FAMILY COURT OF AUSTRALIA
| OSCAR & DELWARE; OSCAR & AUSTEN | [2013] FamCAFC 165 |
| FAMILY LAW – APPEAL – Application for extension of time to review a decision of the Registrar – Leave given – Application to review decision dismissed – Where the appeal is deemed abandoned for failure to comply with procedural directions – Appeal re-instated – Extension of time to file Appeal Books sought by appellant – application to file Appeal Books electronically refused – Extension of time to file appeal books granted for one month – Appeal to be dismissed should Appeal Books not be in accordance with the Rules and within the specified time frame. |
| Family Law Rules 2004 (Cth) |
| APPELLANT IN NA 36 & 37 OF 2012: | Mr Oscar |
| RESPONDENT IN NA 36 OF 2012: | Ms Delware |
| RESPONDENT IN NA 37 OF 2012: | Ms Austen |
| INDEPENDENT CHILDREN’S LAWYER IN NA 36 & 37 OF 2012: | Catherine Bint |
| FILE NUMBERS: | BRC | 4067 | of | 2009 |
| BRC | 4069 | of | 2009 |
| APPEAL NUMBERS: | NA | 36 | of | 2012 |
| NA | 37 | of | 2012 |
| DATE DELIVERED:: | 11 October 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 10 October 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 April 2012 |
| LOWER COURT MNC: | [2012] FamCA 220 [2012] FamCA 211 |
REPRESENTATION
| APPELLANT NA 36 & 37/2012: | Mr Oscar in person |
| RESPONDENT NA 37/2012: | Ms Austen in person (by telephone) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER NA 36 & 37/2012: | CM Bint Family Lawyers |
Orders
Appeals NA 36 of 2012 and NA 37 of 2012 be reinstated.
The appellant is granted an extension of time to file the application in an appeal.
The application in an appeal filed by the appellant on 16 September 2013 be dismissed.
Order (3)(a) of the orders of Registrar Kane made on 23 August 2013 be varied so that the appellant on or before 4.00pm Friday, 8 November 2013, file in the Brisbane Registry of the Family Court four (4) copies of the appeal books for both appeals (NA 36 of 2012 and NA 37 of 2012) in accordance with the attached index of documents.
Further, that the appellant is to prepare the appeal books in the form as set out in Rule 22.20 and provide a certificate pursuant to Rule 22.20(2) of the Family Law Rules 2004.
Order 3(b) of the orders of Registrar Kane made on 23 August 2013 be varied so that if the appellant fails to file the appeal books by 4.00pm on 8 November 2013, appeals NA 36 of 2012 and NA 37 of 2012 be dismissed.
The appellant be permitted to file and serve an amended summary of argument by 4.00pm on 22 November 2013.
Each respondent be permitted to file and serve a summary of argument by 4.00pm on 6 December 2013.
That the Independent Children’s Lawyer be permitted to file and serve a summary of argument on 13 December 2013.
The costs of the Independent Children’s Lawyer of today be reserved to the Full…
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- [2013] FamCAFC 165
- Decision Date
CaseChat Overview and Summary
The court examined Mr Oscar's affidavit, which outlined his reasons for requesting an extension and his inability to afford the cost of printing appeal books. The court noted that Mr Oscar had been granted an extension of five months to prepare his appeal books and had been given more time than usual. The court also considered the lack of specific evidence regarding Mr Oscar's financial situation and his failure to explore other printing options. The court found that Mr Oscar had not shown exceptional hardship, as required by Rule 22.18 of the Family Law Rules 2004, to justify relieving him of the obligation to prepare the appeal books. The court also ruled that electronic filing of appeal books was not permissible under the rules.
The court reinstated the appeals, granted Mr Oscar an extension to file his application in the appeal, and dismissed the application filed on 16 September 2013. It ordered Mr Oscar to file four copies of the appeal books by a specified date and to prepare them in accordance with Rule 22.20 of the Family Law Rules 2004. If Mr Oscar failed to meet the deadline, the appeals would be dismissed. The court also set deadlines for filing summaries of argument by the parties and the Independent Children's Lawyer.
