Padgett & Padgett
[2024] FedCFamC1A 84
•10 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Padgett & Padgett [2024] FedCFamC1A 84
Appeal from: Orders made 29 January 2024 Appeal number: NAA 46 of 2024 File number: 3906 of 2018 Judgment of: O'BRIEN J Date of judgment: 10 May 2024 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Where indefinite extension of time to comply with procedural orders is sought – Where that request is premised on a misapprehension of the relevance of further proceedings not yet commenced – Extension of time to a fixed date granted. Legislation: Family Law Act 1975 (Cth) s 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22
Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Number of paragraphs: 26 Date of hearing: 10 May 2024 Place: Perth The Appellant: Litigant in person Solicitor for the Respondent: Clement and Co ORDERS
NAA 46 of 2024
3906 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PADGETT
Appellant
AND: MR PADGETT
Respondent
ORDER MADE BY:
O'BRIEN J
DATE OF ORDER:
10 MAY 2024
THE COURT ORDERS THAT:
1.The order of the Appeal Registrar dated 15 April 2024, to the extent only that it required the Appellant to prepare, file and serve a separate consolidated electronic transcript is discharged.
2.The time in which the appellant is to file the appeal book is extended to 4.00 pm on 23 May 2024.
3.Pursuant to Rule 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 the appeal will be taken to be abandoned if the Appellant fails to file the electronic appeal book (by downloadable link or other electronic means) by the due date.
4.The time in which the Appellant is to serve the appeal book in the manner prescribed by paragraph 7 of the orders made on 15 April 2024 is extended to 4.00 pm on 23 May 2024.
5.The time in which the Appellant is to file and serve the Summary of Argument and List of Authorities upon which she wishes to rely is extended to 4.00 pm on 23 May 2024.
6.The time in which the respondent is to file and serve the Summary of Argument and List of Authorities upon which he wishes to rely is extended to 4.00 pm on 20 June 2024.
7.The application in an appeal filed on 8 May 2024 is otherwise dismissed.
8.Costs of the said application are reserved to the hearing of the appeal.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTO’BRIEN J:
The matter requiring determination is the Application in an Appeal filed on 8 May 2024 which seeks an order extending the time for the Appellant to comply with orders made by the Appeal Registrar on 15 April 2024. Those orders required the Appellant to file and serve the appeal book, the separate consolidated electronic transcript, and her Summary of Argument and List of Authorities by 4.00 pm on 13 May 2024. They expressly provide that pursuant to r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Family Law Rules") the Appeal will be taken to be abandoned if the appeal book and separate electronic transcript are not filed and provided to the Court by the time specified.
The Respondent is required to file and serve his Summary of Argument and List of Authorities by 4.00 pm on 10 June 2024, and the Appeal is listed for hearing on 25 June 2024.
Background
It is necessary to briefly summarise the relevant history of the matter to give context to the application.
After an undefended trial in which the Appellant did not participate, orders were made by Sutherland CJ on 26 March 2021 finalising the parenting and financial proceedings then on foot. The orders provided for the children of the marriage to live with the Respondent and spend time with the Appellant. Various specific issues orders were also made in the parenting case. Orders were also made for alteration of the parties’ property interests, including for the Respondent to transfer to the Appellant his interest in the home in which she continues to reside. The Appellant was to retain certain properties in Suburb B, and City D, and the Respondent was to retain certain other properties in Western Australia.
The Appellant told me this afternoon that she commenced an Appeal against those orders but subsequently withdrew it.
The Appellant commenced further parenting proceedings by an application filed on 14 February 2022. Final orders were made on that application on 10 November 2023, providing for the Respondent to have sole parental responsibility, and for the children to live with him and spend time and communicate with the Appellant in accordance with their wishes.
The orders the subject of the present Appeal were made by a Family Law Magistrate on 29 January 2024. The orders dismissed interlocutory applications filed by the Appellant on 4 December 2023, 5 December 2023, and 7 December 2023, and ordered the Appellant to pay the Respondent’s costs of those applications and of the proceedings concluded on 10 November 2023, fixed in the sum of $20,000.
The interlocutory applications just referred to sought a range of orders which are difficult to decipher. Among other things, the Appellant sought to discharge all orders made by Sutherland CJ on 26 March 2021, 'review' certain of the orders made by the Family Law Magistrate on 10 November 2023, and set aside certain other orders. The applications filed on 4 and 5 December 2023 sought to set aside all orders made on 26 March 2021; but the application filed on 7 December 2023 sought to compel the Respondent to comply with those orders, at least insofar as they related to the parenting proceedings.
To the extent the interlocutory applications purported to seek orders to discharge the property orders made by Sutherland CJ on 26 March 2021, those applications were incompetent. It appears that the Appellant now recognises that, as she foreshadows an application pursuant to s 79A of the Family Law Act 1975 (Cth) ("the Act").
The Notice of Appeal filed on 26 February 2024, even allowing for the difficulties faced by a self-represented litigant, is problematic. Some of the grounds are difficult to interpret; others appear, at least on their face, doomed to fail. Nevertheless, in relation to at least some of the grounds it is possible to ascertain the error on the part of the Magistrate which is asserted, and on the materials presently available I cannot confidently conclude that there is no merit in any of the grounds advanced.
