Molenaar & Molenaar (No 2)
[2025] FedCFamC1A 52
•26 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Molenaar & Molenaar (No 2) [2025] FedCFamC1A 52
Appeal from: Molenaar & Molenaar [2024] FedCFamC1F 603 Appeal number(s): NAA 265 of 2024 File number: MLC 14377 of 2018 Judgment of: ALSTERGREN CJ, WILLIAMS AND SCHONELL JJ Date of judgment: 26 March 2025 Catchwords: FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Application to adjourn the appeal hearing to allow the appellant time to file his Summary of Argument and listen to the audio of the trial to correct the transcript – Application for the appeal to be dismissed – Where the appellant has already been granted multiple indulgences – Where the utility of the transcript corrections was not identified – Where the appeal is wholly lacking in particulars and clarity – Where the appellant has not filed a Summary of Argument and failed to comply with procedural orders – Where it would be a significant injustice to the respondent to permit the appeal – Application dismissed – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, s 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09, 13.45
Cases cited: Mills & Mills [2022] FedCFamC1A 138 Number of paragraphs: 63 Date of hearing: 5 March 2025 Place: Melbourne The Appellant: Litigant in person Counsel for the Respondent: Mr Korke Solicitor for the Respondent: Ballarat Lawyers The Independent Children's Lawyer: Did not participate ORDERS
NAA 265 of 2024
MLC 14377 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MOLENAAR
Appellant
AND: MS MOLENAAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALSTERGREN CJ, WILLIAMS AND SCHONELL JJ
DATE OF ORDER:
5 MARCH (AMENDED ON 26 MARCH 2025) AND 26 MARCH 2025
ON 5 MARCH 2025 THE COURT ORDERED THAT:
1.The appellant’s Application in an Appeal filed 26 February 2025 is dismissed.
2.The appellant’s Amended Application in an Appeal filed 4 March 2025 is dismissed.
3.The respondent’s Application in an Appeal filed 28 February 2025 is allowed.
4.The appeal is dismissed.
5.Reasons for judgment are reserved.
ON 5 MARCH 2025 THE COURT NOTED THAT:
A.The respondent is to provide to the Court a schedule of costs on a party/party basis in support of their application for costs.
THE COURT FURTHER ORDERS THAT:
1.The respondent’s application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Molenaar & Molenaar has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALSTERGREN CJ, WILLIAMS & SCHONELL JJ
By a Notice of Appeal filed on 11 October 2024, the appellant appeals from all orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 13 September 2024 (“the appealed orders”), following a five-day trial.
The appealed orders include parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”), a property enforcement order, and a costs order.
The parenting orders provide for the respondent to have sole decision-making responsibility for major long-term issues in relation to the parties’ two children, for the children to live with the respondent, no direct time between the children and the appellant, electronic communication between the children and the appellant once a week, various restraints, and for the parents to keep each other advised of their current residential address and contact details.
The property enforcement order requires the appellant to pay a sum to the respondent within 14 days of the orders. The costs order requires the appellant to pay the respondents cost arising from three appearances in May and August 2023.
The respondent opposes the appeal and seeks its dismissal. The Independent Children’s Lawyer filed a Submitting Notice on 28 October 2024.
At the appeal hearing, both the appellant’s adjournment applications filed 26 February 2025 and 4 March 2025 and the substantive appeal were dismissed for the following reasons.
BACKGROUND
In 1996 the appellant sustained an acquired brain injury following an accident.
The parties commenced cohabitation in 2004, married in 2011 and finally separated in July 2018 after a previous short separation.
The two relevant children are X born in 2013, and Y born in 2015.
Final parenting orders were made on 5 February 2021 by Judge McNab (as his Honour then was) providing inter alia for the respondent to have sole parental responsibility for the children and for the children to live primarily with her. The appellant’s time with the children was subject to the substantial supervision or attendance of the paternal grandmother or paternal aunt.
In March 2021, the appellant appealed the 5 February 2021 orders, which appeal was dismissed in November 2021.
In August 2021, the respondent asserted the appellant’s time with the children was not substantially supervised or attended by the paternal grandmother. Thereafter she proposed and continued to offer supervised time between the children and their father, until the trial before the primary judge, which commenced in August 2024.
The appellant disputed that he had failed to comply with the 5 February 2021 orders and declined to avail himself of supervised time with the children. The children have not spent any time with the appellant since around August 2021, except for the Family Report interviews.
