Meadows and Meadows
[2018] FamCAFC 76
•16 April 2018
FAMILY COURT OF AUSTRALIA
| MEADOWS & MEADOWS | [2018] FamCAFC 76 |
| FAMILY LAW – APPLICATION IN AN APPEAL – PREPARATION OF APPEAL BOOKS – Where applicant sought an order that the respondent or Regional Appeals Registrar prepare the appeal books – Where the applicant asserts financial difficulties and difficulties associated with residence in a remote location – Where little utility in the appeal - Directions made permitting the applicant to file electronic appeal books. |
| Family Law Rules 2004 (Cth) rr 22.18, 22.39(4) |
| APPLICANT: | Ms Meadows |
| RESPONDENT: | Mr Meadows |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Weate |
| FILE NUMBER: | PAC | 3509 | of | 2013 |
| APPEAL NUMBER: | EA | 113 | of | 2017 |
| DATE DELIVERED: | 16 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 4 April 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 October 2017 |
| LOWER COURT MNC: | [2017] FamCA 907 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Weate & Associates |
Orders
The time within which the wife is to file the appeal books and necessary certificate is extended to 7 May 2018.
The wife is at liberty to elect to provide the appeal books electronically. In the event that the wife so elects the document shall:
(a) be in portable document format (pdf);
(b)be capable of being searchable for specified text (optical character recognition – ocr);
(c) have an index which is paginated to reflect the electronic document;
(d) have each entry in the index bookmarked; and
(e) be set so that when opened:
(i)it shall display at full page width; and
(ii)the bookmarks menu shall be displayed.
In the event that the wife elects to file electronic appeal books, she shall on or before 4.30pm on 7 May 2018 file the appeal books as follows:
(a)Email the electronic appeal book, together with a certificate pursuant to Rule 22.20(2) of the Family Law Rules 2004, to Eastern Appeals Registry using the email address …@familycourt.gov.au; and
(b)Email the consolidated electronic transcript to Eastern Appeals Registry using the email address …@familycourt.gov.au
In the event that the wife elects to file electronic appeal books, on or before 4.30pm on 7 May 2018 she shall serve the appeal books on the respondent and the Independent Children’s Lawyer as follows:
(a)Email the electronic appeal book to the respondent and the Independent Children’s Lawyer, together with a certificate pursuant to Rule 22.20(2) of the Family Law Rules 2004; and
(b)Email the consolidated electronic transcript to the respondent and the Independent Children’s Lawyer.
The application in an appeal filed 19 March 2018 is otherwise dismissed.
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 Meadows & Meadows 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 113 of 2017
File Number: PAC 3509 of 2013
| Ms Meadows |
Applicant
And
| Mr Meadows |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By an amended application in an appeal filed 19 March 2018, Ms Meadows (“the wife”) seeks a number of procedural orders, namely, that Mr Meadows (“the husband”) prepare and bear the costs of the appeal books in an appeal lodged by her or, in the alternative, the Regional Appeal Registrar prepares the appeal books. In addition, the wife seeks that the Independent Children’s Lawyer (“ICL”) be ordered to file and serve an updated notice of address for service and that, pending the outcome of this application, an extension of time be granted for the filing of the appeal books, summary of arguments and lists of authorities.
The appeal (EA 113 of 2017) filed 8 November 2017 is against interim parenting and other orders made by Le Poer Trench J on 11 October 2017. The parenting proceedings concern the parties’ daughter, child B (“the child”), born in 2011.
The husband is the respondent to this application and to the appeal and seeks that they be dismissed.
The ICL’s position is essentially neutral, albeit she does not agree to communicate with the wife by email.
On 11 October 2017 Le Poer Trench J dismissed applications filed by the wife on 22 February 2017, 5 May 2017 and 7 September 2017 which, inter alia, sought to set aside orders of 10 January 2017, have the child returned to her care and urgent spouse maintenance. Le Poer Trench J also made orders facilitating the wife’s participation in a psychiatric assessment.
I observe that the wife’s application seeks an order that Orders 3 – 6 of procedural orders made by Registrar Cameron on 6 February 2018 be stayed pending the outcome of this application. Such an order has no utility as the orders made by me today, in effect, vary those made on 6 February 2018.
It is important to note that the appeal relates to various interim orders, some of which will require the wife to be granted leave to appeal. It is far from certain that leave in relation to her claim for urgent spousal maintenance for example, would be secured.
The other important matter is that the proceedings are listed for final hearing in June 2018. The proceedings are now docketed to Stevenson J and it is common ground that the case is well advanced and five days has been allocated for the determination of the parenting and financial dispute.