The relevant legal principles
The discretionary power to grant an extension of time pursuant to r 15.06 of the Family Law Rules is exercised in accordance with well-established principle. The object of the rule is to ensure that the Family Law Rules themselves do not become instruments of injustice. The Court will have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the prejudice to each party on the alternative outcomes of the application for an extension (Gallo v Dawson (1990) 93 ALR 479, 480 (McHugh J)). While case management principles are not an end to themselves, the Court may properly consider the interests of other litigants, the limited judicial resources available to the Court, and the proper use of those limited resources (Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175).
The Appellant’s evidence
In her affidavit filed in support of the present application, the Appellant says that she has faced "unexpected technical challenges, such as essential software crashes and tool issues and hardware failure" (sic) impeding her ability to complete the documents required to be filed. She describes those difficulties in limited detail. She says that her practice has been to put all personal data including court documents on a hard drive external to her laptop and other devices, as during earlier proceedings she was "required to have [her] devices ready to hand in to [an] IT single expert".
That said, she goes on to say that the technical difficulties to which she refers commenced around 25 December 2023, and that she reached the conclusion that her hard drive had entirely failed one week prior to the hearing on 29 January 2024. She was accordingly well aware of any such technical issues not only at the time of the substantive hearing, but at the time she filed her Notice of Appeal and at the hearing on 15 April 2024. She says further that she is in the process of resolving those issues. Whatever those issues may in fact be, she still has access to all the relevant documents on the primary court file and can readily obtain copies as required.
Disposition
The present application is unclear in its terms. While an extension of time is sought, the parameters of that extension are not specified.
At the hearing this afternoon, it became clear that the Appellant seeks to extend the time for compliance with the orders made on 15 April 2024 to some undefined point in the future. She says that she intends to file in the Family Court of Western Australia an application pursuant to s 79A of the Act to set aside the property orders made by Sutherland CJ on 26 March 2021. She seeks that the extension of time for her to comply with the orders already made in the Appeal be long enough to await the outcome of that foreshadowed application, or possibly the determination of the component of that application in which she also proposes to seek interim financial relief.
That proposition is self-evidently without merit.
The Appeal has already been listed for hearing. There is clear prejudice to the Respondent if the hearing does not proceed as scheduled or, worse still, is simply delayed to an undefined point in the future.
The foreshadowed application has not yet been filed. The grounds on which it is proposed to be based are only vaguely articulated. There is no evidence presently before me to support even a tentative conclusion as to its prospects of success.
Even assuming the foreshadowed application is brought promptly, on the proposition presently advanced it would have to run its full course before attention would return to the preparation and disposition of the Appeal which is already listed for hearing. If the foreshadowed application proceeded to trial, rather than being dealt with summarily, it is unlikely that it would be heard within the next 12 months. That alone would render the proposition presently advanced by the Appellant untenable. Given the nature of the foreshadowed primary application, the secondary proposition that an extension of time in the Appeal might only extend to the time at which the Appellant obtains interim financial relief does not assist.
There is, however, a more fundamental issue. The prosecution and disposition of the foreshadowed application would not, as the Appellant believes, inform the disposition of the Appeal. Equally, the disposition of the Appeal as presently listed would not of itself preclude the bringing of the foreshadowed application.
To the extent the Appellant seeks the extension of time just described, her application must be dismissed.
That said, as properly conceded by counsel, there is no discernible prejudice to the Respondent in granting the Appellant a short extension of time within which to comply with the relevant orders provided the Appeal proceeds as presently listed, and he has adequate time to file his responsive documents. The Appellant, properly, submitted that if the open-ended extension of time she seeks is not made, then a short extension beyond the current deadline should be granted.
The Appeal is listed for hearing on 25 June 2024. The orders of 15 April 2024 provide for the Respondent to have 28 days after the filing of the appeal book and the Appellant’s Summary of Argument and List of Authorities within which to respond. That can still be accommodated if a short extension of time is granted to the Appellant.
I propose therefore to extend the time for the Appellant’s compliance with the relevant orders until 4.00 pm on 23 May 2024, and the time for the Respondent to file and serve his Summary of Argument and List of Authorities to 4.00 pm on 20 June 2024. Those extensions grant the Appellant as much leeway as can be accommodated if the existing hearing date is to be retained, and the process is to be procedurally fair to the Respondent.
Additionally, the orders of 15 April 2024 require the Appellant to provide a separate consolidated electronic transcript to the Western Appeals Registry and to the Respondent. The relevant transcripts have already been produced at the Family Court of Western Australia’s expense and are available to the parties and to this Court. Counsel sensibly acknowledged that there is no prejudice to the Respondent in discharging the order of 15 April 2024 to the extent it required the provision of those transcripts. I propose to do so.
The attention of the Appellant has already been drawn by the orders of 15 April 2024 to the effect of r 13.22. I reiterate for her benefit that the Appeal will be taken to be abandoned if she fails to file the electronic appeal book (by downloadable link or other electronic means) within the extended time permitted under the orders to be made today. If that occurs, it will remain open to her to apply for the Appeal to be reinstated. Any such application would fall to be determined on its merits.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice O'Brien. Associate:
Dated: 13 May 2024