In August 2022, the respondent filed an Initiating Application seeking to vary the 5 February 2021 orders, and in September 2022 the appellant filed a Response.
On 9 November 2023, Judge Harland made procedural orders and listed the proceeding for a five-day final hearing commencing on 24 June 2024. On 20 November 2023, the primary judge made orders in Chambers vacating the 24 June 2024 trial date and listed the proceeding for a five-day trial to commence on 12 August 2024.
Notwithstanding that the trial had been listed for trial before the primary judge since 20 November 2023, on the last working day before the trial, the appellant filed an Application in a Proceeding seeking to adjourn the trial.
On the first day of the trial the appellant appeared in person and pursued his application for an adjournment. The adjournment was opposed by counsel for both the respondent and the Independent Children’s Lawyer (Transcript 12 August 2024, p.3 lines 25-30), both of whom were ready to proceed.
The appellant proffered multiple grounds for the adjournment application referred to at [16]-[17] of the reasons. First, the appellant did not agree with the contents of the two Child Expert Reports and sought to challenge the methodology, observations, and conclusions of the reports because he contended the reports were based on false allegations and information. Secondly, he was not prepared for trial, despite having had the benefit of the evidence of the Court Child Expert many months prior to the trial and being aware of the commencement date since the previous November. Lastly, despite a notation to an order having been made pursuant to s 102NA of the Act on 9 November 2023, no lawyer had been appointed to act on his behalf.
The primary judge refused the adjournment application for several reasons. Both the respondent and the Independent Children’s Lawyer were ready to proceed with the trial and the appellant had sufficient prior notice of the expert reports and the scheduled trial date. The primary judge informed the appellant he would have the opportunity to challenge the evidence of the Court Child Expert by cross-examination (Transcript 12 August 2024, p.8 line 4 to p.9 line 2). After a lengthy exchange with the appellant, (Transcript 12 August 2024, p.12 line 10 to p.25 line 38) at [17] of the reasons his Honour determined the appellant had failed to properly engage with Victoria Legal Aid to secure legal representation, as he was required to do.
The trial before the primary judge commenced on the scheduled date. On 13 September 2023, the primary judge made final orders and delivered reasons.
APPLICATIONS IN AN APPEAL
On 27 November 2024 at a procedural hearing, an Appeal Judicial Registrar made procedural orders (“the November 2024 procedural orders”) providing for the appellant to email a consolidated digital transcript to the appeal registry on or before 13 December 2024 and if he failed to do so, the appeal would be deemed abandoned. The procedural orders also required the appellant to file and serve a Summary of Argument by 20 January 2025.
Because the appellant failed to file the consolidated transcript on 13 December 2024, as required by the November 2024 procedural orders, on 16 December 2024 the appellant filed an Application in an Appeal (“the first Application in an Appeal”) seeking to reinstate the appeal, and for the time to file a digital transcript be extended to 18 December 2024.
On 18 December 2024, the Appeal Judicial Registrar made orders in Chambers reinstating the appeal by consent and noted the appellant had complied with his obligation to email to the Registry a digital transcript.
On 20 January 2025, the appellant filed an Application in an Appeal (“the second Application in an Appeal”), seeking orders for an extension of time to file his Summary of Argument and time to enable him to arrange and listen to the audio recording of the trial.
The appellant contended the transcript obtained and filed by him did not accurately reflect the proceedings before the primary judge, and that he had identified numerous errors, inaccuracies, and missing parts in the transcript, including “incorrect words and misspelling’s [sic]” (Appellant’s affidavit filed 20 January 2025, paragraph 12), which may contribute to confusion and misinterpretation.
On 17 February 2025, the respondent filed a Response to an Application in an Appeal seeking dismissal of the second Application in an Appeal, and that the appeal be deemed abandoned.
On 18 February 2025, an Appeal Judicial Registrar heard and determined the second Application in an Appeal and made orders extending the time for the appellant to file his Summary of Argument and List of Authorities to no later than 4.30pm on 24 February 2025, and for the respondent to file and serve her Summary of Argument and List of Authorities by 4.30pm on 3 March 2025. Notably, as of 18 February 2025, the appellant had not identified which parts of the transcript may be inaccurate, nor how such inaccuracies were relevant to his grounds of appeal.
