Marin & Salmon
[2012] FamCAFC 157
•11 September 2012
FAMILY COURT OF AUSTRALIA
| MARIN & SALMON | [2012] FamCAFC 157 |
| FAMILY LAW – APPEAL – PROCEDURE – Application for Regional Appeals Registrar to prepare appeal books – Where the orders the subject of the appeal appointed a litigation guardian for the appellant in both property and parenting proceedings in the Family Court – Where the appellant’s application was supported by the Independent Children’s Lawyer who was satisfied the appellant has no financial capacity to prepare the books herself – Where the appellant’s position is considered exceptional by reason of the severity of the orders appealed and her dire financial circumstances, and it would impose exceptional hardship to require her to prepare the appeal books – application allowed. FAMILY LAW – APPEAL – PROCEDURE – Application for an extension of time – Where the appellant sought an extension of time or a stay of the appeal proceedings until such time as she has “medical clearance” to continue preparations or alternatively until she obtains Legal Aid funding – Where although there is evidence of the appellant’s significant physical ill health, no evidence supports an adjournment or postponement of the hearing of the appeal or the filing of her summary of argument – application otherwise dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004, rule 22.18 |
| Clivery & Conway [2007] FamCA 1435 |
| APPELLANT: | Ms Marin |
| RESPONDENT: | Mr Salmon |
| INDEPENDENT CHILDREN’S LAWYER: | Kendall Hawdon |
| FILE NUMBER: | BRF 3924 of 2003 |
| APPEAL NUMBER: | NA 66 of 2011 |
| DATE DELIVERED: | 11 September 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 11 September 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 July 2011 |
| LOWER COURT MNC: | 2011 FamCA 664 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person (by telephone) |
| SOLICITOR FOR THE ICL: | Forest Glen Lawyers (by telephone) |
Orders
The Regional Appeals Registrar arrange for the preparation of the appeal books in appeal NA 66/2011.
The Appellant file and serve any additional disputed documents appeal book volumes together with the Summary of Argument and List of Authorities upon which she wishes to rely by 30 November 2012. Any disputed volume is to be tilted Disputed Documents Excluded by the Appeals Registrar from the Appeal Index and the Appellant must file four copies to the Court and deliver one copy to the Respondent and two copies to the Independent Children’s Lawyer by the date provided herein.
The Respondent and the Independent Children’s Lawyer file and serve the Summary of Argument and List of Authorities upon which they wish to rely by the dates provided by the order of Registrar Kane made 10 February 2012.
The Appellant have leave to file an affidavit with further supporting medical evidence in relation to her ability to comply with Order 2 of these orders no later than 23 November 2012.
The Appellant’s application in an appeal filed 8 August 2012 otherwise be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marin & Salmon 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 BRISBANE |
Appeal Number: NA 66 of 2011
File Number: BRF 3924 of 2003
| Ms Marin |
Appellant
And
| Mr Salmon |
Respondent
REASONS FOR JUDGMENT
By an application in an appeal filed on 8 August 2012, the appellant seeks that the Regional Appeals Registrar prepare the appeal books due 10 October 2012, that she be permitted to prepare additional appeal book volumes of disputed documents, and a general extension of time in order to complete “medical investigations and rehabilitation”, and to apply for Legal Aid funding for the appeal and the currently stayed trial proceedings.
The substantive appeal filed on 12 August 2011 relates to an order made by O’Reilly J on 15 July 2011 for the appointment of a case guardian for the appellant in the proceedings between the parties. The notice of appeal asserts denial of natural justice and procedural fairness, and error in the weight attributed to certain evidence before the judge.
The first instance proceedings involve both parenting and property matters. The case guardian order was made following the application of the Independent Children’s Lawyer. Although the Independent Children’s Lawyer’s involvement is limited to the parenting matters, O’Reilly J ordered that the case guardian be appointed in relation to both the parenting and property proceedings.
Procedural preparation towards the hearing of both matters has been stayed by order of O’Reilly J on 5 September 2011, pending the determination of the appeal.
In the normal course of preparations for the appeal, a procedural hearing was conducted by then Regional Appeals Registrar Spink on 7 October 2011. On that date, a draft appeal index was prepared and an order made by consent, giving the parties until 24 December 2011 to make any submissions in relation to the draft index. No submissions were received.