The final orders of the court included reinstating the appeals, varying certain orders of the Registrar, setting deadlines for filing appeal books and summaries of argument, and reserving the costs of the Independent Children's Lawyer to the Full Court.
Orders
Orders of the court
1.
Appeals NA 36 of 2012 and NA 37 of 2012 be reinstated.
2.
The appellant is granted an extension of time to file the application in an appeal.
3.
The application in an appeal filed by the appellant on 16 September 2013 be dismissed.
4.
Order (3)(a) of the orders of Registrar Kane made on 23 August 2013 be varied so that the appellant on or before 4.00pm Friday, 8 November 2013, file in the Brisbane Registry of the Family Court four (4) copies of the appeal books for both appeals (NA 36 of 2012 and NA 37 of 2012) in accordance with the attached index of documents.
5.
Further, that the appellant is to prepare the appeal books in the form as set out in Rule 22.20 and provide a certificate pursuant to Rule 22.20(2) of the Family Law Rules 2004.
6.
Order 3(b) of the orders of Registrar Kane made on 23 August 2013 be varied so that if the appellant fails to file the appeal books by 4.00pm on 8 November 2013, appeals NA 36 of 2012 and NA 37 of 2012 be dismissed.
7.
The appellant be permitted to file and serve an amended summary of argument by 4.00pm on 22 November 2013.
8.
Each respondent be permitted to file and serve a summary of argument by 4.00pm on 6 December 2013.
9.
That the Independent Children’s Lawyer be permitted to file and serve a summary of argument on 13 December 2013.
10.
The costs of the Independent Children’s Lawyer of today be reserved to the Full Court.
FAMILY LAW ACT 1975
IN THE APPELLATE JURISDICTION OF THE
FAMILY COURT OF AUSTRALIA
AT BRISBANE
Appeal No: NA 36 & NA 37 of 2012
File No: BRC 4067/2009 & BRC 4069/2009
BETWEEN: MR OSCAR
(Appellant)
AND: MS DELWARE
(Respondent)
AND: INDEPENDENT CHILDREN'S LAWYER
APPEAL INDEX
TITLE
APPEAL / COURT DOCUMENTS
OSCAR & DELWARE: APPEAL NA 36/2012 FROM BRC 4067/2009
Doc No.
Document
Date Filed
Page No.
1.
Amended Notice of Appeal
8/11/2012
2.
Order of the Honourable Justice Benjamin
5/4/2012
3.
Reasons for Judgment of the Honourable Justice Benjamin
5/4/2012
Relevant previous or subsequent order/s
4.
Order Federal Magistrate Spelleken
21/12/2009
5.
Order of the Honourable Justice Murphy
18/6/2010
6.
Order of Principal Registrar Filippello
25/11/2010
7.
Order of the Honourable Justice Benjamin
22/8/2011
8.
Order of the Honourable Justice Benjamin
26/8/2011
9.
Order of the Honourable Justice Benjamin
29/08/2011
10.
Reasons for Judgment of the Honourable Justice Benjamin
29/8/2011
11.
Order of the Honourable Justice Benjamin
20/1/2012
12.
Order of the Honourable Justice May (Full Court) – NA36/2012
17/7/2012
Application/s / Response/s
13.
Initiating Application filed by Mr Oscar
12/5/2009
14.
Response to Initiating Application filed by Ms Delware
25/11/2009
Affidavits – parties / witnesses
15.
Affidavit of Mr Oscar
12/5/2009
16.
Affidavit of Ms Delware
25/11/2009
17.
Form 4 Notice of Child Abuse or Family Violence filed by Ms Delware
25/11/2009
18.
Form 4 Notice of Child Abuse or Family Violence filed by Mr Oscar
13/5/2010
19.
Affidavit of Mr Oscar
13/5/2010
20.
Affidavit of Mr Oscar
4/10/2010
21.
Affidavit of Ms Delware
20/10/2010
22.
Affidavit of Mr Oscar
15/11/2010
23.