On 26 February 2025, the appellant filed an Application in an Appeal (“the third Application in an Appeal”) seeking a raft of orders. These included an adjournment of the appeal hearing, an extension of time to file a Summary of Argument to an unspecified date, and a final hearing date at least three months after rectification and correction of the transcript, a stay of the appeal “until such time as the transcript is true and factually correct”, the recusal of the Appeal Judicial Registrar from further involvement in the appeal, and permission to adduce further evidence in the appeal. The proposed adjournment would ostensibly enable the appellant to listen to the audio recording, rectify and correct the transcript, and assist him to further articulate his grounds of appeal.
Subsequent to the filing of the third Application in an Appeal, on 27 February 2024, the Appeal Judicial Registrar advised the parties by email that the appeal hearing remained listed for 5 March 2025, the parties would need to attend and the appellant be prepared to argue the application for an adjournment, precisely identify the asserted discrepancies in the transcript and identify why the transcript is required to properly prosecute the appeal. The parties were also advised that if the adjournment were refused, they would need to be prepared argue the substantive appeal.
On 28 February 2025, the respondent filed an Application in an Appeal seeking dismissal of both the appeal pursuant to r 10.09 and/or 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the appellant’s Application in an Appeal.
On 3 March 2025, the respondent filed her Summary of Argument and List of Authorities, in compliance with Order 3 of the 18 February 2025 orders.
On 4 March 2025, the appellant filed an Amended Application in an Appeal (“the fourth Application in an Appeal”), seeking orders in similar terms to those sought in the third Application in an Appeal, together with an order seeking the appeal hearing scheduled for 5 March 2025 be vacated and listed as a directions hearing.
The appellant’s third and fourth Applications in an Appeal and the respondent’s Application in an Appeal were listed for determination on 5 March 2025.
Turning now to the adjournment application.
At the commencement of the appeal hearing the appellant made further oral submissions pertaining to his adjournment application, which was opposed by the respondent’s counsel. The adjournment was dismissed by the Full Court, reasons for which decision were reserved.
The adjournment was refused because the appellant failed to identify and articulate the asserted discrepancies and/or inaccuracies in the transcript and how those inaccuracies established legal, factual or discretionary error, or procedural irregularities on the part of the primary judge, as asserted in his grounds of appeal. The appellant also failed to comply with procedural orders to file a Summary of Argument and List of Authorities, despite having been granted extensions of time to file both documents, when the respondent had complied with her obligations to file both documents.
In his affidavits filed in support of the third and fourth Applications in an Appeal, the appellant said (referring to the alleged transcript inaccuracies), he was “not prepared to disclose any of this information as it may prejudice [himself] in this current appeal” (Appellant’s affidavit filed 3 March 2025, paragraph 12; Appellant’s affidavit filed 4 March 2025, paragraph 12). His oral submissions confirmed his reluctance to do so, other than offering vague assertions about purported inaccuracies. The appellant focused on his need for further time to listen to the audio recording of the transcript to enable him to properly identify inaccuracies and discrepancies between what he asserted was said during the trial, and what was recorded in the transcript.
As submitted by counsel for the respondent, and we agree, on examination the transcript appears to be wholly unremarkable. There are some identified minor typographical errors including an error in the given name of a Family Report writer and the last name of a Senior Judicial Registrar. Such errors are ordinary, typical, inevitable, and are of no import.
In any event, we reject the appellant’s submissions as to lack of time and inability to listen to the audio recording. Reasons were delivered by the primary judge on 13 September 2024, and the appellant had access to the electronic transcript from at least 18 December 2024, which is more than sufficient time to enable him to articulate the perceived discrepancies. Even if the asserted errors had been particularised, the appellant did not cogently, nor at all, address the relevance of the asserted inaccuracies to the rational determination of the grounds of appeal.
Neither did the appellant provide any proper explanation as to why he failed to file a Summary of Argument within the required timeframe, when he was granted an extension of time to do so. There is no logical nexus between the appellant’s asserted concerns about the transcript and his obligations to file a Summary of Argument. It is the appellant’s responsibility to prosecute his appeal in a timely and efficient manner, and he failed to do so.
RESPONDENT’S APPLICATION TO DISMISS THE APPEAL
We now turn to consider the respondent’s application to dismiss the appeal pursuant to r 10.09 and 13.45 of the Rules, as sought in her Application in an Appeal filed 28 February 2025. Although the Application in an Appeal referred to r 10.09, the respondent’s Summary of Argument and oral submissions were directed at r 13.45.
