MILLWOOD & MILLWOOD - [2020] FamCAFC 246

FAMILY COURT OF AUSTRALIA

MILLWOOD & MILLWOOD

[2020] FamCAFC 246

FAMILY LAW – APPEAL – APPLICATION FOR ADJOURNMENT – Where the father made an application to adjourn the hearing of his appeal against final parenting orders – Appeal previously deemed abandoned and re-instated – Where the father has repeatedly failed to comply with directions and rules of Court in relation to the conduct of the appeal – No satisfactory explanation is provided for his failure to satisfy procedural orders – Effect of ongoing litigation on the child – On balance it is not in the interests of justice to delay the hearing – Applications for costs by the respondent and Independent Children’s Lawyer granted.

APPLICANT:

Mr Millwood

RESPONDENT:

Ms Millwood

INDEPENDENT CHILDREN’S LAWYER:

Blumberg Family Lawyers

FILE NUMBER:

MLC

9337

2014

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

29 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

29 September 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 August 2019

LOWER COURT MNC:

[2019] FamCA 594

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Coulton

SOLICITOR FOR THE APPLICANT:

Rockdene Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Barry Nilsson Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Stapleton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Blumberg Family Lawyers

Orders

That the Application in an Appeal filed 25 September 2020 by the applicant father for an adjournment of the appeal be dismissed.
Other than in relation to the costs of the application for an adjournment, the Response filed by the respondent mother on 29 September 2020 be adjourned to the appeal and listed for hearing at the same time.
That the applicant father pay the respondent mother’s costs of his application for an adjournment in the amount of $5,000 which sum is to be paid within twenty- eight (28) days of the date of these orders.
That the applicant father pay the Independent Children’s Lawyer’s costs of his application for an adjournment in the amount of $1,000 which sum is to be paid within twenty-eight (28) days of the date of these orders.
That the time for the applicant father to file his Summary of Argument and List of Authorities be extended to 4.00 pm on 30 September 2020.
That the time for the respondent mother and the Independent Children’s Lawyer to file their Summaries of Argument and Lists of Authorities be extended to 9.00 am on 6 October 2020, upon condition that unfiled copies of those documents are served on the applicant father no later than 3.00 pm on 5 October 2020 at an email address provided by him or on his behalf.

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 Millwood & Millwood 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: EAA 92 of 2019
File Number: MLC 9337 of 2014