Affidavit of Ms Delware
31/5/2011
24.
Affidavit of Ms Delware Senior
31/5/2011
25.
Affidavit of Mr C
31/5/2011
26.
Affidavit of Mr C
31/5/2011
27.
Affidavit of Mr Oscar
31/5/2011
28.
Affidavit of Mr G
31/5/2011
29.
Affidavit of Ms R
31/5/2011
30.
Character reference by Mr T
31/5/2011
31.
Character reference by Mr E
31/5/2011
32.
Character reference by Ms F
31/5/2011
33.
Affidavit of Mr Oscar
14/6/2011
34.
Affidavit of Mr H
15/6/2011
35.
Affidavit of Mr Oscar
17/6/2011
36.
Affidavit of Ms Delware
24/6/2011
37.
Affidavit of Ms D
30/6/2011
38.
Affidavit of Mr Oscar
20/7/2011
39.
Affidavit of Mr Oscar
9/11/2011
40.
Affidavit of Ms A (attached to affidavit of Mr Oscar filed 9/11/2011)
9/11/2011
Family / expert report/s
41.
Affidavit of Ms O
16/6/2010
42.
Affidavit of Dr V
30/11/2010
43.
Affidavit of Ms O
11/8/2011
Submissions / case outlines
44.
Case Information filed by Ms Delware
29/7/2011
45.
Further Case Information filed by Ms Delware
29/7/2011
46.
Summary of Argument filed by Ms Delware
29/7/2011
47.
Case Information filed by Mr Oscar
29/7/2011
48.
Summary of Argument filed by Mr Oscar
29/7/2011
49.
Case Information filed by the Independent Children’s Lawyer
10/8/2011
50.
Further Case Information filed by Mr Oscar
19/8/2011
51.
Further Summary of Argument by filed Mr Oscar
19/8/2011
52.
Outline of Submissions filed by Ms Delware
29/2/2012
53.
Final Submissions filed by Mr Oscar
21/2/2012
APPEAL / COURT DOCUMENTS
OSCAR & AUSTEN: APPEAL NA37/2012 FROM BRC4069/2009
[Start New Volume]
Doc No.
Document
Date Filed
Page No.
54.
Amended Notice of Appeal
8/11/2012
55.
Order of the Honourable Justice Benjamin
5/4/2012
56.
Reasons for Judgment of the Honourable Justice Benjamin
5/4/2012
Relevant previous or subsequent order/s
57.
Order Federal Magistrate Spelleken (amended 1/2/2010)
21/12/2009
58.
Order of Registrar Turner
1/2/2010
59.
Order of the Honourable Justice Murphy
18/6/2010
60.
Order of Principal Registrar Filippello
25/11/2010
61.
Order of the Honourable Justice Benjamin
22/8/2011
62.
Order of the Honourable Justice Benjamin
26/8/2011
63.
Order of the Honourable Justice Benjamin
29/08/2011
64.
Order of the Honourable Justice Benjamin
20/1/2012
65.
Order of the Honourable Justice May (Full Court) – NA37/2012
17/7/2012
Application/s / Response/s
66.
Amended Initiating Application filed by Mr Oscar
21/8/2009
67.
Amended Response to Initiating Application filed by Ms Austen
6/4/2011
Affidavits – parties / witnesses
68.
Affidavit of Mr Oscar
12/5/2009
69.
Affidavit of Mr Oscar
21/8/2009
70.
Affidavit of Ms Austen
26/11/2009
71.
Form 4 Notice of Child Abuse or Family Violence filed by Ms Austen
27/4/2010
72.
Form 4 Notice of Child Abuse or Family Violence filed by Mr Oscar
13/5/2010
73.
Affidavit of Mr Oscar
13/5/2010
74.
Affidavit of Mr Oscar
4/10/2010
75.
Affidavit of Ms Austen
21/10/2010
76.
Affidavit of Mr Oscar
15/11/2010
77.
Affidavit of Ms Austen
31/5/2011
78.
Affidavit of Ms J
31/5/2011
79.