We observe that r 13.45(3) is of no relevance to this appeal, because the application to dismiss the appeal was made by the respondent, and not on the Court’s own initiative.
Subsequent to the dismissal of the appellant’s adjournment application, the Full Court heard and determined the respondent’s application to dismiss the appeal. The appeal was dismissed, and reasons reserved. Following are our reasons.
Rule 13.45 provides:
Dismissal of appeal and applications for non-compliance or delay
(1)This rule applies if:
a.An appeal is not taken to have been abandoned; and
b.A party (the defaulting party) has not;
i.Met a requirement under these Rules or the Family Law Regulations; or
ii.Complied with an order in relation to the appeal (including an application for leave to appeal o any other application in relation to an appeal); or
iii.Shown reasonable diligence in proceeding with an appeal or application.
(2)A court having jurisdiction in the appeal or application may:
a.If the defaulting party is the appellant or the applicant:
i.Dismiss the appeal or application; or
ii.Fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
iii.Proceed to hear the appeal or application.
Counsel for the respondent relied upon the appellant’s failure to comply with and blatant disregard for court orders, notwithstanding indulgences granted to him, his failure to diligently prosecute his appeal and the resultant injustice to the respondent, as considerations relevant to the application to dismiss the appeal.
The authorities relevant to the Court’s exercise of discretion under r 13.45 are conveniently summarised by McClelland DCJ in Mills & Mills [2022] FedCFamC1A 138, where his Honour said:
5Before addressing the specific circumstances of this case, I will set out the relevant law, which has been usefully summarised by the Full Court in the decision of Bethke & Bethke (2019) FLC 93-906, in particular at [25]–[32]:
In Jackamarra v Krakouer (1998) 195 CLR 516 at 528, Gummow & Hayne JJ said:
…when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Applying the above principle, the Full Court in Connor & Cosgrove (2017) FLC 93‑769 (“Connor”) found at [25] that:
…All other things are not equal and it would represent an injustice to the mother to permit the appeal to continue in circumstances where the father would, in all likelihood, not file a summary of argument for at least a further three months…
In Connor, the Full Court cited (at [17]), with approval, McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
Though that case was concerned with time limits for commencing proceedings, the Full Court in Connor stated at [17] that it “nonetheless resonates on the question of delay and justice”.
Similarly, s 97(3) of the Act states:
In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.
Rule 1.04 expresses that the main purpose of the Rules is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. Further, r 1.08 imposes a responsibility on all parties to “promote and achieve the main purpose” of the Rules by inter alia “ensuring readiness for court events” (r 1.08(c)), “complying with time limits” and “assisting the just, timely and cost-effective disposal of cases” (r 1.08 (e) and (g)).
As discussed by the Full Court in Connor at [19], r 22.45 of the Rules is mirrored in r 21(2)(b) of the Court Procedure Rules 2006 (ACT), considered by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 where it was said, at [92], per Gummow, Hayne, Crennan, Kiefel & Bell JJ:
The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: “Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation”.
(Footnotes omitted)
Even allowing for the incarceration of the appellant, he has been given multiple opportunities to prosecute his appeal but has not. He has not filed an Amended Notice of Appeal joining his Trustees as directed by the Registrar since April 2018 (over ten months). Given the procedural history of this matter, the appellant has offered no adequate explanation for his failure to prosecute his appeal.
6I note that the principles referred to by the Full Court, as reflected in r 1.08 of the then applicable Family Law Rules 2004 (Cth) and Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 are now reflected in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Turning now to the application of the relevant principles articulated in those authorities to the facts of this appeal.
The chronology of the appellant’s recalcitrant conduct during the appeal process, which conduct includes his failure to comply with procedural orders, file a digital transcript and file a Summary of Argument articulating the grounds of appeal, is dealt with above. The factors relevant to determination of the application to adjourn the appeal are similarly pertinent to the application to dismiss the substantive appeal.
As at the date of the appeal hearing, 5 March 2025, the appellant had still failed to file a Summary of Argument, despite obviously devoting considerable time and energy to filing the third and fourth Applications in an Appeal, in the days immediately prior to the hearing. He could not possibly have been caught by surprise, as the November 2024 procedural orders alerted him to his obligations to file a Summary of Argument. The appellant’s time would have been more productively utilised by filing documents complying with court orders.