A further procedural hearing was conducted by Regional Appeals Registrar Kane on 10 February 2012. At the hearing, both parties sought amendments to the appeal index, which was subsequently settled and orders made setting a timeline for the filing of the appeal books, the summaries of arguments and list of authorities. The appellant had sought eight months to prepare the appeal books on the basis of “her financial and physical circumstances” (notation on the orders). This was opposed by the respondent father, but the time was nonetheless granted and accordingly the appeal books are due to be filed on 10 October 2012.
Order 4 of the procedural orders provided for the appellant to file and serve by
10 August 2012 any application for orders pursuant to Rule 22.18(2) of the Family Law Rules 2004 (“the Rules”) for the Regional Appeals Registrar to prepare the appeal books. That application was filed on 8 August 2012.
Order 6 of the procedural orders provided that should the appellant dispute the settled appeal book index and argue that further documents should be included in it, she would be at liberty to file a volume which includes such disputed documents.
Orders 7 to 9 set the timeline for the appellant’s, respondent’s and Independent Children’s Lawyer’s summary of argument and list of authorities at
30 November 2012, 21 December 2012 and 25 January 2013 respectively.
At the hearing of this application the Independent Children’s Lawyer advised she supported the appellant’s application for the Regional Appeals Registrar to prepare the appeal books as she was satisfied the appellant has no financial capacity to prepare the books herself. Consent was also extended to the appellant being at liberty to prepare any additional disputed documents in the appeal, and an extension of time provided to do so being reasonable.
The respondent advised he was obviously disinterested about who prepared the appeal books provided they were completed, and was content for the appellant to file any disputed documents The respondent requested any disputed appeal book be filed at the same time as the appellant’s summary of argument, and opposed any other changes to the timeline for the filing of summaries of argument.
Application for Preparation of Appeal Books
Rule 22.18 of the Rules governs the preparation of appeal books:
Preparation of appeal books
(1)The appellant or, if so ordered, the cross-appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books
(a) a respondent;
(b) the Regional Appeal Registrar.
(3)When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.
Note If the Regional Appeal Registrar prepares the appeal books, the appellant or cross-appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).
(emphasis added)
The settled appeal index contains 62 documents (including 35 affidavits) plus exhibits, and 12 transcripts. The first instance file appears to contain each of the transcripts referred to in the index except for one, from 15 May 2006. The Regional Appeals Registrar estimates that it would realistically take one month to prepare the appeal books and sufficient copies.
In support of her application, the appellant filed an affidavit with evidence relating to her financial circumstances and her health. At the hearing some updated documents reflecting the continued status of her financial circumstances as outlined in the affidavit were handed up and the bundle marked as Exhibit 1 in the appeal.
According to an income statement issued from Centrelink on 28 August 2012, the appellant receives as Disability Support Pension in the amount of $695.30, a Pension Supplement of $60.20 and Rent Assistance of approximately $87.90 each per fortnight. The letter records that each benefit was granted from
14 April 2008. From this amount, $44 per fortnight is deducted in Child Support. The Centrelink records also demonstrate a number of “Advance” payments, which the appellant says are Centrelink loans she has taken out to cover legal and medical expenses.
The appellant’s only asset is her interest in the former matrimonial home, which is currently occupied by the husband and has an estimated value of $135,000. Bank statements demonstrate that the appellant has less than $100 in bank accounts. It is apparent from a budget prepared by the appellant that her total estimated expenses (including medical expenses) exceed her total income by approximately $70 per fortnight.
The medical evidence from Dr F (30 July 2012) demonstrates that the appellant has a chronic back condition which requires specialist follow up, ongoing investigations and intense therapy. It is apparent from the other medical documents in the affidavit that the appellant has been suffering from “chronic low back pain” since at least 2008.
The issues raised by the appeal, and indeed the orders which the subject of the appeal, are serious in their nature. At the hearing today the appellant appeared to understand the issues and presented arguments about why the orders should not have been made. Without entering into a detailed consideration of the prospects of success of her appeal, there is some merit to the appeal.
It is extremely unusual for the Court to order that an appellant be relieved of the responsibility to prepare appeal books and that the Court itself take on that burden. I consider the appellant’s position to be exceptional and that it would impose exceptional hardship on her to require the books to be prepared by her. The particular matters are the severity of the orders appealed and the dire financial circumstances of the appellant. Without appeal books the appeal could not be heard.
Application to Prepare Additional Disputed Documents
As mentioned, the procedural orders made 10 February 2012 provided that should the appellant dispute the appeal book index she would be at liberty to file “a Volume” which includes disputed documents.