Affidavit of Mr U
31/5/2011
80.
Affidavit of Mr I
31/5/2011
81.
Affidavit of Mr W
31/5/2011
82.
Affidavit of Ms Austen Senior
31/5/2011
83.
Affidavit of Mr Austen Senior
31/5/2011
84.
Affidavit of Mr G Austen
31/5/2011
85.
Affidavit of Mr C
31/5/2011
86.
Affidavit of Mr C
31/5/2011
87.
Affidavit of Mr Oscar
31/5/2011
88.
Affidavit of Ms A
31/5/2011
89.
Affidavit of Mr G
31/5/2011
90.
Affidavit of Ms R
31/5/2011
91.
Character reference by Mr T
31/5/2011
92.
Character reference by Mr E
31/5/2011
93.
Character reference by Ms F
31/5/2011
94.
Affidavit of Ms D
31/5/2011
95.
Affidavit of Mr H
15/6/2011
96.
Affidavit of Mr Oscar
17/6/2011
97.
Affidavit of Ms Austen
17/6/2011
98.
Affidavit of Mr Oscar
30/6/2011
99.
Affidavit of Ms D
30/6/2011
100.
Affidavit of Mr Oscar
20/7/2011
101.
Affidavit of Ms Austen
29/7/2011
102.
Affidavit of Mr I
17/8/2011
103.
Affidavit of Mr Oscar
9/11/2011
104.
Affidavit of Ms A (attached to affidavit of Mr Oscar filed 9/11/2011)
9/11/2011
105.
Affidavit of Ms X
25/11/2011
106.
Affidavit of Mr U
30/12/2011
Family / expert report/s
107.
Affidavit of Ms O
17/6/2010
108.
Magellan report – Department of Communities
10/6/2010
109.
Affidavit of Dr V
1/12/2010
110.
Affidavit of Ms O
11/8/2011
Submissions / case outlines
111.
Case Information filed by Mr Oscar
29/7/2011
112.
Summary of Argument filed by Mr Oscar
29/7/2011
113.
Case Information filed by Ms Austen
2/8/2011
114.
Summary of Argument filed by Ms Austen
2/8/2011
115.
Case Information filed by the Independent Children’s Lawyer
10/8/2011
116.
Further Case Information filed by Mr Oscar
19/8/2011
117.
Further Summary of Argument by filed Mr Oscar
19/8/2011
118.
Final Submission filed by Ms Austen
6/3/2012
119.
Final Submissions filed by Mr Oscar
9/3/2012
120.
Summary of ICL’s position (both BRC4069/2009 and BRC4067/2009)
14/2/2012
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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. 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. In the appellant’s affidavit in support of this application he sets out the reasons why he should be granted an extension of time. Importantly, the appellant notes that “[he] can afford to file and serve 10 copies of 2 volumes of Appeal books on a digital support but not on paper.” This raises the question of whether this Court should allow the appellant to file electronic appeal books. The Registrar dealt with this application and was correct to refuse the attempt of the appellant to provide appeal books through this manner. In addition the Registrar dealt with the question of whether the appellant had shown “exceptional hardship” so that he should be relieved of the obligation to file appeal books. The Registrar’s reasons are as follows:15. It appears from the appellant’s affidavit and written and oral submissions that he asserts that it would be an exceptional hardship upon him to prepare printed appeal books for three reasons:a) He is financially unable to afford to prepare appeal booksb) He does not have copies of a small number of the documents listed in the indexc) He is entitled to appeal the orders made and the effect of orders requiring him to prepare printed appeal books would be to deprive he and his children of the right to have the appeals heard.16. As to the first ground, the appellant’s evidence of his financial position is limited to an assertion that due to his continuing immigration status he does not have access to Centrelink or any government benefit and lives well under the poverty threshold with income limited to jobs he can obtain while on a Bridging Visa and the charity and compassion of people who provide him with food, shelter and travelling expenses. This general statement is not supported by specific evidence as to his income save for some annexed statements of a bank account with most information redacted, however showing limited crediting to the account. There is no evidence of the actual income which the appellant earned, in particular in the 15 month period of these appeal proceedings.17.The appellant asserts that he has received a quote from a library for $2,000 for printing of the appeal books. There is no written evidence of quotations nor any evidence that he has made enquiries of commercial printers who may be able to provide more competitive quotations.18.The second respondent disputes the appellant’s evidence as to his financial position, asserting that he came to Australia 9 years ago and has been granted a work visa since November 2006 which does allow him to work unrestricted in Australia.19.The source of the respondent’s assertions is