Oscar and Delware; Oscar and Austen - [2013] FamCAFC 165

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 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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oscar & Delaware; Oscar & Austen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 36 & 37 of 2012
File Number: BRC 4067 of 2009 & BRC 4069 of 2009

Ms Oscar

Appellant

And

Ms Delware

Respondent

And

Ms Austen

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The proceedings concern an application in an appeal filed by Mr Oscar ("the appellant") on 16 September 2013 seeking an extension of time to review the orders made by Registrar Kane on 23 August 2013. Compliance with Rule 22.40 of the Family Law Rules 2004 (“the Rules”) would have demanded that the application for review was filed by 6 September 2013.
The appellant appeared in person, assisted at his request by an interpreter arranged by the court at the court’s expense. There was no appearance by Ms Delware. Ms Austen appeared in person by telephone. There was an appearance for the Independent Children's Lawyer limited to informing the court that she sought leave to file a Notice of Address for Service.

History of the proceedings

(a) The trial

On 5 April 2012, Justice Benjamin delivered judgment in respect of two parenting matters in which the appellant was the applicant. In Oscar & Austen (BRC 4069 of 2009), the appellant sought parenting orders in respect of the child, Z (aged five at the conclusion of the hearing), of his relationship with Ms Austen. In Oscar & Delware (BRC 4067 of 2009), the appellant sought parenting orders in respect of the child, B (aged three at the time of the hearing), of his relationship with Ms Delware.
The circumstances were such that all parties consented to concurrent proceedings and a joint trial was held, with the same evidence being made available in each proceeding. The proceedings were conducted according to the Court's Magellan protocols. An Independent Children's Lawyer was appointed.
The proceedings before the trial judge, which took place over twelve days, were complex. There were allegations of sexual abuse, allegations of family violence, uncertainty surrounding the appellant’s immigration status, and alleged misuse of an interpreter in the proceedings.
In both applications, the appellant sought orders for shared parental responsibility, time with each respective child to graduate from supervised to unsupervised time, and for such time spent with each subject child to be harmonized with his time with the other subject child. Once each of the subject children reached school age, the appellant sought orders for time each alternate weekend and half of school holidays.
In both applications, the respective respondent mothers both sought orders for sole parental responsibility and for the appellant to have no contact, other than by way of cards and letters from the father and his family on special occasions. These orders were supported by the Independent Children's Lawyer in each of the applications.
The trial judge made two sets of orders and delivered separate reasons on 5 April 2012.
In respect of both matters, the trial judge, having made positive findings of family violence and also about the appellant’s controlling and abusive nature, concluded that the presumption of shared parental responsibility did not apply in relation to each of the subject children. Further, even if the presumption did apply, his Honour noted that the presumption would be otherwise rebutted in light of the findings with respect to the secondary considerations. His Honour found, in light of the evidence of Ms Delware, Ms Austen, and Dr V, a psychiatrist, that neither Ms Austen nor Ms Delware could communicate with the appellant in a meaningful way. His Honour was satisfied that both mothers ought have sole parental responsibility.
In respect of both matters, his Honour found that it was not possible or feasible for the appellant to spend time with either of the children in light of the impact that this would have on Ms Delware and Ms Austen and in light of there being no good will between the mothers and the appellant.
It is not necessary to quote at length from the reasons of the trial judge save to refer to one paragraph which summarises the most unusual circumstances of this case. At [322] of Oscar & Austen, his Honour states:
In this case it is the combination of sexualised conduct of the father to each of the children and at times their mothers, his physical and emotional abuse of the mothers, his endeavour to (and at times success in) controlling and dominating the mothers, his anger and uncontained behaviour to the mothers and to the children (as referred to in these reasons) make the father an unacceptable risk of abuse or violence to the children as an unsupervised carer of one or other of them. Each of the mothers complains that the father is uncontainable and having observed him and hearing evidence, that complaint is well based.

(b) The appeal proceedings

The orders from which the appellant seeks to appeal provided for essentially the same parenting arrangements for each child: that the mother have sole parental responsibility, including exclusive responsibility to determine where within Australia the child resides, that the child live with the mother and communicate with the father (and his family) only by cards and letters on special days such as birthdays, Father’s Day, Christmas and Easter. Orders were also made restraining the father from approaching, meeting or spending time with each child, and from going to the home or school of the each child and to each mother’s place of employment. It was also ordered that the children’s names be put on the Australian Federal Police airport watch list. According to the father’s draft notices of appeal, he seeks to appeal only those orders which concern parental responsibility, time and communication with the children.
Pursuant to the order of this Court made 17 July 2012 granting the appellant an extension of time to file his appeal by 29 September 2012, on 26 September 2012 the appellant filed two appeals in respect of the decisions of Justice Benjamin. Amended notices of appeal were filed by the appellant on 8 November 2011.

