Orpheus and Orpheus
[2013] FamCAFC 173
FAMILY COURT OF AUSTRALIA
| ORPHEUS & ORPHEUS | [2013] FamCAFC 173 |
| FAMILY LAW – APPEAL – Application by the appellant for an adjournment of the hearing of an appeal which had been expedited at the appellant’s request – Where the respondent did not oppose the adjournment – Where both parties had been informed it should not be assumed the appeal would be adjourned – Where counsel for the appellant appeared without instructions to argue the appeal – Adjournment granted as the Court had been presented with a fait accompli. |
| APPLICANT: | Mr Orpheus |
| RESPONDENT: | Ms Orpheus |
| FILE NUMBER: | MLC | 9641 | of | 2011 |
| APPEAL NUMBER: | SOA | 44 | of | 2013 |
| DATE DELIVERED: | 14 October 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thackray, Strickland and Murphy JJ |
| HEARING DATE: | 14 October 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 7 June 2013 |
| LOWER COURT MNC: | [2013] FCCA 465 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr MacFarlane |
| SOLICITOR FOR THE APPLICANT: | Perisic Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Teicher |
| SOLICITOR FOR THE RESPONDENT: | Melbourne Legal Partners Pty Ltd |
Orders
The hearing of the appeal be adjourned, if practicable, to the first sittings of the Full Court in Melbourne in 2014.
The appellant file and serve a summary of argument and a list of authorities by 22 November 2013.
The respondent file and serve a summary of argument and a list of authorities by 13 December 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Orpheus & Orpheus has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 44 of 2013
File Number: MLC 9641 of 2011
| Mr Orpheus |
Applicant
And
| Ms Orpheus |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
THACKRAY J
Before the Court is the oral application of the appellant seeking an adjournment of the appeal listed for hearing today.
The application is not opposed by the respondent.
The substantive matter, which came before Federal Magistrate Connolly (as he then was) on 18 February 2013, relates to the best interests of two relatively young children.
On 7 June 2013, his Honour determined that the existing shared care arrangement for the children should end and made an order allowing the respondent to relocate them from the H area to Melbourne. The appellant was aggrieved by the decision and, within time, filed an appeal.
The proceedings came before Strickland J on 15 August 2013 on the appellant’s application for expedition of the appeal, after the trial Judge dismissed an application for a stay. Having heard the appellant’s pleas concerning the urgency of the matter, Strickland J expedited the appeal to the first sittings of the Full Court in Melbourne in 2014 but, so I gather, also advised that inquiry would be made as to the possibility of the matter being expedited further still.
On approach being made to higher authorities, it was ascertained that it was possible for the appeal to be further expedited so that it could be heard in the Full Court sittings in Melbourne this week. The appeal was therefore given priority over other matters and a special sitting of the Full Court was arranged to hear this important issue. As has already been mentioned in the course of submissions today, three judges and their staff have been flown in from other parts of Australia to hear this matter and ensure it receives a prompt resolution.
In the meantime, the matter came on for directions on 3 September 2013, at which time the presiding Registrar confirmed the appeal would be heard today. The Registrar also made directions for the filing of documents to ensure that the appeal could be argued today. Amongst other things, the Registrar directed that the summary of argument and list of authorities to be relied upon should be filed by the appellant no later than 1 October and by the respondent no later that 10 October 2013.
We have been informed that Mr Mort of counsel, who has been involved in the matter for some time, and who would have been aware of the listing of the appeal today, was sent a brief late in September, although we are told that he did not sight the brief until early in October. In any event, the brief requested Mr Mort to prepare the summary of argument and the list of authorities required pursuant to the directions made on 3 September 2013.
We are now advised by Mr MacFarlane of counsel that, due to Mr Mort’s “back-to-back commitments”, it proved impossible to prepare the summary of argument, which is, of course, a document required in every appeal. The necessity to file that document would, therefore, have been known at the time the request was made for expedition of the appeal.
The appellant’s summary having not been provided within the required time, the respondent’s advisers became concerned, knowing that the hearing date was fast approaching – and knowing also that that they too were required to file a summary of argument. They were, however, then advised that the appellant intended to apply for an adjournment. Unsurprisingly, given the orders had not been stayed, the respondent was not troubled about delay and advised the appellant that the adjournment was not opposed.
We are further advised that when the appellant advised the Court it was proposed that the hearing be adjourned the Registrar informed the appellant’s advisers that the consent of the respondent should be sought. It seems this advice was taken as an invitation to cease preparation of the matter for hearing, on the misunderstanding that the adjournment of an expedited appeal is something for the parties alone to determine. Clearly, for reasons I have earlier indicated, the adjournment of an appeal is a matter in which the Court has an interest. It should, therefore, never be assumed in matters before this Court that parties can pick and choose the date on which their matter is to be heard.
The tragedy here is that the adjournment of the hearing, if indeed the matter is adjourned, will be to March 2014, because that is when the Full Court will next sit in Melbourne.
Mr MacFarlane, counsel for the appellant, has been placed in an intolerable position. Having apparently, until now, had no involvement in the matter, he has been sent along today in place of Mr Mort and without the instructing solicitor being present – notwithstanding that last Friday the Registrar advised the solicitors that not only could they not assume the matter was going to be adjourned but that:
·counsel should attend today;
·the parties should attend today; and
·counsel should be prepared to argue the appeal.
Notwithstanding all of this, Mr MacFarlane has been briefed only to apply for an adjournment – and his instructing solicitor is not here.
It goes from all that has passed from the bench this morning that we regard this as an entirely unsatisfactory state of affairs. One can only imagine what the parties think about this turn of events, yet there is a limit beyond which the Court cannot go in ensuring matters are ready for hearing.
In my view, it would be not in the interests of justice; it would not be in the interests of the parties; and it would not be in the interests of the children to require Mr MacFarlane to attempt to present an argument today for which he is not prepared. As I see it, we have therefore been presented with a fait accompli and have no alternative other than to agree to the adjournment that is, in effect, sought by both parties.
I propose therefore that the hearing of the appeal be adjourned to the March 2014 sittings, assuming there is space available for the matter to be heard.
STRICKLAND J
I agree with the reasons of the presiding judge and the orders that his Honour proposes.
MURPHY J
I too agree with the orders proposed by the presiding judge and agree with his Honour’s reasons. I have nothing to add.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 14 October 2013.
Associate:
Date: 31 October 2013
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