Discussion
Rule 22.18 of the Family Law Rules (2004) (“the Rules”) provides as follows:
(1) The appellant or, if so ordered, the cross-appellant is responsible for preparing 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 the appeal books:
(a) a respondent;
(b) the Regional Appeal Registrar.
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).
(3) When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.
Note 1 The party filing the appeal books must file and serve the number of copies ordered to be filed (see paragraph 22.17 (2) (c)). The number to be filed will include enough copies for each member of the Full Court. In addition, the number required to be served will be 2 copies for each other party.
Note 2 A party may apply for an extension of time (see rule 1.14).
Note 3 If a party fails to comply with the requirements for filing and serving the appeal books, the appeal is taken to be abandoned (see rule 22.21)
(My emphasis)
The appeal books were due to be filed on 20 March 2018 and have not been filed to date. However, this application was filed before the due date and thus an extension of time to file may be given.
In support of this application the wife relies on two affidavits filed 9 February 2018 and 19 March 2018. In effect, the wife submits that her financial circumstances are such that she is under financial hardship and is unable to pay for and prepare the appeal books. She says she has satisfied the test of exceptional hardship.
The wife is unemployed and receives a Centrelink of $592.30 per fortnight. Her credit card is overdrawn and she has a number of payment plans in place to manage this and other debts owed to various government departments.
The wife currently lives in regional NSW, approximately a one to two hour drive to J Town. She is actively seeking employment.
The wife submits that the costs associated with travelling to Sydney (approximately a four to six hour drive) to copy documents and prepare the appeal books would cause her further financial stress. She does not explain why she needs to do so, given that as a litigant in person she should have copies of all documents listed in the Draft Appeal Index in her possession.
It is the wife’s case that the husband has the financial capacity to prepare the appeal books and as he lives slightly closer to the Appeal Registry than she does it is not unreasonable that he should prepare the documents and for the cost to be borne by him.
The husband opposes the application and submits that he does not have the financial capacity to bear the costs of the appeal books. The child lives with him and he is responsible for all expenses related to the child. As was identified by Le Poer Trench J at [26] the husband’s expenses exceed his income. The husband receives no child support from the wife.
Otherwise the wife’s application to adduce further evidence in the appeal is an application that would be considered by the Full Court and is not an application that should be determined by me now. In accordance with r 22.39(4) this application will be heard on the same date as the hearing of the appeal. As I said during the hearing, the wife does not need the Court’s permission to provide copies of the transcript to the other parties or lawyers who may be retained.
Conclusion
The wife has established that her financial circumstances are parlous and the cost of preparing paper appeal books would be very difficult for her. However, it is not accepted that it is necessary for her to come to Sydney so as to prepare and file the appeal books. The books could, for example, be prepared locally and posted or couriered to the court. Given that the transcript is to be provided electronically, the documents required for the appeal should be able to be contained in a single volume. It follows, that although I am satisfied that the preparation of paper appeal books will cause the wife financial hardship, there is an option which does not impose exceptional hardship.
In deciding whether or not responsibility for the preparation of the appeal books should be imposed on the respondent or the court, I have taken into account the nature of the orders under appeal and the fact that the proceedings are listed for a final hearing in less than three months. That final hearing will enable the disputed evidence to be tested and a decision made in relation to the parties’ child’s living arrangements based on current evidence, including expert evidence and will proceed sooner than the appeal would be. As I attempted to explain to the wife, the parties’ efforts and finances would be better spent addressing the final hearing and thus long term orders, rather than an appeal and application for leave to appeal which is concerned with orders of limited duration. Her decision to pursue an appeal of little utility stands in the way of her being able to satisfy me that leaving her responsible for the preparation of the appeal books would be unfair or contrary to the interests of justice.
Further, the grounds contained in the wife’s notice of appeal are not sufficiently compelling that I could be confident the wife will secure a grant of leave or that she has reasonable prospects of success in her appeal.
All things considered, I am not satisfied that the husband or the Registry should be burdened with the effort and expense of preparing appeal books in relation to an appeal which has little utility.
It is appropriate to extend the time within which the appeal books are to be filed by a period of four weeks. Provision will also be made for the appeal to proceed by way of electronic appeal books, at the wife’s election. The point being, if she is able to comply with the directions that will be made for the preparation of an electronic appeal book, she need not file paper copies. In the event that the wife does so elect the ICL will need to provide an email address for service. The wife should understand that the ICL is entitled to limit the extent to which the email address can be used for other purposes.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 16 April 2018.
Associate:
Date: 16 April 2018
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