Background to this application

Following a procedural hearing before the Appeals Registrar on 3 December 2012, orders were made, inter alia, for the appellant to file appeal books by 26 April 2013. On 26 April 2013, the appellant filed an application in an appeal as follows:
1. pursuant to rule 22.18 (2) and due to extreme poverty of the appellant applies to the court to assist in and with the final stages of the appeal books (which he has already prepared in digital form) and dispense transcripts, in the alternative the Registrar of the Appeals Court pays for the transcript.
Particulars: (see affidavit with annexure ).
2. Following Documents* to be added to the appeal books and indexed as well as the ones# indicated in the index of the books prepared by the appellant as follows: Doc Nos#.
10, 23(32 pages), 24(6pages), 41 (21pages), 43?, 45, 57 (after Court corrects gross clerical mistakes), 107 (25pages aprox), & 110 (25pages aprox).
Particulars:* a) reasons for judgment of May J on 17/07/2012
b) affidavit of [Mr E] prior cross examination in trial
c) orders of Registrar Kane 22/06/2010, 6/8/2010 and 8/10/2010
d) exhibit sketch showing anatomically impossible kneeling position to be seen
3.under S 9 Federal Proceedings(costs) Act 1981 apply for a cost certificate
That application was set down to be heard on 3 June 2013, however the hearing was adjourned as the appellant did not file an affidavit in support of the application, nor had he served either of the respondents with the application or a supporting affidavit.
The appellant, on 3 June 2013, filed a supporting affidavit and on 27 June 2013, he filed affidavits of service in respect of the application and supporting affidavit.
The appellant’s application of 26 April 2013 was heard by the Appeals Registrar on 19 August 2013.
The appellant cited “extreme poverty” as his reason why this court should be responsible for the preparation of the appeal books, and the reason why the court should either dispense with the requirement for transcripts in the appeal, or bear the cost of the preparation of transcripts if they are considered necessary for the appeal.
On 23 August 2013, Registrar Kane made orders dismissing the application with respect to the Appeals Registrar to prepare the appeal books and required that the appellant prepare appeal books for both appeals giving him an extension of time to file the appeal books to 27 September 2013. As regards the remainder of the application – the dispensation/provision of transcripts, the addition of further documents to the appeal books, and the matter of the costs certificates – these matters were adjourned to be listed for hearing before the Full Court at the same time as the substantive appeals were heard.

It is obvious that if the appeals are not ultimately heard due to non-compliance by the appellant then those applications need not be considered by the Full Court.
It became apparent from the written submissions provided by the appellant in this hearing that he had not understood that he was not required to file the transcripts and that the decision in relation to the transcripts was adjourned to the Full Court for consideration at the same time as the appeal. However, the appellant did not file the appeal books, as ordered.
Returning to the appellant’s application for an extension of time for the review of the order of Registrar Kane being the subject of these proceedings, an essential part of the consideration of whether an extension of time is to be given is the merits of the application.
As mentioned, included in Registrar Kane’s order of 23 August 2013 was the requirement that the appellant file appeal books by 27 September 2013. The appellant has failed to comply with those directions, his application is deemed abandoned. In essence, by seeking to review the decision of the Registrar, the appellant seeks to be relieved of his obligation to file appeal books by 27 September 2013.
Should I determine that the appellant’s obligation to file appeal books should be varied in some way, his appeal would be re-instated and further directions made for the filing of appeal books.
As emerged in the hearing, the appellant asked to be relieved of the obligation to provide a copy of the transcript but insisted that he wished to continue with the appeal.
In support of his application, the appellant filed an affidavit on 16 September 2013. In that affidavit, he details his financial hardship and mental health issues as being the reasons for the delay in filing an application for review of the orders of the Appeals Registrar. He also refers to the issue of the transcripts, specifically that while he cannot afford to pay for the printing costs of physical copies, he is able to provide electronic copies to the court on a “digital support”. It is also asserted that he is suffering from a conflict of interest between the litigation in which he is involved, associated with migration difficulties and also in the Family Court.
The appellant filed a further supporting affidavit on 25 September 2013 in respect of which he refers to the issues of the extension of time, matters that arose during the hearing and in the reasons for decision of the Registrar which ought give rise, he contends, to an extension of time.
The appellant cites stress and anxiety as being the reason for the delay in his application for review of the Registrar’s orders. In support of this the appellant annexes a letter from his general practitioner to his treating psychologist dated 4 September 2013 acknowledging the appellant’s mental health issues. The appellant also annexes a letter from his treating psychologist who describes the mental health issues which the appellant has been suffering from:
…[recommends] to the family Law Court to consider an extension or special considerations where possible for [the appellant] in regards to the upcoming hearing...[The appellant’s] mental state is not conducive to dealing effectively at present with the matter and he will benefit from an extension of time.
There is no medical evidence as to how this stress imposes on the appellant an inability to conduct the proceedings at this time nor, more importantly, a prognosis as to when the situation might change. Obviously, the proper conduct of these proceedings cannot be delayed indefinitely.
In respect of the hearing before Registrar Kane on 19 August 2013, the appellant deposes that he was not aware that the matters of the transcripts and the preparation of the appeal books would be agitated. Rather, in light of the correspondence from the Registrar, the appellant deposes that he was of the view that the hearing would be confined to the matters relating to the addition of documents to the appeal books.
The appellant also deposes that the respondent was under that same impression. This assertion fails to recognise that the appellant had not complied with the previous directions to file appeal books by 26 April 2013. Relying on the Registrar’s reasons for decision, he notes that the respondent did not appear at the hearing of 19 August 2013 because she did not wish to make submissions in respect of the application. It hardly need be said that the inference the appellant wishes to draw is not correct.
The appellant also complains that the Registrar did not provide sufficient reasons as to why transcripts would be required for the entire eleven days of the hearings in circumstances where the appellant had sought only specific sections. Again, this shows a misunderstanding of the order made by the Registrar.
The appellant has failed to explain which parts of the transcript could be described as being irrelevant to his appeal, however that is a matter for the Full Court should the appeal proceed.
In his amended notice of appeal, the appellant has also raised the issue of there being a conflict of interest in the proceedings. In his affidavit of 25 September 2013 he seeks that issue to be dealt with before this Court. What the applicant means by this is not clear. The Registrar was correct in concluding that such a matter should be dealt with in the Full Court and not discreetly.
The respondent, Ms Austen, filed a response to an application in an appeal on 3 October 2013 together with a supporting affidavit. In essence, in emotive language, she resists the appellant’s application and seeks orders for his appeal to be deemed abandoned for non-compliance with the procedural directions. The respondent also asserts that the appellant has the ability to work unrestricted within Australia. Ms Austen is very distressed about the length of these proceedings and that they continue despite the appellant failing to comply.