Mr Millwood

Applicant

And

Ms Millwood

Respondent

And

Independent Children’s Lawyer

ex tempore REASONS FOR JUDGMENT

On 23 August 2019 a judge of the Family Court of Australia made final parenting orders in relation to the parties’ daughter, Y born in 2011 (“the child”). Broadly stated, the effect of the orders was to confer on the mother sole parental responsibility for the child, for the child to live with her and to not spend time with the father. For practical purposes, the orders bring the child’s relationship with the father to an end for the foreseeable future. The draconian nature of the orders shows that the primary judge was faced with a most difficult case. For years the parties litigated about their daughter. She had periods of supervised, unsupervised and no contact with the father. She has not had contact with him, as I understand it, since at least mid‑2018. Considered from the child’s perspective, the situation has been chaotic and confusing.
Central to the parties’ disagreement about their daughter is the mother’s unshakeable belief the child has been sexually abused by the father. The primary judge was not satisfied that the father had done so or that there was an unacceptable risk that he might do so. This assessment of risk took into account his Honour’s acceptance of evidence given by Mr F, that when Mr F was a child, the father sexually abused him. Each of the parties was found to have a significant lack in their parenting capacity, specifically in their ability to meet their daughter’s emotional needs.
The primary judge was particularly concerned about the parties’ appalling personal relationship and its effect on the child, in relation to which the judge said:
252. [Dr D] is extremely concerned about [the child’s] mental health. She said that [the child] has become highly embroiled in a complex parental dispute and is distressed and confused about it. She said that [the child] has become overly involved in the proceedings and is at psychological risk as a consequence.
253.In my view, such is the toxicity between the parties that a parenting arrangement which would involve [the child] passing from the care of one parent to the other would carry with it ongoing opportunity for the parents to continue to indulge themselves in using her as an agent through which they can continue the conflict and hostility which has been so distressing and damaging for [the child].
254. Accordingly, I have come to the view that in weighing the risks to [the child’s] psychological and emotional wellbeing if she was to live with the mother and spend unsupervised time with the father, the risks would be greater in such an arrangement than those if she was to live with the mother and not spend time with or communicate with the father.
On 20 September 2019 the father filed a Notice of Appeal seeking to challenge various orders made by the primary judge. The appeal is listed for hearing on 6 October 2020, that is, next Tuesday, one week hence.
By his Application in an Appeal filed on 25 September 2020, the father seeks to adjourn the appeal. The mother and the Independent Children’s Lawyer (“ICL”) oppose the application.
The father has repeatedly failed to comply with directions and relevant rules of Court in relation to the conduct of the appeal. So much so that on 15 September 2020 the Eastern Appeals Registrar wrote to the father in the following terms:
…
By email dated 11 September 2020 I confirmed that you were in default in preparing this appeal for hearing. I note that this email remains unanswered.
To ensure that there is no misunderstanding, procedural orders were made on 11 February 2020 that required you to file and serve a summary of argument and list of authorities by 21 April 2020. No Such documents have been filed to date. I further note that Mr Stephen Gardiner of Counsel was nominated by you as Counsel to be briefed on your behalf for the final hearing.
I confirm that a further email was sent requiring your response on 14 September 2020. No response has been forthcoming.
On the evening of 14 September 2020 formal notice was sent to you at your nominated email address that your appeal has been listed for final hearing before the Full Court at 10.00am on Tuesday, 6 October 2020. Again, no response has been received to this email.
The Eastern Appeals Registry has also unsuccessfully attempted to contact you today on your mobile phone number and the last known land-line number that we have for you.
The Family Law Rules (rule 22.45) provide that if an appellant has not shown reasonable diligence in proceeding with an appeal, the court may list the appeal in order to consider its dismissal on 14 days written notice to the parties.
In accordance with this rule, you are hereby on notice that at the listing of your appeal at 10.00am on Tuesday, 6 October 2020 as previously advised the Full Court may also consider whether to dismiss your appeal for want of prosecution.
(Chronology prepared by the ICL dated 29 September 2020, paragraph 15)
The information contained within the email from the Eastern Appeals Registrar on 15 September 2020 is correct.
In summary, this then means that the digital trial transcript for five of the six days of the trial, was uploaded to the appeal file and portal, on 24 March 2020. The sixth day was uploaded on 27 July 2020. The digital appeal book had been filed some months earlier but it had some difficulties which meant that the digital appeal book had to be rectified. Thus, the Eastern Appeals Registrar bookmarked and paginated the appeal book which has been available since 19 June 2020. On that day, the parties were notified that the digital appeal book was now in proper form and were emailed the link to it.
The significance of these dates is that notwithstanding the father’s explanation for not filing documents by April 2020, in accordance with the procedural orders dated 11 February 2020, there has been no impediment, whether COVID‑19 related or otherwise, which explains his failure to file and serve his Summary of Argument and List of Authorities within a reasonable timeframe from late July 2020.
The father seeks to explain his failure to do so because of difficulties he had with making contact with Mr Gardiner who appeared for him at trial and to otherwise make contact with solicitors. He blames the pandemic and, in his affidavit filed on 25 September 2020, the father explains in broad terms but lacks particularity about attempts he has made to secure legal representation. In exchanges this morning it became clear that the father made contact with his solicitor now retained in the appeal on at least 7 April 2020. It is accepted that the father did not formally engage his current solicitor until just over a week ago, however, no explanation is given by the father for not retaining his current solicitor sooner.
The father has been in litigation in this jurisdiction for something like five years. This is his second appeal. He has previously been in default of procedural steps required to prosecute this appeal. He has successfully applied to have this appeal, which was deemed abandoned, reinstated. In Aldridge J’s reasons for judgment given in favour of reinstatement, it was explained that the father was required to take directions for the conduct of appeals seriously. The mere fact of that application demonstrates that the father understood the steps that can be taken by a party who is in default of their obligations to rectify the situation and to progress the appeal. In short, the father understood what he was obliged to do and that a failure to comply with directions and rules could have serious consequences.
Giving the most benevolent of interpretations to the father’s affidavit and the difficulties that he claims as a litigant in person attempting to manage litigation during the pandemic; I am not satisfied there is any reasonable explanation for his failure to file his Summary of Argument in a timely way after July 2020, or his failure to secure legal representation in an appropriate fashion at about the same time.
As was discussed during submissions this morning, appeals in this Court have continued to be listed in accordance with the calendar which is available on the website. Even the most casual reader examining the Court’s website could see the Court, including the Appeal Division, has been open for business. In terms of “open for business”, the change in the Court’s operations has been that litigants have not been able to attend the registry, including to file documents. However, it is the case that documents in appeals are only accepted for filing by email so in those circumstances, it has been business as usual.
The sorry state of affairs that we now have in this appeal, seems to have resulted from the father simply not doing what he needed to do to in order prosecute the appeal in an appropriate fashion. This somewhat cavalier approach is only reinforced once it is appreciated that he has failed to satisfy the order for costs made against him by Aldridge J arising from his successful application for reinstatement. No explanation is provided in the father’s affidavit or in arguments today for his failure to satisfy those orders.
The Court has done what it could do to accommodate the failure to file the Summary of Argument and last week I granted the father’s application for an extension of time within which that document and the associated List of Authorities could be filed. Those documents are now due this afternoon but it would seem they will not be filed. There must be an end to the indulgences. By reference to [252]–[254] of the trial reasons, to which reference has already been made, the strain that this litigation has caused the parties’ daughter and the respondent is evident. Litigation in relation to parenting matters is no small matter. To allow this appeal to be adjourned now, for in all probability another six months, would place an intolerable burden on the child and the respondent. Given the way the child has been affected by the parental dispute and the litigation, this is a matter to which I attach particular significance.
I appreciate that the solicitor recently retained by the father and counsel who appeared for him today have done the best that could be done for him in very difficult circumstances. All that could be said in favour of an adjournment has been said. But, on balance, I am satisfied that the administration of justice requires that the appeal proceeds as listed next week and the application for an adjournment will be dismissed.
The respondent and the ICL sought an order for costs in the event that the application was unsuccessful. The application has been entirely unsuccessful and it is appropriate that orders be made for the amounts sought.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 29 September 2020.

Associate:

Date: 6 October 2020