not clear on her material. Given the limited nature of a hearing based on written evidence and submissions only, I am unable to reconcile and form a concluded view as to the disputed evidence of the appellant’s financial circumstances.20.Doing the best I can in the circumstances I am satisfied that the appellant may be of somewhat limited means.21. I also have regard [t]o the procedural history of this appeal: the appellant sought and was granted five months in which to prepare his appeal books and where necessary raise/save the monies necessary to pay for the copying, a longer than usual time granted to an appellant; and the appeal proceedings have now been ongoing since May 2012 (some 15 months).22.I am assisted in considering the meaning of ‘exceptional hardship’ upon the basis of financial hardship by the decision of May J in Xuarez & O’Halloran & Anor [2013] FamCAFC 13 [at paragraphs 33 to 38 and 50]33.It is a rare occasion that this Court will exercise the power to relieve an appellant of the obligation to prepare their own appeal books. It should be noted that the Rule confers a power, not an obligation, to make an order. Furthermore this power can only be exercised if the Court is first satisfied of exceptional hardship to the appellant. 34.Indeed many litigants in this Court could demonstrate hardship, by virtue of their financial or other circumstances. However the financial and human resources cost to the Court or a respondent of preparing appeal books, in the place of an appellant, can be very significant. For good reasons therefore, the threshold required by the Rule is exceptional, not hardship generally.35.There is no prescribed definition or test of “exceptional hardship”. It is instructive therefore, to have regard to cases in which its meaning has been considered for the purpose of applications under r 22.18.36.In Marin & Salmon [2012] FamCAFC 157, the appellant applied for the Registrar to prepare the appeal books and the matter was directly listed before me. The appellant raised as grounds of exceptional hardship, financial hardship, and ongoing chronic health conditions. Detailed financial and medical evidence was filed by the appellant in these regards. 37.In that case, the substantive order from which the appellant appealed concerned the appointment of a litigation guardian for her in both parenting and property proceedings. The issues and order the subject of the appeal were therefore very serious in nature. The first instance proceedings, which included the need for orders about the children, had been stayed by the trial judge pending the determination of the appeal, and it was clear that the appeal could not be heard without appeal books. 38.I considered, in the circumstances of that case, that the appellant’s position was exceptional and to require her to prepare the appeal books would impose exceptional hardship on her. I noted in particular the severity of the orders appealed and the dire financial circumstances of the appellant, though these are not determinative factors. It was also of considerable importance to the other parties that the appeal be heard.….50.It is necessary to appreciate the purposes of the Rules as set out in Chapter 1, and the principles of Court case management which have been considered by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. An extensive discussion of case management authorities and the wide discretion of the Court to decide procedural applications by reference to the specific circumstances of cases and parties was given by the Full Court in Bemert & Swallow (2010) FLC 93-441.23. In Xuarez & O’Halloran & Anor Her Honour found ‘(o)n the basis of the evidence adduced and the submissions by the applicant, I am not satisfied that the preparation of the appeal books would visit exceptional hardship on the appellant. His financial position, as a pensioner with virtually no residual income, is not exceptional and is indeed a common position for many litigants in this Court.’ [paragraph 51]24.The appellant’s second ground on his written submissions is that he does not have either ‘clean copies’ or any copies of a limited number of documents. All documents in the appeal index are on the court file. The appellant was able at any time during the five month’s preparation time to request copies of documents from the court to complete his appeal books. There is no record on the file of an earlier request by the appellant for copies of any documents. I have requested that the Court provide to the Appellant copies of the documents able to be identified from the appellant’s material.