC:

[2016] FamCA 1063

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders made on 12 February 2018

That the application by the appellant to attend the appeal electronically be dismissed.
That the time for filing of summary of arguments by the respondent wife and Independent Children’s Lawyer be extended to close of business 6 March 2018.

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 Malcher & Malcher 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 8 of 2017
File Number: SYC 3808 of 2012

Mr Malcher

Appellant

And

Ms Malcher

Respondent

REASONS FOR JUDGMENT

By a request filed on 5 February 2018, Mr Malcher (“the appellant”) sought permission to attend the hearing of his appeal by telephone. Ms Malcher (“the respondent”) is the respondent to the appeal and to the request. Neither she, nor the Independent Children’s Lawyer (“the ICL”) opposes the request but nor do they consent. At the end of the hearing the application was dismissed in relation to which I said I would publish my reasons at a later date. These are those reasons.
The appellant filed a notice of appeal on 6 January 2017. The appeal is now listed for hearing to commence on 20 March 2018. It is anticipated that the appeal hearing will require two days. The unusual circumstances which justify an appeal hearing of that length are set out in the judgment of the Full Court on the respondent wife’s application for security for costs; namely Malcher & Malcher (Security For Costs) [2017] FamCAFC 202 (“security for costs judgment”). It is useful at the outset to note that the trial spanned 33 days and the trial reasons are 437 pages. There are nine volumes of appeal books and the trial transcript is 2,561 pages. In short, there is a vast volume of material to be managed.
Section 97(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that subject to the Act, the Family Law Regulations 1984 and applicable rules of court, proceedings in this court “shall be heard in open court”. Among other things, this principle of open justice means that parties to court proceedings are required to attend in person, or through a lawyer, and present their cases orally in open court: see Coulter v R (1988) 164 CLR 350 at 358; Collins v R (1975) 133 CLR 120 at 122.
In relation to an appeal, the requirement to attend is implicit in the default “non-attendance by party” provisions of r 22.30 of the Family Law Rules 2004 (Cth) (“the Rules”). For example, r 22.30(a) allows the court to dismiss an appeal if the appellant does not, in person or by a lawyer, appear when the appeal is called on for hearing.
It follows, that there is no right to attend the hearing of an appeal by electronic communication. Video-links and audio-links may nonetheless be utilised to make appearances and give submissions, as has been sought here, (ss 102D and 102E of the Act).
An application to attend an appeal by electronic communication is governed by r 22.31 of the Rules. Relevantly, by r 22.31(2), an applicant must file an affidavit which addresses those aspects of r 16.05(3) which are applicable. Although the appellant did not file an affidavit, it is apparent that in relation to the matters listed in r 16.05(3), the appellant does not propose to adduce evidence and said that he would telephone the Full Court from a landline.
It is uncontroversial that the appellant has lived in Europe since late 2015 and according to him, given that he lives abroad, the cost of appearing in person would be financially burdensome (see also r 22.31(4)(a)). In addition, he has been looking for work, and anticipates that he may be required to attend job interviews and/or commence employment in the near future. It is accepted that these matters weigh in favour of the application.
However, there are more compelling reasons associated with the interests of justice that weigh against the application.
As has been alluded to, this is an appeal of some complexity, the hearing of which will require mutual cooperation if the court’s limited resources are to be used efficiently and the appeal completed in the allocated time, for example, by attending on time. It is uncontroversial, that having been afforded the opportunity to attend the respondent’s application for security for costs by telephone the appellant was not in attendance when the hearing was called on at 10:00 am. The matter was stood down until 10:30 am, at which time it commenced even though the appellant had not called in. He joined the hearing at 10:49 am.
In a similar vein, this matter was listed to commence at 11:00 am. When the matter was called on the appellant had not called in. The matter was stood down until 11:15 am when, notwithstanding that the appellant had not called in, the hearing commenced. The appellant called in at 11:27 am. By way of explanation, he said for him it was late in the evening (which it was) and he was unaware that he did not have international roaming on his mobile telephone. Be that as it may be, on both the application for security for costs and this application the appellant has demonstrated an inability to manage hearings from abroad which, in turn, has added to the costs incurred by the respondent and the court.
This lack of attention to timeliness and his failure to conduct the appeal litigation efficiently is also evident in the appellant’s failure to file his summary of argument as ordered. The appellant’s summary of argument was due by 28 July 2017. It was not filed in time and further directions were made so that the time was extended to 29 September 2017. Again the appellant failed to comply and further directions were made which extended the time frame to 15 December 2017. Those orders were not complied with and it was not until 17 January 2018 that the appellant filed his summary of argument. Further instances of default are discussed at [6], [21], [44], [48] and [49] of the security for costs judgment.
It is accepted that the appellant has previously conducted an appeal from abroad by electronic means; however, compared to the appeal under discussion, it was a matter of small compass. In short, the appellant has not demonstrated that he has the ability to manage the complexities of this appeal electronically and, that to grant the request would almost certainly result in a delayed and/or longer appeal hearing than would be the case if the appellant attended personally or through a lawyer.
Otherwise, the most recent information concerning the appellant’s financial circumstances is summarised in the security for costs judgment. His situation is best summarised as follows:
27. His evidence is that he is currently unemployed.
…
30.At best, assuming the husband’s evidence to be complete and accurate (and there is no means of determining otherwise on this application), he has available to him $97,835.01 (the amount in the [HH] account, investment account and the two withdrawals on 28 July 2017). Thus, any order for security for costs will impair his ability to pay for the transcript or settle with his creditors. If he does not settle with his creditors the husband says that bankruptcy is inevitable. Either way the husband submits that any requirement to provide security for costs would stifle the appeal.
Although it is accepted that the cost of attending in person is likely to create some financial difficulty for the appellant, he has not established that he cannot afford the effort and expense of travel to Australia for the appeal hearing. After all, he has, since leaving Australia in November 2015, returned annually on each occasion for at least a few weeks. The appellant has family in Australia with whom, it is inferred, he can be accommodated.
On balance, the interests of justice will be better served if the request is refused. Such an outcome would come as no surprise to the appellant, given that the Full Court in the security for costs judgment said:
36. We note that whilst it is ultimately a matter for the bench that will hear the appeal it is quite unlikely that the husband will be granted leave to appear in that appeal by telephone and that he would therefore need to return to Australia to conduct the appeal or to have a lawyer appear on his behalf. Either course will involve the husband incurring further expense.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 14 February 2018

Associate:

Date: 14 February 2018