Addition of documents to the appeal books

At paragraph 25 of the reasons for decision of 23 August 2013, Registrar Kane dealt with the appellant’s proposed orders for additional documents to be filed and the appeal index revised. Registrar Kane stated that she would not be revisiting the issue of the index which had been settled on 3 December 2012. As regards the filing of additional documents, the Registrar made orders for the appellant to be permitted to file and serve a volume of disputed documents should he seek to argue at the hearing of the appeals that further documents are relevant.
Consequently, following the orders of the Registrar, there is no need to address this matter in these reasons.

Preparation of the appeal books

As noted above, the appellant has not complied with the existing orders which relate to the filing of his appeal books. Specifically, order 3(a) of the order of Registrar Kane made 23 August 2013 provided:
That orders 3 to 7 of the orders made on 3 December 2012 in respect of both appeals be extended as follows:
That the Appellant on or before 4pm on Friday 27 September 2013 file 4 copies of the Appeal Books for both appeals, together with a certificate pursuant to Rule 22.20(2) of the Family Law Rules 2004, in the Brisbane Registry and deliver two copies of the appeal books to the Respondent in appal NA36/2012 ([Delware]), 1 copy of the appeal books to the Respondent in appeal NA37/2012 ([Austen]) unless a Notice of Address for Service has been filed by a lawyer for that respondent in which case 2 copies, and 2 copies of the appeal books to the Independent Children’s Lawyer together with a copy of the certificate in relation to both appeals.
As a result of the appellant’s non-compliance with these orders, the appeal is deemed abandoned.
Order 1 of Registrar Kane’s order of 23 August 2013 dismissed the appellant’s application for the appeals registrar to prepare the appeal books pursuant to Rule 22.18(2).
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 books
b) He does not have copies of a small number of the documents
listed in the index
c) 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.
The current orders giving the appellant an extension of time, with which he has not complied, require the appellant to file and serve copies of the appeal books by 27 September 2013. Though the Rules makes provision for how and by whom appeal books are to be prepared, the contents of the appeal books and their format, the Rules do not provide a definition of “appeal book”. The general definition given to “book” in the Oxford English Dictionary is:
A written or printed treatise or series of treatises, occupying several sheets of paper or other substance fastened together so as to compose a material whole.
Although an electronic disk might contain the same information as a book, it cannot fall under the definition of a book unless the legislation provides for it as part of the Rules of Court.
The Rules do not make provision for an appeal to be in electronic form although the Court has power to make orders which are at variance with the Rules should justice demand.
In the absence of provision for electronic appeals it is instructive to consider rules governing the administration of electronic appeals in other jurisdictions.
A practice direction made on 14 August 2012 for the Federal Court of Australia by Keane CJ (as his Honour then was) deals with the issue of electronic appeals. In essence, the direction provides that parties should obtain advice from the National Appeals Registrar before commencing to prepare electronic appeals, and that the appropriateness of such an appeal is a matter for the Court. This direction is set out below.
11. Electronic Appeal
11.1 A party should not commence to prepare an appeal electronically before obtaining advice from the National Appeals Registrar.
11.2 Any request to conduct any part of an appeal electronically must be in writing. The request must specifically outline the proposal. The National Appeals Registrar will liaise, as appropriate, with the local eRegistrar, the Court’s Courtroom Technology Manager and the relevant judge or members of the Full Court. The IT infrastructure, functionality and capabilities of the Federal Court’s courtrooms vary. The appropriateness of an electronic appeal is a matter for the Court.
At state level, in the Queensland Court of Appeal Practice Direction No 3 of 2013 there is provision for how the court is to deal with requests from litigants for their appeal to be conducted electronically. This direction is set out below.
ELECTRONIC APPEALS