Any order providing for the Regional Appeals Registrar to prepare the appeal books would not prevent the appellant from filing a disputed documents volume (and sufficient copies).
The appellant does not detail in her application or affidavit what documents she would seek to include in a disputed volume. It is apparent however from correspondence between the Court and the appellant, that the appellant has requested she be provided free of charge with copies of all applications and affidavits filed by the respondent and the Independent Children’s Lawyer in the first instance proceedings. The first instance file is approximately five boxes large, including 207 filed documents in addition to orders, exhibits, transcripts and subpoenaed documents.
The Court does not maintain electronic copies of all documents in each file and to accede to the appellant’s requests for free of charge copies of all documents would significantly impact the Registry in terms of time and cost.
In these circumstances it is appropriate, as is the standard practice of the Registry, to direct that the first instance file be made available to the appellant by appointment with the Regional Appeal Registrar for photocopying. I understand that this will involve a cost of $0.50 per sheet. The appellant has some documents currently in her possession which she apparently will seek to include in this volume.
Application for Extension of time
Though not clear in the application, it became apparent at the hearing that the appellant seeks an indefinite adjournment of document filing dates and the hearing of the appeal. The bases to this request are to: “complete medical investigations rehabilitation requirements” and to gather further documents for the disputed appeal book. It is also to obtain Legal Aid funding for the first instance proceedings “thereby saving all parties costs and time of appeal NA66/2011”. Legal Aid has been refused for the appeal.
I understand the appellant’s proposal to be that the progress of the appeal be stayed until she produces a medical certificate “giving her medical clearance to continue preparation and completion activities” in relation to the appeal. The appellant explained she has a range of medical specialist appointments to arrange and attend in the coming weeks, the outcomes of which she cannot yet predict and therefore cannot advise the length of an adjournment she seeks.
Simultaneously or alternatively, she seeks that that process be stayed until she obtains Legal Aid funding for the first instance proceedings, which she believes would avoid the need for an appeal altogether. It is important the appellant understand that even if she is successful in obtaining Legal Aid or other legal representation in the first instance proceedings, this will not dispense with the order appointing a case guardian. That order must be set aside by the Full Court following a successful appeal, or otherwise upon further application.
As I have outlined above, the documents attached to the appellant’s affidavit in support of her application reveal she suffers from a chronic back condition for which medical advice from Dr F recently is said to require follow up, ongoing investigations and intense therapy. Dr F recommended: “As a result of this [the appellant] has a markedly reduced capacity to perform her usual tasks. I support her application to have the processing of her legal documents performed by the court”.
The principles governing extensions of time in procedural matters are well established. In Clivery & Conway [2007] FamCA 1435 the principles as set out by the High Court in Gallo v Dawson (1990) 93 ALR 479 were discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining 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.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Although there is evidence of the appellant’s significant physical and possible mental ill health, the appellant has not put before me today evidence which would support any adjournment or postponement of the hearing of the appeal or the filing of her summary of argument.
If the appellant is relieved of the responsibility to prepare the appeal books, in order to comply with the procedural orders she would only be required to file a summary of argument by 30 November 2012, approximately two and a half months from now. In addition, the orders I propose to make allow the appellant an extension of time, from 10 October 2012 to 30 November 2012, in which to file a volume of any disputed documents upon which she wishes to rely in the appeal. Such extension is not prejudicial to the respondent.
I am also informed by the Regional Appeals Registrar that the earliest anticipated availability for hearing this appeal would be in the February 2013 Full Court sittings, approximately five months from now. Any affidavit the appellant would wish to rely upon in relation to her health or Legal Aid could be filed before those proceedings are heard.
It is well established that a lack of legal representation is not a basis for non-participation in proceedings. Furthermore it is her own appeal and she has some obligation to prosecute that appeal in accordance with the procedural requirements.
It would be a significant prejudice to the respondent and the interests of finalising litigation if the progress of the appeal were to be halted altogether until the appellant has such “medical clearance”. To do so would further delay the continuation of the parenting and property proceedings, which have now been stayed for one year already and, in light of the timetable I have just set out, are unlikely to continue before mid-2013 at the earliest.
I do not consider, given the extended period already allowed for compliance with the procedural requirements, the unusual orders I propose to make today alleviating the appellant of the responsibility to prepare appeal books, and the length of time between now and the likely hearing of the appeal, that the consequence of not allowing the appellant an extension of time for the filing of her summary of argument will do any injustice to her.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on
11 September 2012.
Associate:
Date: 11 September 2012
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