The appellant’s oral submissions focused on his efforts to obtain an audio recording of the transcript, and his inability thus far to listen to the five days of recording to enable him to identify the asserted inaccuracies. He did not provide any acceptable explanation as to why he had not obtained a transcript until around 18 December 2024, having been required to do so five days earlier on 13 December 2024, particularly when reasons were delivered on 13 September 2024. Nor did he explain why he had not thought to obtain an audio recording earlier than he did, when the Notice of Appeal was filed on 11 October 2024.
The appellant also professed to being unaware the appeal would be heard on 5 March 2025. We reject that submission because the Notice of Ceasing to Act filed by his former solicitors on 6 January 2025, states at Part 4:
The next time the case is listed for hearing before the court is on 05/03/2025 at 10.00am for Appeal Final Hearing.
Furthermore, the reasons of the Appeal Judicial Registrar of 19 February 2025 at [16] state the appeal remains listed for final hearing on 5 March 2025. It is inconceivable the appellant would not be aware of the date of the appeal hearing.
Rather than focusing on relevant considerations, much of the appellant’s oral submission were directed to the asserted egregious conduct of the respondent and a Court Child Expert during the hearing before the primary judge. At [15], [18] and [151], the primary judge likewise identified the appellant’s focus and attribution of blame and bias to all those whose opinion differed from the appellant’s narrative.
As articulated above, the appellant failed to particularise the inaccuracies in the transcript, failed to identify why the transcript is required to properly prosecute the appeal, failed to articulate any logical connection between the delays in listening to the audio recording and filing a Summary of Argument as required, and did not even attempt to file a Summary of Argument.
The manner in which the appellant has conducted himself during the protracted litigation also informs his failure generally to diligently prosecute his claims and his inability to focus on relevant considerations. The appellant applied to adjourn the trial before the primary judge for a raft of reasons, all of which were rejected by his Honour. At [36] of the reasons, the primary judge refers to the appellant’s filing of various applications, appeals and reviews, which contributed to the delay in the proceeding coming before the primary judge in August 2024.
As to the prejudice to the respondent if the appeal is not dismissed, none of the documents filed by the appellant refer to a reasonable timeframe within which he anticipates he would be able to comply with procedural orders and file a Summary of Argument to enable the appeal to be determined.
In his third and fourth Applications in an Appeal, the appellant proposed he file a Summary of Argument after amendment of the transcript, absent a precise future timeframe. The appellant further proposed he be permitted to listen to the audio recording and that “all errors found be rectified and corrected”, again with no proposed timeframe nor proposal how the transcript would be so amended. He sought a stay of the appeal and a new date for the appeal hearing no sooner than three months after the corrected transcript is filed with the Court. Additionally, he seeks to be able to adduce further evidence in the appeal, although what that evidence would be, has not been articulated.
It is axiomatic that the appellant’s aspirational orders do not provide any realistic projection of the future conduct of the appeal, nor any proper timeframes. Permitting the appeal to continue, as sought by the appellant, would inevitably invite a hornet’s nest of delay and further prevarication by the appellant, all of which, would be unduly prejudicial to the respondent.
In this case, adopting the terminology of the authorities, “all other things are not equal”, and it would be a significant injustice to the respondent to permit the appeal to continue in circumstances where the appellant is unlikely to promptly or indeed at all identify and particularise asserted inaccuracies in the transcript, identify how the contended inaccuracies are relevant to the grounds of appeal, and unlikely to file a Summary of Argument within a reasonable period.
We observe that the respondent filed a Summary of Argument consistent with procedural orders of 18 February 2025 which included submissions directed to the various grounds of appeal, notwithstanding the obvious difficulties she faced because the appeal is wholly lacking in particulars and clarity.
COSTS
The appellant did not file a Schedule of Costs and because he was self-represented, did not seek any costs. The respondent filed a Schedule of Costs on 28 February 2025 however the costs claimed were on an indemnity basis, rather than party/party costs, as directed by the Appeals Judicial Registrar.
A direction was made on 5 March 2025 for the respondent to file and provide to the Court a Schedule of Costs on a party/party basis in support of her application for costs. Subsequently, the respondent filed an updated Schedule of Costs on 6 March 2025, listing her party/party costs as $15,367.34.
Because the respondent failed to comply with procedural orders providing for the filing of a Schedule of Costs, we do not propose to make any costs order arising from the appeal.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren, and Justices Williams and Schonell.
Associate:
Dated: 26 March 2025
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