7. If a party considers an appeal should be conducted the party must inform the registrar and all other parties of that request at the time the appeal is commenced, or as soon afterwards as is practicable. The Court or a judge of appeal, whether or not at the request of a party, will determine when an appeal will be conducted electronically. The parties must then follow the directions given by the Court, a judge of appeal or registrar in preparing the matter for and conducting the hearing.
Even if this court would be inclined to make such orders, in view of the approach of other courts exercising both state and federal jurisdictions, it can be seen that there are numerous matters to which consideration must be given.
In particular, the court would need to consider the practical effect of an appeal book being in electronic form. If the Court were to manage the appeal as an electronic appeal, then it is necessary to consider whether this registry and the court room to be used would have the ability to conduct an appeal in this manner. It would also be a matter of preference for the judge or judges of the appeal court as to whether they would wish to conduct an appeal electronically.

It is obvious that, if the appellant is given the opportunity of filing electronic appeal books, this would place a considerable burden on the court as no doubt part of the disk would need to be reduced to paper documents. Also, consideration must be given to the burden placed on the respondents who are self-represented and the independent children’s lawyer who is legally aided.
It is not without significance that even if the electronic documents supplied by the appellant (being a USB stick and documents in PDF format) were accepted they are apparently incomplete. As was noted in the reasons for decision of Registrar Kane at paragraph 32:
As stated earlier in these reasons I have had regard to both electronic documents and have also reviewed to the extent possible their contents. I agree with the appellant’s evidence that the electronic versions provided are not complete in that documents are missing notwithstanding the certificate signed by the appellant asserting ‘such appeal papers are in accordance with the index as settled at the procedural hearing’. While I have not reviewed each page of the electronic documents (in two parts estimated by the appellant to contain 358 or 430 pages and 529 or 594 pages) it is immediately apparent also, for example, that none of the pages of the electronic documents are numbered notwithstanding the apparently numbered index.
The appellant has not provided sufficient reasons as to why he should be allowed to file electronic appeal books. It is quite clear that this application is one where he is really asking the Court to prepare his appeal books. There are no features of this case which would cause this court to embark upon such an expensive task. The Registrar’s decision was correct and thus there is no utility in allowing an extension of time to review the decision.
The appellant has not complied with the orders requiring the appeal books to be filed as first required on 26 April 2013 and then by extension of time on 27 September 2013. As such, his appeals are now deemed abandoned pursuant to r 22.21. The appellant now seeks a further extension of time to file the appeal books. To refuse that application would inevitably lead to the appeal not being heard. Obviously it is preferable to hear matters on their merits rather than dismissal by reason of failure to comply with Rules. However, the appellant has failed to provide the appeal books on two occasions.
The position of the respondents and the Independent Children’s Lawyer must be properly considered. Taking into account the appellant’s poor financial circumstances, his health, and that English is not his first language, it would be appropriate to modify the order and the appeal index. At the hearing the appellant submitted that he could file four copies of the appeal books within one month. The number of copies is to be reduced by reason of his financial circumstances. This will place a considerable burden upon the Registry by requiring the copying of the appeal books and service of them upon the two respondents and the Independent Children’s Lawyer.
In addition, the appellant will not be required to provide two sets of appeal books for each matter. The documents are the same, save for the reasons.
In case it is not abundantly clear, should the appellant fail to file four copies of the appeal book, complying with the Rules in every respect and following the index attached to these orders, his appeal will be dismissed.

I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 11 October 2013.

Associate:

Date: 11 October 2013